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

indictment. Now, if upon such en I'l osi
ment as that—it was quite immaterial of how 1;01
counts it consisted—the defendants had been conv;l
of three totally different and distinct offences, and is,
then gone before the Court of Queen's Bench to rec
ent,
judgment, and had made a motion in arrest of judgren"d
their Lordships would then find a precise appli.ea,tl„,°o
this principle to the one case of an arrest of ittcPrty
and to no other. If he had succeeded in satisfying ,1
court that the count of conspiracy to injure a I:1";
credit as a merchant was ill-laid and bad in law, is
and that the count for turning the man out of his fr„
perty was ill-laid and bad in law, but that the coin?,
luting to the foreign legislature was good and Vii
law, what would have been the conduct of the ‘ll'`"s
Bench ? • Why, they would have passed sentence 115,
the one good count, and have said nothing as t°,o of
others ; whereas they would have passed a sente,nbee;
three years' imprisonment if the three offences hall .n'i
P O
proved, they would have passed a sentence of one
imprisonment for the offence of which the party
been duly convicted. Justice would then have rso
done, and the motion to arrest judgment would not!L
prevailed, because one of the counts had been held 1!0
bad. But now he would suppose the same case
,0014
a writ of error. In a case which he
put in which two sets of counts were 00i
and in which the court passed sentence. upon the $O,
one, it would be the duty of those who made up tu lite(
cord to enter judgment upon the good count, and to ssid
no judgment at all upon the bad counts.. .But if, i,e
of that, judgment were entered upon the record
_,,a
sentence had been passed for the three distinct ottirrd,
how would the doctrine then apply ? If their
ships looked at the authorities, they would find /Jena
whatever to warrant the statement that althoug!'ooo
good count would support an indictment on a tocuiiii,4
arrest jndgment, the same doctrine had ever preY,Fl
upon argument in a court of error. It was in its t!roli
cation that the error existed, and not in the dictum;
which was just and right when properly applied• is,
dictum in the King v. Ingram was perfectly corree,r
applied to an arrest of judgment ; but altogether isa
rect as applied to a writ of error. The case of the P"ii
v. Fuller was a case of reference to the judges efs
point reserved at the Old Bailey ; and the object at
not to reverse a judgment, but to submit to the,
whether the parties should be pardoned, or the j!lclT„ti,
stand as it did. The last case, that of the King V. vm'co,
established the principle for which he (Mr. KellY)0all
tended. Lord Mansfield there said that the juagt.
should'not be arrested by reason of one or more ° fol
counts being bad. But he gave this express reasCl,'
tlt
it, that the court might lessen the punishment n
count were bad. Why, he besought their Lordsbigsd
consider the effect of that doctrine falling from 'ist
Mansfield. In that ease the Court will not arres'ori
judgment, but will lessen the punishment. These tio,
all the cases that had been confirmed, and the Oleo
was, whether anything in these cases, or any 0 gopf
ruled that the principle so soundly applicable w
in arrest of judgment, applied also to writs of error. ...Ai,
had pointed out hypothetically the strange. and ins
ble results that would be caused, if this doctrine sP.tics
prevail ; it would cause the most frightful injw. o,
Parties might suffer an imprisonment of tot
and sustain perhaps the loss of a fortune ;oil
the false contents of an indictment for one
offence. When these consequences wale subt'efse
to their Lordships, he contended they must paused over
they produced them, unless there was some gra,ao
ruling authority or decision which should be bindinb tr
that House. But he entreated their Lordships t,ot tit
member that the' House, sitting as a superior COt the
error, was called on, for the first time, to lay donoti
doctrine, the effect of which would be to inflict „is'
cruel injustice. Before he passed from this pointierd
gather, he must "observe that it was not to be vircettit
at that the authorities should be so few 0%100
point. From the mode in which the cooili
law in this country was administered, it must- v::110,
occur to the minds of their Lordships that,: of
of error on charges of misdemeanour must °ld!'
very rare occurrence. With regard to cases of H
of 0
meanour at the assizes, in ninety-nine cases out. .
hundred the persons indicted were of a statiott7iio
that deprived them of the means of bringing a
error ; and_with respect to the whole of this
persons, if a point was reserved, it wasenerally Syr
s
and determined by the judges.
Lord BROUGHAM reminded Mr. Kelly that this of
decided on points of law laid down by the practice. ese
courts of law and equity at Westminster, without
coming to the House of Lords.
Mr. KELLY—Certainly. But in this case it s--f)
made out what. had been the practice in writs 01-,.0010:
It was vain to expect that there should be man,' !),icP
rities on this point. In trials for misdemeanor,
..'eeso
were removed by certiorari into the Court of 14:the
Bench, the public were generallsl satisfied 010
decisions of that Court, and on looking throfersore
books he scarcely found so many as four writs
or misdemeanour during the last century, nor ior n, it of osi
them was there anything like a decision in which : son;
diitinctly held in argument that where there was
e g00‘;
viction for several different misdemeanours °intalit
count was enough to support the indictment. ;tar
be argued that when the judgment was given to ale':
several offences aforesaid," this might be taken,, were
the several offences that were well laid. But of th
"
doubtful that the judgment was passed in reePeethat the
several offences well laid, still he apprehended .taint
judgment must be bad for ambiguity. In order
recd
the sentence it must appear distinctly on the r d
the offence or offences were for which sentence oahetbef
passed. If, therefore, the record left it doubtful W.• ;01
it was for the offences, well or ill laid, that was suffie'oo
to vitiate the judgment. But he contended that os
words " offences aforesaid" must refer to their last Ifig
dbeictginiveCent*
cedent. And in pages 78 and 79 the finding state toe'
the counts against the several defendants, and thenliPopill
diately afterwards found Daniel O'Connell guiltt good
the several offences, including all the counts, botu the
and bad. Now he would suppose, in order to she iO
meaning of these terms " several offences"--scPrees°
an indictment there were two counts—one alleglneas
offence, and the other another ; -supposing there if re
verdict of guilty on each, and then judgment if esigjisecl
nounced against the party, that he should be iraPr';oo a
twelve months for the several offences; supposlng,°` is
writ of error it was: found that' one countwas bat` Toe,
and the other good, so that there remained but one °,
well laid in point of law, what would be the inean'n''tlJo
judgment for the several offences ? It must nceit.e'r
several -offences whether well or ill charged in t"-$
n.
