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

GRAY V. THE QUEEN.

Mr. Justice WIGHTMAN proceeded to deliver his
opinion in this case, in which the question submitted
to the Judges was, whether a party charged with
treason and felony had a right to the peremptory
challenge of a jury after they had been sworn. '1 he
Learned Judge gave his reasons at considerable
length, and was clearly of opinion that the Court in
Ireland ought to have allowed the challenge.
Mr. Justice Coltman and Mr. Justice Williams
were of the same opinion.
Baron GURNEY said he concurred in the opinion of
the Learned Judge who had preceded him. He did
not think that the distinction of the right of challenge
being allowed only infavorem vitae was sound.
Mr. Justice PATTESON concurred in the opinions
which had been expressed by the other Learned
Judges, and thought that the peremptory challenge
ought to have been allowed.
Mr. Baron PARKE said that he regretted he felt
obliged to differ from the Learned Judges on the
question put by their Lordships. The question ap-
peared to him to be, what was the rule of common
law in allowing peremptory challenges, whether it
extended to all cases of felony or to capital offences
only? It was contended, on the part of the prisoner,
that the right of peremptory challenge existed in cases
of felony, whether capital or not; the Crown con-
tended that it extended to capital felonies only. He
considered this was a question of common law only ;
and, in his opinion, Parliament had not interfered
with the subject at least by any express statute.
The 9th Geo. IV., cap. 54, enacted that no person
arraigned for treason, murder, or any other
felony, should be admitted to the right of
peremptory challenge beyond the number of twenty.
This statute was expressed in negative terms. The
statute of the 10th and 11th of Charles 1., which was
repealed by the statute of the 9th of George IV., was
also in negative terms, and did not enlarge the right
of peremptory challenge. It left it as it existed before,
but it reduced the number from thirty-five to twenty.
These statutes left the question as it was before—a
question of common law. What they had to deter-
mine then was, what the common law on the subject
was, and to ascertain what that was, they
should have recourse to those authorities from
which they derived their information in such
cases. In the first place, the only decisions of the
Courts were those which had taken place in Ireland,
and all those decisions had been in favour of the
Crown, and had been constantly acted upon. He
thought that this was a matter of great weight and
consequence. The practice in Ireland showed that
the privilege of peremptory challenge did not belong to
all felonies, but was confined to those which were capital.
On the other hand, the English practice was to allow
the right of peremptory challenge, but it should be
borne in mind that no objection was ever taken in this
country, the prosecutions in such cases being con-
ducted by private parties and not by the Crown ; and
also that a like practice prevailed in cases of mis-
demeanour, no impediment existing to prevent the
defendant from objecting to as great a number of
jurymen as he thought proper. There was consider-
able force in the remark of Mr. Justice Crampton that
this peremptory challenge was a concession and not a
right. It had been said that the right of peremptory
challenge was not confined to cases affecting life only,
inasmuch as it had been allowed in cases of misprison
of treason. Nov it was doubtful if even the right of
peremptory challenge had been allowed in cases of
misprison of treason. At all events the statute of
Geo. IV., which;related exclusively:to Ireland, made no
mention of misprison of treason. He, therefore,
was of opinion: that the right of peremptory
challenge did not exist in cases of non-capital punish-
ment. He believed that it had not been the object of
the Legislature, when they passedthe Act of Geo. IV.,
to take away from the accused any right which he
had before possessed, by depriving him of the benefit
of clergy. Such a result had not been contemplated
by the Legislature, nevertheless such had been the
result. It was not however the duty of the Judges
to supply the defendants of the Legislature—it was
their duty to administer the law as they found it, and
in his opinion the challenge had been properly dis-
allowed.

Lord Chief Baron Poixocx was of opinion that the
Court ought to have allowed the challenge. The sta-
tute of the 9 Geo. IV. placed the law in Ireland on
the same footing as the law in England, and in this
country the right of challenge was regulated by the
statute of 22 Henry VIII. ; by that statute it was
enacted that no person arraigned for any petty treason
or felony should be admitted to challenge peremptorily
above twenty. That by implication gave him a right
of peremptory challenge under twenty. There was
nothing to show that the life of the accused must be
in danger, in order to entitle him to peremptory chal-
lenge ; on the contrary, the practice was al-
ways to allow the peremptory challenge. In
cases in which the law took away capital
punishments he- was of opinion that all the privileges
of the accused remained, unless they were expressly
taken away. For these reasons he was of opinion
that the challenge ought to have been allowed.
