The Sun.
London, England, 1844-09-02 00:00:00

-...

41_ast:vehr 11ce ad taken place and, therefore, he felt b ound to
rththat question in the negative. The Bth, (Ines-
tther iltit.hY their Lordships to the judges was, 1‘ ho-
le
;,,th,e,se was any sufficient ground to reverse or vary
tith•se:ugnient on account of the sentences, or any, or
ses..._',"f them, passed on the respective defendants,
titirrrda been had particularly to the recognizances re-
os tes' and to the period of imprisonment dependent
04 v.., entering into such:recognisances ? ' Now,
in," question the Judges saw no ground for vary-
or reversing the judgment on account of the
thusiternces The defendants h.ad, under
„atesentences, the power to enter into their recogni-
and e.; and thereby shorten the term of their sentence,
passed was to be presumed that at the time the Court
hake 4. Judgment, it took care the defendants should
All t,!une enough to enter into their recognize ces.
the Le Judges concurred in agreeing, therefore, that
Bth question must be answered in the negative.
teient e 9th :question was, " Whether there was any suf-
the jasgr"uncl to reverse the judgment on account of
sohis "Merits in the assignments of error coram
1 Itated?r any or either of them, or of the matters
of th such assignments of error, or any or either
be meta Id" Now upon this question it was to
-uses,
viers ed, that the error assigned, in the writs
the c' with the exception of Steele s, the same. In
t4t rof Steele, however, the error assigned was
it Lade indictment was not properly found, because
slis • liot been stated on the back of the bill by the
• ritrs th 41, •
witnesses had been sworn. Now,
etlissr:sPeot to the error of fact alleged by all the
theirpraversers, the answer the judges returned to
is th tiordships was this, that the statute of Victoria,
courtat respect, repealled the former one, and that the
Inland ursued by the Court of Queen's Bench in
*ls i, with respect to the swearing of witnesses,
Oa till accordance with the opinion of the judges.
'44') Point they thought the decision of the Irish
It sal was correct. From the preamble of the Act,
enatt he expected that the alteration about to be
the ,r 7 would be generel, and without exception, and
indict acting words accordingly were, that in cases of
kr, .ruent where bills were to be laid before a grand
T
44 Cl l_reland, the Clerk of the Crown at assizes, and
ktied-„e1.1 of the Peace at the sessions, should make
,i ltS furs, cement thereon directly, to give this enactment
4108 e force that was to make it applicable to all cases,
only illarticulars officers must be taken to be named
statute Way of example or instances, and not that the
tbost,-,,as applicable to those courts only, of which
tleveirvrsons were the proper officers. It would be a
of a mode of introducing a restriction in the words
remedial Act, to confine it to those courts only.
tro:-:lerk of the Peace at sessions and the Clerk of the
0,0 nat assizes held offices and performed duties anal;
so
vsism each other, and that construction of the Act rea
tsser-4 further confirmation from that part of it which
tleelan to the oath, for the latter part of the statute
tot L'eu that the foreman of the grand jury should
Isliosate
,the Power of examining witnesses on oath
ilklieLri"tues were not indorsed on the back of the
of by the Clerk of the Crown, not the Clerk
the st;sassizes. Upon a reasonable construction of
I'lass,-,blite, they thought that this ground of objection
'swered. And as to the assignment of error in
assigned by Thomas Steele, it was founded
tort' e Part of the Act which was direc-
after and not essential. He did not think
,144 a 'witness had been fully sworn and examined,
elisi,"rile bill returned on his evidence, that it would
44 11;„„e
ir;4l Act of its legal operation that the foremtan
he eted to comply with certain of its directions.
t si'4,l2th question they all concurred in agreeing
P(3ese,"lst be answered in the negative. The tenth
t e-‘,11.1311t was this—" Is there any sufficient ground
,_
Imioisiersing the judgment by reason of its not con-
h,..Arl any entry as to the verdicts of acquittal ?"
Ztateseareful search made at the Crown-office, no
o "as to- of such an entry could be found where a party
which guilty of one part of the indictment
ssme3lll,-," he received judgment, and this practice.
r7ared tgnt was in conformity with law, for it.ap-
e.„„ll:.,ro Lord Hale that an entry of acquittal
,`veti %-f,"41/e die might be entered for the defendant
Zere Or. a writ of error had been brought. They
to -L°' opinion, therefore, that the 10th question
iod r answered in the negative. Upon the 11th
isast question upon which he was.