thtohsee. present case one meaning r°l2staere
given to several offences, whereas in cases where mast
are'only two counts other and different meanings --ty
words. Where they found se sup'
offences charged in an indictnient, and they lnlisteivol
pose them to be legally charged, the only meaning
-to the term "several offences' must be one offence.' ons
these grounds he would submit that if there we:seas
count bad the judgment must be reversed. The pr - de',
conviction was for several misdemeanours, and t_ue-esea
fendants. had appealed to their Lordships to be 'lnted'
from offences of which they had been illegally cony d"
If their Lordships did not affirm this doctrine an",,Deir
verse this judgment, the consequence would be that..,`,
Lordships would be maintaining and ISerpetuat'rrtt'iss
punishment, not in respect of offences of which Parent
had been, legally convicted, but continuing pais- co'
for offences of which the parties were not legant
parvicted, and that too upon the presumption that t"Lilis'
ties had been convicted upon the good counts. ,
court of error could not assume the jurisdiction °f ere
uh
tootr
another
on
propropriating the offences upon which the parties
tp
must
wet rse encitoi
suffering punishment ?. The only course left ope.war
their Lordships
reverseduiltffihermr
thement u
abelow:
case must be tried over again, and if the partieskr the
tchoamtmtibtatreed.
was
se
atw oinealdstnuouwe sbtlabrool
found guilty. they, must be punished according to
tribunal,to hrereivuedrg
us ewtehbricetr Jevitu. bet
beraee
their' crimes
tbe
Lordships had
in the indictment. He contended, for his owl! Pvieg
that every count in the indictment was bad ; but Ito,
been preceded by several of his Learned Frwidied
and particularly by Sir T. Wilde, who had e-4'1,1
their Lordships' attention to all the counts, be he
only trouble the House with two of the counts wide had
contended were bad in the face of them, because 1b°4090
wtheere
etshieusbiixtituhaanudf
pthheysieciagihtft.reeT, itau t/leer
eighth to the transfering of other legal matters to °
not charged any offence with legal certainty.
rtelwoatceodunttes
too }
tribunals. With respect to the sixth count it wi'sson. ►
general.. It showed no legal. offence. In order to ea'
stitute the„ legal offence of conspiracy, it mast b jilt
pressly alleged that the conspiring was. for same un t 1/0
ful object ; and if for an unlawful object, it rals- not
shoWn to be sdch, and not merely called so. It iv- ire°
sufficient to allege that persons had unlawfully-will:10st
by unlawful means to do an unlawful act. 130 i,t, Of,
be shown that the means were such as were neee",-srili,
unlawful, or that the end and object must be nee,es,„"jloolP
unlawful. This 6th count, when considered web 9 'on;
be found to amount to this : that eight Persons isea
timed, unlawfully,
and confederated to inuaaluiesieouasulyd,
procure,
foarutdh ,scr
'dcdaid
the
assisted in causing and procuring, divers 801;16*(41.-d and
seditious purpose of changing
`the
assemble in large numbers for the WO' tion
constitnied
`,the laws and
of the realm. The first part charges that they e°l.lsPper
to procoren large assembly of persons-fora certain
ios
pose. Now to procure a large assembly of pal's' wo9
not illegal ; it must be shown that the assenio /via°
illegal, or
.that the purposes for which they that
met was so. Then the count went On_ to StL`di'
they caused them to assemble for an unlawful ands tie the
tious purpose.. Now if the count stood there no) tea,
count • was clearly bad. Here the purpose was stofor
and, therefore upon that count the, only clue 'to b°
their Lordships was, whether the purpose stated_waif
unlawful and- seditious was upon that statement coy to
shown to be either one or the other? A consPir t ile'
procure changes in the Constitution was clearly nic°"osea'
gal. Could it be said that the parties who to° iwith
suns to procure the union of Scotland and Ireland" the
England, which would affect a great alteration,it be
law, were guilty of an illegal conspiracy? or c?llllielief
said that the conspiring to procure the Catholic
‘.'stises
Bill, or the Reform- Bill, both of which In"'ot?
effected great changes, had committed an illegalvras
The endeavour to procure a change in the hociaid in
legal object. Let them consider if what was 'to be
the count was necessarily unlawful, or if it we!:
eaos
brouthtabout by necessarily unlawful means. The 010
Were intimidation, caused by assembling meettiroarii(k.
'people;-Who-was to be-intimidated? Was it ly
meat or the Sovereign? That might or 'might n0t,013
°raves it any other person whom it might be 64
on
legal to intimidate? So with regard to the words, <<
on
monstration of physical force,' it was not 3,f ci froll
whom that was to operate. The count wits foe
charge
uncertainty. It ought to have been distinctly the
whom it was that was to be intimidated—on vinr: on-
; 1°"
demonstration of physical force was to operate
was 1
less th ey could establish the proposition that , to
legal to assemble a meeting.to intimidate anyto,o,_,gbostr,
operate by a demonstration of physical force On