The Sun.
London, England, 1844-07-08 00:00:00

THE STATE TRIAL'S.
'THIRD DAL)

WRIT OF ERROR.
HOUSE OF LORDS, July .6.
VITE QUEEN At:4MS? O'CONNELL AND OTHERS.

• Mr.. KVILLY (in continuation froth our :After-
moon Edition of Saturday) said—Supposing . that
itipon the same sheet of paper eight persons agree to
rob -a garden, three of the .eight!:, agree!' to
murder the inhabitants of a house, and seven. of • the
eight agreed to rob another person- on, the
,hightvay,
would it wake any difference that these three agree-
merits were on the same sheet of paper, er'entered into
at the same time? Would it be one or three agreements?
at was perfectly clear they were. three agreeinente for
three different purposes. To carry this a little-further,
he would suppose that three persons were frirlieted:for a
conspiracy to compass the Queen's death, MIA thitat five
persons were indicted for a conspiracy to 'ci*Critivd'llie
Legislature, and that the three ,were found' ;City
of high treason, and were pardoned by-. th!....giteen.
If it were one conspiracy the party could not .he_in-
stieted over again if he had been acquitted cf thb.cheige
of high treason or had received 'the-Qii.e.en's
pardon. In that case the party could not he in-
dicted again for the conspiracy to commit, yea-
‘ion. Suppose three of the parties 'hid agreed
together to compass the Queen's death, and four Other
parties in the same room, not knowing of .thi4 Pre-
s-Leos agreement between the three, agreed with
them to do certain; acts for the •purposc-of,: ever-
awing the Legisiature, could it .be colterided
in such a case where three parties had agreed to (ti 'One
thing, and those same three, with five others, had agreed'
to do a different thing, that it vies one and 'the: same
conspiracy? He would bring it to another test.
Suppose the Sovereign had giv'en the 'three, a
free pardon for the treasoh, would that 4 free
pardon also be a free pardon foi the conspiracy' with
the five to overawe the Legislature? . Here were eight
persons charged with attemptingto:create disaitee4on,
in the army. Five were found not gailty,l If it Were
one conspiracy they were improperly found not 'guilty,
because three had been found guilty.: New,-the same
person could not be guilty and not_guilty of oneuad the
-•atne conspiracy. That led hini to. the charge which
f^..l been made: o the jury. If this were one conspiracy,
'on as evidence had been given against all the-de-
. :as, every act done by one was evidence against
tl, '-hole. He would ask,- would evidence against
of these persons who were proved to
been 'guilty of conspiring. to spread
Istion in the army be admissible against the five,
there was no evidence to convict themwith being
.• .rties to that conspiracy ? Suppose eight agrOed to do
N--. 1 cud 2, seven to do Nos. 3 and 4; and- three to do
;—suppose evidence offered against the three on that
could that be admitted as evidence against the
re:Joining five, on a charge of spreading disaffection:
sie,anst the Queen ? Would not the judge he
teltrid to- tell the jury that the sets 'done
t,y the three, in furtherance of one conspiracy,,
wee,, not admissable in evidence against the other five,
who were charged with a different conipiracy ? • •
The LORD CHANCELLOR-All this was practicable,
bat difficult.

Mr. KELLY—It was so. Learned and able judges had,
in similar cases, separated the evidence which applied
M) one defendant from that a hich applied to another,
but he used this argument to show that• this difficulty.
'would not-result if one conspiracy only were charged.
It was because three different conspiracies were
charged that it became necessary to discrimi-
nate the evidence. To try that question, let
them suppose an indictment framed so as to comprise
the charges on the findings. By that indictment, eight
persons would be charged with conspiring to do Nos. 1
and 2 ; seven, Nos. 3 and 4 ; and three to do No. 5. If
evidence were offered affecting one of the parties to the
last conspiracy, the Judge would have to discriminate
between that evidence and evidence affecting the whole
'of the parties to the other conspiracy. But if
they were charged with one conspiracy, an act done
by one could be evidence against all. But in ' the
case in question the indictment charged only one
onspiracy, and the finding was for three conspiracies,
• Ile would suppose that any of the eight persons whose
tames appeared in this indictment were to' be indicted
f,v,vr again for the matter contained in the first 'count,
thisse who had been found guilty of it would .be found
guilty of but one conspiracy, and it would then be
autrefois conviction. If it was but one offence
_there was upon the same record conviction
and acquittal ; so that if the party was indicted for that
one offence, if he be indicted over again on that offence,
what was he to do 7' Was he to plead autrefois convict,
or autrefois acquit ? That was the only way the matter
could be met ; it would be a conviction of part of one
offence, and an acquittal of another. 11e hoped
if that was so, it would be defined, for he could not
ate what part of a conspiracy was. It was either, one
12ffence, or none at all : it could not be split into parts.
A conspiracy to rob a garden and burn a house must
I a two offences, if he was found guilty of the one and
acquitted of the other. Upon evidence being given of
conspiracy, it must be with respect to one of several
tnlawful acts ; the party charged with the several.might
t e convicted, but if that was so, he must be convicted,
tot of part, but of the whole crime, because the conspir-
soy was the crime, but it must be well described.
1 hey could not split an offence into parts; and where a party
di as convicted of two offences, the indictment was wrong.
'I bey might subdivide a charge of this kind into a
Treat maw parts and convict on one or more •of any, one
of those parts ; but directly they had convicted two or
mare of any one charge, the count was quite suffi-
Tient. They could only convict persons of one offence
under one charge. Upon an indictment for burglary, a man
might be found guilty of burglary or larceny, but only for
me offence. Ten men might be indicted for stealing ten
11, r.es, and a great variety of evidence affecting various per
night be tendered—the whole ten might be convicted of
J. ig the ten horses. There were a hundred different con-
, bre convictions under that ono count, but still there
7.1 be but one conviction. The conviction must be for one