-44'isetsi-"g his opinion only, he had in
ktio„ the third question, anticipated those obser-
t4teCtirlich would otherwise apply. He had already
:Ived „"at the opinion at which they had already ar-
4eoeseas, that a general judgment upon the whole
tßie4oti /usis not to be reversed upon a writ of error by
fs_-"ated °fle or more counts being bad. He had also
miTit 's °Pinion that it would make no difference
portion Punishment Punishment was discretionary. The only
e for eee,-:, therefore, to be considered was, whether
eats
the record, being " that the defendant!,
s'as len-Vices aforesaid be fined and imprdisomneedn,
that
-,-',self a ground for reversing the Ju g t
`Lat which their attention had been called to was,
frtil- 'wordshould be that the defendant, for
t,enes s .
plai aforesaid," be fined and imprisoned.
och off, n Interpretation of these words was this—
‘4(liefQ-e"ees as were set out in those counts of the
*bin-ellent that were free from objection, and of
ras,V the defendants had been found guilty by a pro-
4th,"tding of the jury. That was the offences in the
tsifith, and all subsequent counts, and he saw no ob-
e, to the word offences in the plural number.
t:lltbuld not think that, in point of law, the words, as
lee aPPeared in the record, formed a ground of ob-
1/4Z.* He, therefore, thought that this question
vis 4 Lunt he offered it as his own humble opinion—
k.o he answered altogether in the negative.
~* Justice PATTESON, in delivering his judgment,
111,i;nat there was no difference of opinion amongst
Itisl,l4°rdships, except with regard to the 3d and 11th
Itiff4"ls• The 3d question was whether there was any
°I ground for reversing the indictment by means
Ned uefect in the indictment, or of the finding o. r
tdist-e,„,g of the findings of the jury upon the said
te,0""It• This question appeared to him to consist
41t1,sParts—the first related to the consequence of
,1 tlet feet in the indictment itself; the second to any
~-ssasrat 41 the finding of the jury on the trial. With
t' as- t° the first he would take the liberty
sis t, veering h
which it, together with the 11th ques-
he took to be in effect the same,
44 9e "IY defect in the indictment was in the 6th
st'on'y
allYlcounts,_which were bad with regard to the
e"Il• He thought that the consequences of
fat defect in the findings of the jury were cured, so
ost;:eY related to the 4th count, in consequence
fends;se-rll'g a nolle prosequi with regard to one of the
;"ts, the Rev. Mr. Tierney. Be did not think
filth Les any ground for reversing the indictment
erect:64rd to the Ist and 2d counts, by reason of any
49Pr 1,14 the findings with regard to those counts.
guilty
414 eo-eoded it was competent to find the parties
1/Pi 4nksictiraey to do a part of a thing, and that there
;41,1'1.4)1,1'1,1a ice between such a finding and the count
he cal-44 appears to have been the opinion held in
tssa-sel e the King v. Hallibany, 4 Barnewell and
l'f With regard to the other portions of the
"seetense : on those counts, he thought it might be m-
ud as surplusage. He would now proceed to theh
Ittesalltit, with which he would connect the
i,,batu-hei as he thought they were nearly identical.
'-nestinli was whether, in an "indictment consist-
-41l
gl)ft'ullnts A, B, C, where the verdict is guilty of
%-clutie -perallY, and the counts A B are good and thed
tits is bad, the judgment being that the defen -
Zllier, the offences aforesaid, be fined and imprisoned,
eon judgment would be sufficient in point of law,
This
-;"„11.,ed expressly to counts A and B, can
„,,uglnent be reversed on a writ of error.
to teast'ea a question which would be likely to arise
tee. 1 cases in the administration of criminal jus-t
ss;,,,tt seemed to be argued that they should ac
'nal cases upon the practice which took place
"s4ol easewhich, if a verdict was given in a
_st s, 111
Which was bad, the Court could not pronounce
eitli7e,nt in consequence of the uncertainty, and
e%tuere was an arrest of judgment, or upon the au-
-41 stlsit.' 91 a late case there would be a venire de novo.
of 11„:"Inal proceedings the verdict was merely guilty
aualguilty, and there was in such cases nothingc
fertacks to an assessment of damages. The
and
ot
1111Cel,-,' 43 own opinion as to the judgment, n
f°4-44.1"tY could arise. This. reasoning, there-
as ' not apply in criminal cases. But it
jtlee!elltended that on general principles the
thaMust be held to apply to each count, and
f
sassi;"," sentence must be held to be the aggregate of
Ns separate sentences, one to each count.
a'ot ae first instance in which such a notion. had been
144:4' , It had been the custom in criminal courts
°lte to pass judgment as a whole. It was
~e„,elll3' judgment. He was not awared
eal.; ease in which a writ of error ha
that ,-"r"ught in any case of felony on the ground
cif,,,e of the counts in the indictment was bad ,
41slot; eases of misdemeanor such a case should
rate - arise, because where separate counts laid
te-
offences, the prosecutor was putgenerallyyno.
vietecieetion. The defendant might, indeed, be clio,as
1141411 " separate counts, but the judgment
counts
ce..