Lord Chief Justice TINDAL was of opinion that the
Court below ought to have allowed the challenge on
the part of the prisoner. No prisoner could be de-
prived of an important right by implication. Peremp-
tory challenge was always allowed in favorem vita,
and it was also allowable in all cases of felony, for
anciently all felonies were capital. Now, it would be
dangerous to contend that the right of challenge was
taken away, because a statute had abolished capital
punishment. The punishment of transportation for
life was unknown to our ancestors—had they known
it, a punishment almost as severe as death itself, it
was impossible to say with what safeguards they
might not have thought it right to invest the accused.
The ground on which the argument on the part of
the Crown in the present case rested was, that the
statute Ist of Victoria must be so construed by impli-
cation as to deprive the prisoner of the privilege of
peremptory challenge. It appeared to him that such
an implication could not be resorted to in the
case of a privilege beneficial to the prisoners, and em-
ployed by him in practice, if not in strict right, for
centuries, unless such implication were unavoidable to
give effect to the statute. No such necessity appeared
to exist. Upon these grounds he humbly offered as his
opinion, in answer to their Lordships' question, that
the peremptory challenge tendered in this case ought
to have been allowed.

The further consideration of the case was then ad-
journed until Wednesday.
STATE TRIALS.
O'CONNELL v. THE QUEEN (IN ERROR).
Lord Chief Justice TINDAL said, the first question
proposed by their Lordships to her Majesty's Judges
was this, namely :—" Are all, or any, and if any,
which of the counts in the indictment bad in law, so
that, if such count or counts stood alone in the indict-
ment, no judgment against the defendants could pro-
perly be entered upon them ?" The answer to this
question would depend upon the consideration whether
all the counts of the indictment were framed with
that proper and convenient certainty, with respect to
the substance of the charge of conspiracy, which the
law required. For undoubtedly, if any of such counts
were framed in so loose, uncertain, or inapt a manner
as that the defendants might have availed themselves
of the insufficiency of the indictment upon a de-
murrer, there was nothing to prevent them from hav-
ing the same advantage from the objection upon a
writ of error. To constitute the crime of conspi-
racy, it was necessary that two, or more than
two, should agree to do in effect an illegal
thing, that is to effect something in itself un-
lawful, or to effect 'something which, though in it-
self lawful, was sought to be brought about by un-

lawful means. That it was an offence unknown to
the common law, and not first created by the statute ,
of the 33d Edward I. was manifest. That statute
spoke of conspiracy as a term at that time well known
to the law, and professed only to be a definition of
conspirators. It had accordingly always been held to
be the law that the gist and the effect of conspiracy
was the hare engagement and association to break the
law, whether any act in pursuance thereof were done '
by the party or not, King v. Edwards. No serious
objection appeared to have been made at their
Lordships' bar against the efficiency of any of
the counts prior to the 6th. Indeed, there
could be no question but that the charges contained
in the first five counts did amount, in fact, to the
legal offence of conspiracy, and were sufficiently de-
scribed therein. There could be no doubt but that
the agreeing of divers persons together to raise dis-
content and disaffection amongst the liege subjects of
the Queen, to stir up jealousies, hatred, and
between different classes of her Majesty's subjects,
and especially to promote amongst her Majesty's sub-
jects in Ireland feelings of and hostility to-
wards her Majesty's subjects in other parts of the
United Kingdom, and especially in England, which
charges were found in each of the five counts, wh.ch
first occurred in the indictment, did form a distinct
and definite charge in each against the separate de
fendants, of an agreement between them to do an
illegal act. It, therefore, became unnecessary to
consider the charge of conspiracy to do other
acts whi_h were alleged to be within the scope of the
agreement. With respect, however, to the sixth and
seventh counts, in the form in which they stood upon
that record, they all concurred in the opinion that
they did not state the illegal purpose and design of
the agreement entered into between the defendants
with such proper and sufficient certainty as to lead to
the necessary conclusion that it was an agreement to
