The Sun.
London, England, 1844-07-06 00:00:00

Mr. KELLT7-That could not be; the law would not,:allow
it. The charge must be for one offence. ,
Lord CAMPBELL said there was no doubt that one:count
might be drawn.

Mr. KELLY —Yes ; 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
for one conspiracy ; under that the whole eight might be con-
victed of all the acts ; but they could not split up the charge
of one offence into a great many offences. In order to warrant
this finding, there, ought to have, been three separate counts.
. .

If these fiiiffings did not imply three several convictions, in
what language could they be stated? Ile would venture to
say that if his Learned Friends were to sit down to frame an
in ictiment for every conspiracy to be found against these
seven, eight, and three individuals, 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 charge. It will
result, therefore, when these counts and the finding are
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 might have been committed at intervals
of a month from each other, and in which the parties to one
offence might be totally ignorant of another. Certain of
the defendants had in fact been found guilty
of two more offences than that presented by the
grand jury. They pleaded to one offence, and three
offences were found against them. The petty jury were
sworn to try one issue, and they had found no less than three
issues against the defendants. Where would any precedents
be found like this? In all the cases of conspiracy that had
been tried of late years, he should be surprised if they could
find one.

Lord CAmrnELL---Assuming that the jury had found them
guilty of more than was charged by the indictment, was any-
thing to be found in the books as to the effect of that finding?
Mr. KELLY—NO; because he supposed the books presented
no precedent for such a fact.
The LORD CHANcELLon—In your case, Mr. Kelly, the first
finding is the whole; yet you say " as to the residue," now
there is no residue.

Lord BnouGuAni—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
offences where only one was charged, and the Court sen-
tenced the defendants according to that finding. How
then could their Lordships say that the first finding
included all the others ? How could they reject
any one of the other averments of the verdict ? Per-
haps they might rdect that part of the finding against
Mr. John O'Connell, for which he had already suffered
two months' imprisonment. He had referred to the direction
of the Judge, which he must say was the very reverse of the
direction of Mr. Baron Rolfe, in the case of Mr. F. O'Connor. In
the present case, the Judge charged directly for the finding of
three conspiracies. The jury found accordingly, and sen-
tence was passed accordingly. Could their Lordships say,
that in atrial at bar before the four judges, under such cir-
cumstances, the first finding alone was of any importance?
The Loan CHANCELLOR—The judgment was given on
the evidence.

Lord CAmpBELL—The Court could only look to the record,
and apportion the sentence according to the number and
amount of the conspiracies charged.
The Lon') CmuccELLon—That would have nothing to do
with the punishment. It does• not practically import that,
because found guilty on three counts, they would be punished
for three conspiracies. But that does not signify much now.
The question before us is not one of punishment, but one
of error ; and if there is error, even though on your
own sid, all we have to do is to reverse the
sentence. If there is error, however technical it may be,
you must have the benefit of it. It will not do to say the
parties have suffered much. All you have to do is to show
error.
Mr. KELLY was obliged to his Lordship, and felt a strong
conviction that he had done so, and could further do so—for
it was clear that the traversers had been found guilty of a
greater number of offences than the grand jury had directed
them to be put upon their trial for. Here a man was con-
victed of two conspiracies as to which he had never been put
upon his trial—as to which be had never pleaded—as to
which the jury had no power to give an opinion. With re-
spect to the findings, they could not return one and reject
another. They must stand together, or they must fall tome-
thee.. Each taken respectively was good as a count—all
taken together were good as counts-'—but on them the parties
were brought in guilty of too much.
The LonD CHANCELLOR—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 case until ten
o'clock on Monday morning.—Adjofirned accordingly.