Pastttj Passed on such separate classes of _
If
tffsu 3', but that was not always the case.. If
ce were stated in various ways in various counts,.
th•the ente
utolo. nee was general, and it was the universal
Zreeliel
su:thaaint in such cases one good count.
a general sentence. In the time
fes-ise,r,(l Mansfield- a motion had been made
that the .
tt. court in arrest' of judgment, on the ground
co he "e indictment contained one bad count, but the
ease, the always declined to interfere. Now, in those.
general the
Court must have given its judgment. in a
lest form, for as it did not admit the motion in ar-
ul/41 Judgment, it did not decide if the count was
b t Nothing •
_es •
eat in h
° could be inferred from the man-
e h e Judgment was passed at assizes.
had One
eie arisen de-
"a isen sn which the superior Court
"ad Is_ one count in an indictment on which judgment
did eo7n passed at the assizes was bad, but the count
ticked recommend that the prisoner should be par-
-sii; 'which it would have recommended if the fele
Illditbs,c°llllt being bad was sufficient to vitiate t
"444 11 the sentence was such as might be

passed on any one count, the Court of Error could
not interfere, because it could not tell that the lodg-
ment had not been passed upon the good.
count. This must be the case in capital of-
fences, and must also be the case when the
amount of punishment was fixed by law ; and he
could not see why it might not be so in cases
where the punishment was discretionary. They Were
called upon to assume that judgment had been passed
in respect to each count, and then to suppose that each
count .had been properly constructed—that was the
meaning of the words this psesent judgment for his
offences aforesaid. It had been said that a hardship
would be inflicted on the defendants, beeause they
could not, if again indicted, plead autrefois acquit or
autrefois convict. With the good counts that could
create no difficulty, and it was a fallacy to suppose it
would create any difficulty with the bad ones. It did not
lie in the mouth of the prosecutor to take advantage
of it, and as long as the conviction remained, that
would be considered as good, be the counts never so
bad. Something had been said about the possibility
of a pardon for some of the offences, and not for
others. That argument went too far, for it went to
show that a general sentence was always bad, even
although all the counts should be good. There was
the case of the Queen v. Young, and a still stronger
case the Queen v. Powell, reported in 3 Barnewall and
Adolphus. In this case there had been two counts in the
indictment, one for an assault with intent to commit a
rape, and another for a common assault. The verdict
was, we find the prisoner guilty of the misdemeanour
and offence of which he is accused. The point to be
decided was whether these were nomina collectiva,
and if not to which of the two counts they applied,
because if they applied to the second only the judg-
ment which included hard labour was illegal. The
Court held that they were nomina collectiva, and
applied to both counts. That was a strong presump-
tive argument in favour of the judgment being good,
provided there were one good count. Assuming the
judgment to be bad on the Ist, 2d, 3d, 6th, and 7th
counts of the indictment, still it remained an entire
and good judgment on the other counts of the indict-
ment, and could not be reversed.
Mr. Justice MauLE then proceeded to read his
judgment. In cases in which the law had fixed the
limits of the judgment, and had left no discretion to
the Court, the Court in passing judgment could look
to nothing beyond the law and the record, but in
cases in which the law had left a discretionary power
to the Court as to the amount of punishment the
Court would and must look beyond the record, for if
it did not there would be no reason for the discretion
which had been left to it by law. Jt was moreover
the practice to look beyond the record in such
cases, and it was usual in passing judg-
ment to consider the evidence which had
been given at the trial. In cases, also, in which the
law only showed the kind of punishment—such, for
instance, as fine and imprisonment —and left the
amount of such fine, and the duration of such im-
prisonment, to be awarded by the Court, it was usual
for the Court, in deciding on its judgment, to consider
circumstances which did not appear upon the record.
With respect to the question whether the record found
any offence, and what the judgment should be, as no
more was necessary to determine those questions than
a right construction of the record, and a knowledge
of law, they were fit subjects for a writ of error, by
which the record was brought before a superior court
of law. But the question of the amount of
punishment was not the subject of a court of
error, which had not before it the evidence
given at the trial, or the other matters
which determined the amount of punishment. It ap-
peared to him, therefore, that when the record showed
that the defendant had been convicted of an offence
for which he was liable to pay a fine, and to be impri-
soned and find sureties, there was no ground for re-
versingthe judgment, but there were other parts of the
record upon which, if they stood alone, the judgment
could be passed. If it were otherwise, it might well
be that a judgment would be reversed by
a Court, of error, which, in the case of
the Court below, would have subjected the de-
fendants to the very same species and amount of
punishment. He thought, therefore, that upon the
record, neither in the case supposed by the third
question, nor in that supposed by the 11th, could the
judgment be reversed by a writ of error.