do an act in direct violation of the law. Those two
counts (lid in substance state in each of them the
agreement of the defendants to have been to cause
and procure divers subjects to meet together in large
numbers for the unlawful and seditious purpose of
obtaining, by means of the intimidation to be thereby,
caused, and by means of the exhibition and demon-
stration of great physical force at such meetings
changes in the government, laws, and constitution
of the realm. Now, though it might be inferred
from these counts that the object of the defendants
was, probably, illegal, yet it did not appear to them
to be so alleged with sufficient certainty. The word
"intimidation" was not a technical word, it was not
vocabula mortis, being a necessary meaning in a bad
sense. It was a wprd in common use, employed, on
this occasion, in its popular sense, and, in order to
give it any force, it ought at least to appear, from the
context, what species of fear was intended, or upon
whom such fear was intended to operate. But these
counts contained no intimation whatever upon what
personsthis intimidat ion was intended to operate. It was
left in complete uncertainty whether the intimidation
was directed against the peaceable inhabitants
of the surrounding places against the subjects
of the Queen dwelling in Ireland, in general
against persons in the exercise of public au-
thority, or against all the subjects of the realm.
They were looking to the obtaining of these changes
by the exhibition and demonstration of large num-
bers, without looking to the using, or threatening to
use, such numbers against any person or bodies of
her Majesty's subjects, seemed to them (the Judges) to
be simply an exhibition not intended to be carried fur-
ther. The ninth, tenth, and eleventh coun is the Judges all
concurred in the opinion did sufficiently charge the
defendants with agreeing with others for purposes
which were in violation of the law of the land. He
thought it unnecessary to state authorities for the
opinion that the agreement of the defendants with
others to weaken the attachment of her Majesty's
subjects to the ]awful institutions of her kingdom, to
bring the laws into disrespect, and to supercede the
lawful tribunals established for the administration
of justice, was an agreement for purposes contrary to
law, and was rightly charged, especially in the 11th
count. As to the 6th and 7th counts, the Judges had
no doubt that they were bad in law, and that if they
stood alone, a verdict for the defendants would pro-
perly be entered upon them. The next question put
to the Judges by their Lordships, "Was there any de-
fect, and if so, of what nature in the finding of the
jury, and the entering of that finding on the record?"
On this question the Judges were all agreed, that the
finding on the first, second, third, and fourth
counts was not supportable in law. In respect to the
first and second counts, they held the finding to be
bad, on the grouud that the jury found the eight de-
fendants guilty of a joint conspiracy on each of these
counts; but they found certain ones of the eight
guilty of other and separate conspiracies under the same
counts. The finding was bad as to the third count,
because the jury found three of the defendants guilty
of all the charges, all the defendants guilty of
certain other of the charges, and all, except Thomas
Tierney, guilty of others. On the fourth count they
found that all were guilty of all the charges except
Thomas Tierney, who was guilty of part only. The
reason of the Judges for that opinion was that there
was only one unlawful agreement charged in the in-
dictment, and therefore the jury could only find one
unlawful agreement on each separate count, for al-
though it was competent to the jury to find them
guilty of different acts on different counts, it was not
competent for them to find all the defendants guilty
of one unlawful object, and some of them
not guilty of other unlawful purposes,
charged in the same count, for this was a finding of
several conspiracies on a count which only charged
one. In the case of the King v. Russell the de-
cision was strongly in support of this view, for it was
ruled that where only one offence was charged the
jury could find the defendant guilty of that one only.
The Judges, therefore, were of opinion that the finding
in the present case is not authorised by law, and was
incorrectly entered on the record. The third question
was, " Whether it was the opinion of her Majesty's
Judges that there was any sufficient ground for re-
versing the indictment, by means of any defect
in the indictment, or of the finding, or entering
of the findings of the jury upon the said indictment ?"