• . .
Loma CHANCELLOR—Take the case of two parties, A
11, indicted for stealing two horses, A for stealing one,
it.<l l; .for stealing another.
Z. KELLY—That could not be; the law would not allow
it. "l'he charge must be for one offence.
Lord CAMPBELL said there Was no doubt that sne"tount
llai4ht be drawn.
Mr. KELLY—Tes; but the practice Was against it: The
conviction must be under separate counts, each setting forth a
separate offence. There is an indictment here of-one charge
fur one conspiracy.; under that the whole eight•might beicon.
vicied. of all the acts ; but they could not split up the charge
nt (iie offence into a great many offences. In. order to Warrant
t Lai finding, there ought to have been three separate counts.
If these findings did not imply three several convictions, in
what !linguae could they be stated? LIE would ventirxe to
sexy that if his Learned Friends were: to sit down' tb frame: an
in ictraent for every conspiracy to be found against
,these •
seven, eight, and threeinilividuals, they Would adopt the very
language here held. , Again, therefore, a difficulty-presented
itself. Now, the defendants could plead autrefois convict, or
autrefois acquit. A man must either be convicted or ac-
quitted of the offence ; he denied that it was the language of
the law to talk of a part of an offence. The charge here was
for a conspiracy, and they must be. either convicted or• ac-.
quitted; they could not divide one offence- into two or
more parts. On this finding they ought to have been
at once acquitted or convicted of the same elierge.. It will-
result, therefore, when these counts and the finding
.iire
carefully considered, that the grand jury having presented
but one offence, one conspiracy to do several . unlawful acts,
certain of these-defendants have been convicted of, three con-
spiracies, which, might have been at different times, and
different places, that itrlght have been committed at intervals
f a month from each other, and in which. the parties to one
t &nee might be- totally ignorant 'of another. Certain of
the 'defendants hid in fact been found .guilty
cf two more ollences than that prelented by the
grand jury. They pleaded to one offence, and three
cflences were found againit them: - The petty jury were
-sworn t,o try one issue, and they had found no lest than three
issues against the defendants. Where would any precedents
be timid like this? In all the cases of conspiracy that had
Iceu tried of late years, he should'be surprised if they could
find one.

• •
Lord CArureELL---Assuming that the-jure hadfound Ahem
ir guilty of more than was charged by the indictment, *as any-
thing to be found in the books as to the effect of that finding?
Mr. Kgr.i.t7—No ; because he supposed the books presented
. or) precedent tor such a fact.
The LotitiCtrAsreEmon—ln your case, Mr. Kelly, tbe-first
finding is the whole; yet you say "as to the residue," ,now
there is no residue.
Lord BROUGHAM—And they say " the remainder Of the
;residue." What do they mean by that? .
'Mr. KELLY said that the fact was, the jury had found three
t,ffeecos where only one was charged, and the Court sett-
' -tericed the defendants according to that finding. how
then could their Lordships say that the first finding
inclaried all 'the others ? How could they reject
. ::,•zry one of the other averments of the verdict ? Per-
haps they might reject that part of the finding against
Air. John O'Conaell, for which he had already suffered
two months' imprisonment. He had referred to the, directiop
of the Judge, which he must say wasthe very reverse of the
direction of Mr. Baron Rolfe, in the case of Mr. F. O'Connor. In
tlle present case, the Judge charged directly for the. finding of
three conspiracies. The jury found accordingly, and:sen-
t( ace was pastel accordingly. Could their Lordships "say,
that in a trial at bar before the fourjUdges, under such cir-
curnstances, the first finding alone was of any importance?
• The Loan CHANCELLOR—The judgment was
,given on
. t e evidence.

•
Lord Cco'BELL—The Court could only look •to the record,
and,ariportion the sentence• according to the number and
amount of the conspiracies charged. •

, . .
The LORD CrtascELwn—That would have nothing-to do
a.th the punishment. It does not practically-import, /hat,
cause found guilty on three counts, they would be punished
r three conspiracies. But that dOeS not signiti much now.
he question before us is not one of,punisinnent, but one
error ; and it' there is error, even- though on your
side, all we have to do is to reierse- the
atence. IfAhera is error, however technical it may. be,
you must have the benefit of it. It will not do to say the
arties have auffzed much. All you have to do is to show
ern r. •

•
• Thlr. KELLY was obl'ged to his Lordship, and felt a strong
eviction that he had done so, and could further'do so—for
it was clear that the trimixsers had been found .guilty of a
g, eater number of offences than the grand jury had directed
ti em to be put upon their trial for. Uere a man was,con-
v:eted of two conspiracies as to which he had never been put
upon his trial—as to which he bad 'never pleaded—as to
the jur' had no power to give an opinion. With re-
ect to the findings, they could not return one and reject
smother. They mtast-etand together, or they must fall toge-
ther. Each taken respectively was good as a count—all
taken together were good as counts—but on triem the parties
were brought in guilty of too much.

The LORD CLIANCELLOR—You are now arrived, Mr. Kelly,
at a very important part of your argument; and as we
agreed to sit only until half-past three, and it is now that
time, we will adjourn the further hearing of the cave until ten
o'clock on Monday morning.—Adjourned accordingly. .

• ,
IMPORTATION Or FOREIGN RUIT, e.C.-011 Mon-
-10 lastwere landed from on board the Princess Victoria,
Captain Ma'n, from Antwerp, 280 biskets cherries and
cut anti ; and 30 baskets K alums. Same day from on
board the Emerald Isle, Capt. Bouch, from Rotterdam),
npwards of 1,100 baskets of cheriieS currants, and pots.-
Q es.—Hull Advertiser. •

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