Mr. Justice ComauAsz said the Lord Chief Jus-
tice of the Common Pleas having delivered
the unanimous opinions of their Lordships ex-
cept as to the third question, and the 11th,
it was unnecessary that he should advert to
any other than these two. the third question had
already been read, and therefore he should not repeat
it ; and to that question he answered that, in his
humble opinion, there was sufficient ground for re-
versing the judgment by reason of the defects of the
indictment, and by reason of the defects of the find-
ing of the jury, and the judgment thereupon.
And he grounded his opinion on the reason
which would be given at length in the answer to the
11th question, which reason had been referred to,
and which appeared to him to apply to all the defects
to which the question referred. To the 11th ques-
tion
he answered that, in his humble opinion, where
an indictment consisted of three counts, A B and C,
and counts A and B were good, and count C bad,
and judgment were given against the defen-
dant for the offences charged, that he be
fined and imprisoned, such judgment was insufficient
in point of law, if confined expressly to the counts A
and B, and ought to be reversed on error. He was
well aware that a contrary opinion had existed gene-
rally among the members of the legal profes-
sion. But there was, he thought, no difficulty
in seeing- what was the reason of this ge-
neral impression ; and when they looked for
any authority to support it, there seemed
to him to be little or none. The authorities relied on
arose on motions in arrest of judgment. The expres-
sions used referred to the state of things before judg-
ment was pronounced. They were quite true as ap-
plied to criminal proceedings in that stage, but the case
might be different after judgment was given.
The authorities relied on were the Queen v.
Ingram, Grant v. Aspen, and the King
v, Bedrick. His opinion was, that though
the principle was true, with reference to that stage of
the question, it was not true with respect to the case
of a writ of error after judgment had been recorded.
The former had been made to the case of Young
and others, in which two counts were good and two
bad ; and in which the judgment was held to be good,
notwithstanding the badness of two of the counts.
But the objection raised to these counts was
noticed in that judgment as groundless, nor
did it appear to have been at all insisted upon in
argument. Therefore it was to be considered, not as
a decision, but as a precedent only ; and in a Court of
Error, where the question now arose for the first time,
it could not, he thought, be considered as a binding
authority. If they considered the question on
principle, the argument in support of the
sufficiency of the punishment seemed to him
to stand thus—when there was but a single count in an
indictment, as was the case in old times, although it
contained several idle and superfluous allegations, yet
if it contained sufficient pertinent matter to sustain a
criminal charge, the Court was warranted in passing
judgment on the whole count, and passing by the idle
matter ; and in like manner, now that it had become
usual to insert many counts in an indictment, if there
were one good count and others which were bad,
the Court might treat the bad count as idle and
superfluous matter, and passing it by without regard,
give the appropriate judgment which was united to
the good count. The practice at the assizes was in
conformity with this view of the case, when it was
not customary to do more than give a general judg-
ment in the indictment without stopping to consider
whether any counts were bad in point of law. But
to this view of the case he should answer, that he did
not consider the case of an indictment in a single
count, containing some idle and superfluous allegations,
could be placed on a footing with an indictment con-
taining superfluous counts—some good and some bad.
For in the former case, the indictment professed to
contain one criminal charge only ; in the latter, it pro-
fessed to contain several distinct charges in each count,
as in the nature of a separate indictment. And he
contended that the defendant was entitled to know on
which count he was sentenced ; and the reason why
he was entitled to claim that right was, that if con-
victed of an offence on an insufficient indictment, and if
judgment was passed against him, he might plead the
conviction to any other indictment as the same
charge. In the case supposed, if the defendant were
indicted for the same offence, and that it were in-
sufficiently charged in count C, how was the Court
to deal with the case—how were they to know
whether the party had suffered the sentence of the
law or not ? It might be said that the Court had
only to look to the original record, and that they
must be aware that the Court below, in passing
sentence, was aware of the defect in the count, and
did not pass any portion of the sentence with respect to
it. That reasoning might be justif the Court were always
infallible ; but the presumption that the Court had
not committed an error was not a safe one to act upon,
and might be directly at variance with the fact.
Surely there ought to be some more safe ground on
which to judge of what the Court had done. Every
record ought to state expressly and explicitly what
had been done, in order that the party might not lose
the benefit of the plea which he was entitled to, and
that the Court of Error might be enabled to see whether
there had been an error committed, and to redress it
if it existed. Lord Coke said, in the Third Institutes,
p. 214, that in the case of an acquittal the Judges
ought before judment to look into the old record, and
upon due consideration thereof to cause it to be en-
tered. It was said by Lord Hale, p. 293, vol
that where the indictment was insufficient it
reason to have quod eat sine die special in the cause,
and then the acquittal was applicable only to the in-
sufficiency of the indictment. The remarks of these
two eminent judges were made with reference
to the entry of a judment insufficient in facts