That question to a certain extent comprised the same
points as the 11th question; and as there was a differ-
ence of opinion amongst the Judges on these points,
he begged to inform their Lordships that he was
about to express only his own opinion in answer to
that question. In order to arrive at a satisfactory
answer to the question, it was necessary to consider it
as divided into two separate parts—first, whether, in
an indictment consisting of several counts, and the
finding being good on some and not so on others, was
that finding altogether bad on account of its insuffi-
ciency as to some parts ? Now he held it to be the
law, that where the finding is good in the criminal
case upon one count of the indictment, and the sen-
tence authorised by law has been secured, such judg-
ment could not be revised on the ground that the
finding on the other counts were bad in law.
In civil actions, indeed, if some of the
counts were good, and some were bad, and
yet the jury found a general verdict on the
whole, that judgment would be reversed, and a writ
of venire de novo would be issued, because the
damages would be assessed on the bad counts as well
as on the good, so that the Court could not say how
much damage was awarded on the good counts and
how much on the bad, in order to do justice to the
parties, and to ascertain how much damage the plain-
tiff had sustained. The verdict was uncertain in such
a case, as the count could not refer the damages, or
part of them, to the good counts or to the bad ones
separate from the others. That was the rule of law in
civil cases, but it had been always considered attended
with great inconvenience. In the case of Grant and
Assop, Lord Mansfield lamented that it had ever been
established ; and, in another case, the same eminent
person drew a distinction between civil and criminal
cases upon this point, and laid it down that
the verdict in criminal cases should stand
good, even if it were found upon only one
good count.—(He referred to Cooper, 175.) That
decision of Lord Mansfield was lately confirmed in
the Court of Queen's Bench, when it was ruled that
if one count was good and others defective, that might
be taken to lessen the punishment, but it could not
arrest the judgment. In criminal cases the jury
have no other question but whether the accused be
guilty of the charge in the indictment, and they have
nothing to do whatever with awarding a personal
punishment or assessing a fine, which was the pro-
vince of the Judges only, whether the punishment was
fixed by statute or discretionary. Thus uncertainty
and confusion arose in civil suits because no
assessments of damages could occur in criminal cases
in which there was only one offence of which the
accused could be found guilty, and in which punish-
ment could be awarded, whether it was fixed or at
the discretion of the Judge. Therefore, in the nature
of the thing itself, he saw no reason or principle for which
the judgement in criminal cases should be reversed
by a writ of error, in consequence of some imperfection
in some counts. The practice of framing an indictment
on several counts was not known to the ancient law in
criminal cases, but it was well known that the intro-
duction of several counts was not for the purpose of
charging several crimes, but for the purpose of pro-
viding for the complexion which the case might as-
sume in evidence, and to prevent the escape of the
criminal on account of a misdescription. In the
case of a prosecution for cutting and maiming there
were now usually introduced two counts, the second
charging the accused with the less aggravated offence,
but the corpus delicti was the same. But if upon one
good count the defendant was found guilty and sen-
tenced to imprisonment with twelvemonths hard la-
bour, which was a discretionary sentence, that
judgment would not be reversed, and the of-
fender he discharged from all punishment be-
cause one of the counts was irregular. In
that case the prosecutor was not allowed to have
his election, as in a case of felony, but the trial might
proceed, and evidence might be opposed for the•
several offences distinct from each other. But the

con eequences, as far as they related to the present
subject of inquiry, appeared to be the same both zs
to the charge of felony and the charge of misdemea-
flour. The amount cf discretionary punishment as
pronounced by the Judge, whether it were for a single
offence, described differently in various counts of the
indictments, or divers and distinct misdemeanours
charged in different counts—the discretionary punish-
ment, as awarded by the Judge, stood in the place Of
the fixed punishment in the case of felony. A Court
of Error had no more right to presume that any part
of the discretionary punishment in cases of misde-
meanour was awarded, in respect of evi•
dence contained in cases of felony, than they
had to presume that the fixed punishment given on a
defective count was supported by a valid count. It
had been argued at their Lordships' bar, that all in-
stances which hail been brought forward in support
of the proposition that one good count would sup-
port a general judgment on an indictment,
were cases in which a motion for arrest
of judgment had been made, and not cases in
which a writ of error had been brought. This
might be true, for as far as had been ascertained there
was no single instance in which a writ of error had
