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

Sovereign Lady the Queen of two thousand pounds
of lawful money of Great • Britain and IrelaTul,
and be imprisoned in the prison of our said Lady
the Queen in - and for the county of the city of
Dublin, called the Richmond General Penitentiary, on
the South Circular-road, for the term of twelve calendar
months now next ensuing, and that the said Daniel
O'Connell do before some one of the Justices of the
Court of. our said Lady the Queen, here enter into a re-
cognizance, to be acknowledged by him and two suffi-
cient sureties to our said Lady the Queen. himself the
said Daniel O'Connell in the sum of five thousand
pounds, and each surety in the sum of two thousand
five hundred pounds, conditioned to keep the peace and
be of good behaviour towards our said Lady the Queen
and all her liege people for the space of seven
years next ensuing the acknowledgment thereof.
And it is ordered that the said sheriff do deliver the said
Daniel O'Connell,' John O'Connell, John Gray, Richard
Barrett, Thomas Steele, Thomas Mathew Ray, and
Charles Gavan Duffy, into the Custody of the keeper of
the prison called the Richmond General Penitentiary, to
be severally kept in safe custody in the said prison in exe-
cution of this judgment, and until they shall have paid
their said fines respectively, and have severally entered
into such recognizsnces and with such sureties as afore-
said to keep the peace and to be of good behaviour in
manner and form aforesaid, and for the term. aforesaid."
He would now consider if there was one bad count in the
indictment, and the jury found the party guilty upon the
K hole, and judgment was given on the whole, how far
that judgment would stand if one count was bad. He
submitted that it would not. There was a distinction
taken in the text book between criminal and civil cases.
The question was lo what extent that distinction applied
hether it was applicable only in cases of arrest of
judgment, or whether it was applicable after judgment
had been given, and the case came before the 'court
of error. There- was nothing in the judgment
of Lord Mansfield in the case of " the King and Ben-
field," 2 Burrows, 9SI, to show that in a case in which
one count was good, and another was bad, a court of
error would not reverse that judgment, for if the court
of error saw that the court below had given judgment
on both counts, they must assume that that judgment
had been given in respect of each count, and had not
bsen lessened on- account of the deficiency in one of the
counts. (The Learned Gentleman then quoted the case
of " the King and Fuller," which had been alluded to
yesterday by Sir T. Wilde, in support of his argument.)
The Learned CouriSel then referred to a dictum of Lord
Mansfield, in Cooper's Reports, and also to a dictum in
Douglas's Reports. Now he would ask his Learned
Friend the Attorney-General, upon what principle he
would contend if there were two bad counts in the in-
dictment, and it appeared `from the record sent to a
court of error that the judges-had given judgment on those
counts, that the civilcourts had no jurisdiction ? Was it to be
said that the judgment was warranted by law, and, there-
fore, that a court of' error eould not take it into considera-
tion ? Was it to be said, if there was a single good
count in an indictment, that that was sufficient, and that
the party was bound to submit to the judgment
pronounced against him, as there was no appeal ?
It would take away the power of appeal in every case.
Suppose a jury were to find a party guilty, in a case of
felony, of the murder of A and the murder of B, the
court could not pass sentence of death on both those
counts, because that would not be a judgment warranted
by law. Directly a man had sentence of death passed
upon him he was attainted, and the court could never af-
terwards pass sentence upon him for another offence,
If the court did so, it would be a ground for reversing
the judgment. If two sentences were passed it would
be a good ground of reversal. A man could not be tried
for one murder whilst he was under attainder for another
murder. The plea of "autrefois atteinte" would be an
effectual plea, ascording to Hawkins' Pleas of the
Crown. It was impossible in the case of felony that
sentence coulil be passed for two distinct offences. If
a man were sentenced to transportation for life twice,
and then. pardoned for one of the offences, what would
be done with the remaining sentence? He contended
that it would be void for ambiguity. It was a general
rule of law that a party could . not be tried
twice for the same offence ; and if a party
received sentence on a bad count, it would
be a sufficient reason for setting asicle a good
one. In the case of appeals in 4th Cook's Reports, it
was laid down by Lord de Grey that the reason why
autrefois acquit was a maxim of English law, was that
the life of a man should not twice. be put in jeopardy
for one and the same offence. Suppose Mr. O'Connell
should be charged to-morrow- with the same offences,
and the counts should be better drawn, would he be able
to plead his fernier conviction even though he was suf-
fering imprisonment on the judgment ? He contended
that the only conclusion to which their Lordships could
come Was, to reverse the judgment.
Their Lordships then retired for refreshment, and
the proceedings were suspended. On the return of their
Lordships,
Mr. PEACOCK resumed. He would cite the case of
the King v. Holland, sth Term Reports, page 607, where
an information was filed by the Attorney-General
against the defendant, for malversation in an office.