ever been brought to reverse a judgment on an in-
dictment on this ground of objection. But it was s
fair circumstance for refusal by the Court to arrest
the judgment where such arrest was brought on the
ground of some defective counts appearing on the
record, and assigning by the Court as a reason for
such refusal that one good count on which the judg-
ment had been entered up afforded the strongest
argument that they thought the judgment which had
been entered up was irreversable on a writ of error,
for such answer would not otherwise have been
given. It would have had no other effect than
to mislead the prosecutor if the Court had been
sensible at the time the judgment was entered
up that it would afterwards be reversed on
a writ of error. This opinion was supported in refer-
ence to the case, King v. Fuller Ist Bosanquet
and Fuller. It had been objected, however, on the
part of the plaintiffs in error, that if the judgment
were allowed to stand whilst there remained defective
counts on the face of the record, it would expose the
defendants to some hardships and inconvenience :
first, preventing them from availing themselves of the
judgment in the present indictment as a bar to a se-
cond prosecution for the same offence; and secondly,
the possible difficulty of availing themselves of a par-
don granted for an offence contained in one count of
the indictment. If he thought that those consee
quences would follow from holding the present judg-
ment irreversable, he would pause long before he
adopted the conclusion to which he had at present ar-
rived. He could not, upon the best consideration which
he had been able to give to the subject, discover thsl
any such difficulty really existed. As to the pies.
autrefois convict, whatever form of judgment was
entered upon the first indictment, whether general on
all the counts of the indictment or special on the good • j
counts only, it was not a question which would in any •
way affect the defendants security. The question 00L,
the plea autrefois convict would turn on the form et
the indictment in the two cases. It would be a ques-
tion of evidence only, whether the corpus dilicti vsas
the same in both cases, for undoubtedly the former
conviction would be a valid conviction until reversed
by a writ of error. As to the objection of a difficult,
being thrown on the defendants with respect to evy'
dente contained in those counts which were con-
fessedly valid and not extending to evidence on the
other counts, it might be answered that no instance
could be found of a perdon being granted after judge
ment, which did not recite the indictment and convic"
tion. Indeed, in cases of felony the pardon would be -
void without such recital, and if it was possible to sup'
pose a case to happen after such recital, that the Crown
should pardon not the whole of an offence contained •
in an indictment, but the offence contained in a valid
count only, there could be no doubt whatever that the
Court before whom such parties were brought to take
the benefit of the pardon would discharge them alto.
gether when nothing appeared excepting from the
pardon the officers described in counts which were
not sustainable in law. He did not therefore see sill
objection to the judgment in the present case bele;
supported on the good counts in the indictment, and
on the good counts only. Certainly there was n°
authority against that position, and the inference to
be drawn from the case of "Young and others V.
King," 2 Term Reports, was strong in support a
that doctrine, and if the judgment proceeded on the
good counts only, the whole difficulty was ended
for
On the third question, it was not necessarr
him to trouble their Lordships at any engtb;
The effect of a bad finding on a g°°°
count was in reality no finding at all. If the finding
were not such as might be sufficient to connect tne
defendants with the offence charged in any particular
count, the effect as to them would be the same The
such count did not appear in the indictment. T"
bad finding on the good count and the good finding
on the bad count appeared to him to stand on the saw
footing with respect to the validity of the judg_merA
as they did with respect to the whole record. Theo:
was no legal presumption that the judgment colll'
be arrested on one or the other, and for this reason he
ti
offered it as his humble opinion, in answer to the Oil'
question, . that there was no sufficient ground for re
;
vershag the judgment by reason of any defect in t°
indictment or finding. The fourth elliestif
proposed by their Lordships was, " Is there any su
cient grounds to reverse the judgment tn
by reason of
the matters stated in the pleas in abatement, or anyren
them, or in the judgment upon such pleas?" '
answer to this question he had been requested by
his brethren to say that they all agreed that the PTO
ment ought not to be reversed for t
reasons stated in the plea of abatemeja
In answer to that question it iv ou a
be unnecesaary to say more than that the law requo-,
that a plea of abatement should lee pleaded with ter"
tainty. This was laid down in " Coke upon Little;
ton." As this was the rule in civil actions, at leas
the same degree of precision and strict exactness w,
necessary in a plea of abatement in any proceedif;e:ci
of the Crown. In the present case the plea fano°
in many particulars. The names of the unsiod
witnesses, on which the plea was founder:
were not given in the plea. In the evens.
meat of that plea he did not find
evidence of other witnesses who were sworn best"
those alleged to have been examined without be,_
sworn, and there was nothing to show that t°°,
witnesses were not allowed by law to give their ev,;is,
deuce or affirmation instead of an oat The con4o
quences, therefore, appeared to him to be bad. .-1-0
fifth question proposed by their Lordships was d,.,
there any sufficient ground for reversing tbe J the
ment on account of the continuing the trial in 1,,
vacation, or of the order of the Court for that Pal"
pose ?" The facts upon which this question atc:th
were these, that the venire was returnable on the Just
of January to be continued from day to day, %so
being in Hilary Term. Before the arrival of .t to
day, however, the Court made an order that the l'srt,
joined should be tried at the bar of the Co!,ia
and it was understood that the trial 811°::Ah
take place on the 15th of January, the day for evtfi
the jury were summoned. On the 13th of Ja°1171;10
an order was made by the Court, which was sn ie
following terms :—" That in case the trial, w'lll Ate
fixed for the 15th of January, should not ternlo,4os
on or before the 31st of January, that being the llt
day of Hilary Term, then it shall be continued.t,rhuhe
the Ist of February and so on, day by day, unto she
15th of April, or as many days thereafter as may en
necessary for that purpose." The objection tstPror
was, that this order was conditional only, and notrol.
an appointment, but for the continuation of the be
The order, however, appeared to the Judges t°A es,
clearly within the scope and meaning of the :700
arid the power which was exercised by the Court
well exercised. The statute warranted the C(411,
appointing such day or days as they should thiecon.
The trial, therefore, had been very properlY t for
tinued in the vacation. The order was sufficiVudges
that purpose, and by all her Majesty's :Deice.
this question was answered in the 11,,e4etbet
The question, sixthly, put to the Judges was, " " the
there was any sufficient ground for reversilonet
judgment on account of the judgment of the areeit
overruling and disallowing the challenge to tbe tea 10
or any or either of them ; or of the matters sto,_
such challenge ?" The answer to this questl°u.'.owed
pended upon the principle on which the law e. the
the challenge to the array. The principle ws:cnee
indifferency of the Sheriff. Now, in the prosegh'eriff
there was no indifferency on the part of the 'ee not
alleged, but it was said that the jury-book vga"_o lees
made up according to the statute, and that
than 79 names were omitted in the list. It wag said
the list was illegally and fraudulently made °°4ltoele
the challenge of Mr. Steele asserted that it wesst the
to his prejudice, but no fault was alleged agar
of the
Sheriff. Then it was said that the materials.Z.t was
jury-book were improperly composed, but defl.
no ground for the challenge of the array. It Lnetter of
ciency in the jury-book was allowed to be hO
Intild
challenge, the business of every assize w°
stopped. was no
whole, all the Judges wer,e so
reed
that there was no ground for the objections taae::: the
their answer, therefore, to the question was i"
negative. etas,
The next question, the 7th, put to the Judges2;:the
" `Whether there was sufficient grounds to reverso,
~one
judgment by reason of any defect in the entry_
tinuances from the said trial to the 15th es ;Jen•
regard being also had to the appearances of 13
with re.
dents on the said last-named day ?" Nowa trial
spect to this question, what was the case. Why
sn
had taken place in vacation that bad comas anted
not
term, and it was said that that
vv
iadl ped roceeding.. or cteheed icnogn.thNu
aonwe thee of facta ttrial
awl 'east,
tinue-
awn, con •
ceased. The statute, by its own oper
present case it never could be said the cause A
there was, in
the cause over to the following bthare7staantudtienpbtroaha;
the Judges concurred in opinion, that fact, a Parliamentary continuancete romf
tthneo
cdisatt:oentillii;ll-1

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