He submitted that the dicta to be found in the text
books; amounted merely to this, that where there were
several counts, and the jury found entire damages, and the
court were _not able to distinguish how the jury
assessed the damages, they must recite it in the judg-
ment, but in a criminal case, where there was no embar-
rassment about the finding of the jury, for the Court
themselves assessed the amount of punishment, and
where judgment was given against the defendants upon
an indictment of which some of the counts were good,
and others bad, how could this House, upon the case
being removed by writ of error, distinguish between
that portion of the judgment which was givers upon the
good counts, and that portion which was given on the
bad counts ? When the court passed sentence where
some counts, wore good and _ some bad, and
the judgment was discretionary, the judgment
shonld be reversed altogether. He believed' his
Learned Friends could produce no case where this point
was distinctly decided, and he trusted their Lordships
would maturely, weigh it. The next point was with re •
gard to the suggestion as to whether that House could
amend the judgment of the court below, as he contended
the judgment of. the Court below was defective, as
judgment was not given upon those points where the
defendants were acquitted, and he apprehended their
Lordships could not amend that judgment. The case of
the King v. Nalcot, in 4th voltime Modern Reports,
p. 395, was a strong authority on that point. That was
a writ of error to reverse one attainder for treason
committed by the father of the defendant. Certain
formal words were left out of the jUdgment of the Court
below, and the question was whether those words could'
be added to the judgment of the Court below.
That case showed that the omission of words was the
ground of the reversal of the attainder, and that
thohfeim,r,e, cord, and add
" Showers," the
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words. Court
dc o
bu le dlbnunrontiehde amendbeeaf
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were omitted,
and the House of Lords reversed the attainder
on that account. That was a proof that the House could
not amend the record by the insertion of words. The
judgment' of every court of error, must be either an
affirmation or a reversal of the judgment of the court
below.. If it were a reversal, some questions might
arise as to what that judgment ought to be. In
Bacon's abridgement to the Error Letter, it was
said that " Judgment is an entire thing, and
cannot regularly be reversed part, and affirmed
part." If judgment were 'passed upon various
parties, and it was erroneous against one, it was
reversed against all. In the case of the King
and Kenworthy, 7 Barnew all and Cresswell, page 707,
a party had been tried and convicted at Chester,
for perjury, and irwas entered on the record that he had
been ordered to be transported for seven years. In that
case it was held that the entry was merely wrong, and a
procedendo was ordered to issue to the Court below, order-
ing them to proceed to judgment, and Lord Chief Justice
Abbot, in giving judgment, said, "It appeared from
the record that an order had been made, but not fol-
lowed up by judgment." In the case of " The King v.
Ellis," 5 Barnewall. and Cressvvell, 395, in which the
cause of Kenworthy was quoted, judgment had been
given in the court below, the court reversed the judg-
ment, and held that they could not send it to the court
below, in consequence of that reversal. The prisoner
had been sentenced to fourteen years' transportation for
petty larceny, an offence punishable by law with only
seven years' transportation. The distinction between these
two cases was material. In the first no judgment
had been passed ; in the second the one which had been
passed was erroneous, and the prisoner was discharged.
In the cases of the King against Board and others, 7
Adolphus and Ellis, page 58, prisoners had been sen-
tenced to transportation for an offence, the le-
gal punishment of which was death. In that
case Lord Denman, giving judgment, said that,
as an erroneous judgment had been passed by the
inferior court, that court sitting in error had neither
the power to pass the proper sentence nor to
send back the case to the court below. The
judgment, therefore, must be reversed, and the
prisoners discharged. Their Lordships had no
power, except to reverse or affirm the judgment, because
if they were to amend it there would be two judgments
on the record—an original judgment of the Court of
Queen's Bench of conviction, and an original judgment of
the Court of Error of acquittal. Now this was one of the
objections in the King v. Walker, that there would be
two judgments on the record, for if the court of error added
to the judgment of the court below, that would make it a
new judgment.
The LORD CHANCELLOR said that the court below could
cure the defect in the same term.
Mr. PEAcocK—They could do so if it were a mere mis-
prision of the clerk.
The Lone CHANCELLOR—I take it that this was a mis-
prision.
Mr. PEACOCK submitted that it was an erroneous
Itudg-
ment of the court, and,not a misprision of the clerk. was
laid down in several authorities, amongst others, Bacon's
,Av
rbir:dogf
the Court cannot amend, but must reverse the judgment.
t
When the
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plaintiff brought a writ of error, he applied for that
judgment from the Court above, which the Court below
should have given. In this case, therefore, he submitted that
the judgment of their Lordship's must be to reverse that of
the Court below. He apologised f'or occupying their Lord-
ships so long, and thanked them for their indulgence.
said' that in the division of the labour made amongst
i them-
selves of the plaintiffsn this
Mr. Mu, who appeared for Messrs. Steele and Barrett,
by the counsel on the part
writ of error, it had been assigned as his portion to address
their Lordships on the objection to the iritnesses being sworn
before the grand jury and not in open Cocurt.,. and, secondly, on
the objections to the arraigns, it was ma'cie imperative by the
Act of Parliament, that after the witnesses had been sworn
and their names placed on the back of the indictment, the
swearing should be certified by the initials of the foreman
placed opposite each name. Before the year 1816 a practice
prevailed with some grand juries in Ireland to find bills with-
out examining witnesses, but on written statements. The
Act 56th George 111., was passed to correct this practice, and
enacted that no bill of indictment should be returned
as found unless the witnesses were sworn in open
Court ; so that their Lordships would see that if there
had been any doubt at common law, it ras put an