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

con sequences, as far as they related to the present
subject of inquiry, appeared to be the same both as
to the charge of felony and the charge of misdemea-
nour. 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 $
defective count was supported by a valid count. II
had been s:egued at their Lordships' bar, that all in-
stances which hail been brought forward in support
of the propositioo 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 becn brought to reverse a judgment on an in-
&eta-lent on this ground of objection. But it was $
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 fof
such refusal that one good count on which the judg-
ment had teen entered up afforded the strong( st,
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 aftex wards be reversed 011
a writ of error. This opinion has supported in refer•
site to the case, King v. Fullei 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 seene hardships and inconvenience
first, preventing them from availing themselves of the
judgment in the present inslictment 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 is, one count of
the indictment. If he thought that those conse-
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 rel:e
rived. He could not, upon the best consideration whicu
he had been able to give to the subject, discover that
any such difficulty really existed. As to the plo
autrefhis convict, whatever form of judgment eves
entered upon the first indictment, whether general on
all the counts of the indictment or special on the goca
counts only, it was not a question which would in any
way affect the defendants security. The question el,
the plea autrefois convict would turn on the form 'I
the indictment in the two cases. It would be a clues'
tion of evidence only, whether the corpus dilicti Was
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 difficulty
being thrown on the defendants with respect to evi-
dence 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 pardon being granted after jag'
ment, which did not recite the indictment and cowrie'
tion. Indeed, in cases of felony the pardon would be
void without such recital, and if it was possible to stir
pose a case to happen after such recital, that the Crovil
should pardon not the whole of an offence containe.l
in an indictment, but the offence contained in a it
count only, there could be no doubt whatever that t,".
Court before whom such parties were brought to tatty
the benefit of the pardon would discharge them altie;
gether when nothing appeared excepting from
pardon the officers described in counts which we':
not sustainable in Jaw. He did not therefore see a-7„
objection to the judgment in the present case help
suAted on the good counts in the indictment,
on the good counts only. Certainly there was Po
authority against that position, And the inference e.
be drawn from the case of "I eeng and others
King," 2 Term Reports, was strong in support he
the
that doctrine, and if the judgment proceeded on
ieci.
good counts only, the whole difficulty was en°i-oe
On the third question, it was not necessary
him to trouble their Lordships at any leetaj
The effect of a bad finding on a gxng
count was in reality no finding at all. If the finui,be
were not such as might be sufficient to connect list
defendants with the offence charged in any partieus if
count, the effect as to them would be the same °
aPup
such count did not appear in the indictment. l,'
had finding on the good count and the good findlega
on the bad count appeared to him to stand on the saint
footing with respect to the validity of the judgntee
as they did with respect to the whole record. The.e
could
was no legal presumption that the judgment con,.
he arrested on one or the other, and for this reason uve
offered it as his humble opinion, in answer to the third
question, that there was no sufficient ground for
versing'the judgment by reason of any defect iniloa
indictment or finding. The fourth 'restos
proposed by their Lordships was, " Is there any sic of
cient grounds to reverse the judgment by reason of
the matters stated in the pleas in abatement, or silo
them, or in the judgment upon such pleas?'
d by
answer to this question he had been requestrags
his brethren to say that they all agreed that theyll the
ment ought not to be reversed for „t,
reasons stated in the plea of abatelneule
In answer to that question it Ired
be unnecesaary to say more than that the law rectic'ee-
that a plea of abatement should be pleaded wi,tittie-
tainty. This was laid down in " Coke upon Pilot
ton." As this was the rule in civil actions, at Ives
the same degree of precision and strict exactnessaiage
necessary in a plea of abatement in any prneceedecf
of the Crown. In the present case the plea railed
in many particulars. The names of the ur'sedsde
witnesses, on which the plea was ibu",ier-
were not given in the plea. In the %or.
meat of that plea he did not find ides
evidence of other witnesses who were sworn be,,seing
those alleged to have been examined without Ponse
sworn, and there was nothing to show thait evi'
witnesses were not allowed by law to give tnel'anses
deuce or affirmation instead of an coati. The c The
quences, therefore, appeared to him to be bad- 0
js
fifth question proposed by their Lordships evasraer
there any sufficient ground for reversing the the
ment on account of the continuing the trial 10,,,,aes
vacation, or of the order of the Court for that
pose ?" The facts upon which this question 4 sth
were these, that the venire was returnable on tn that
of January to be continued from day to daS) that
being in Hilary Term. Before the arrival 0' oses
day, however, the Court made an order that thessortf
joined should be tried at the bar of the ',old
and it was understood that the trial swybielt
take place on the 15th of January, the day for 0001
the jury were summoned. On the 13th of tba
an order was made by the Court, which Waseiieh
is
following terms :—" That in case the trial, v"Linete
fixed for the 15th of January, should not ter,„'e Jost
on or before the 31st of January, that being tlie from
day of Hilary Term, then it shall be continne"to tee
the Ist of February and so on, day by clan 'Toy be
15th of April, or as many days thereafter as tskee
necessary for that purpose." The objectionnot for
was, that this order was conditional only, and" trisi'
an appointment, hut foX the continuation of e be
The order, however, appeared to the Judges
clearly within the scope and meaning of set net 11!35
and the power which was exercised by the Li %art ibe
well exercised. The statute warranted the ",,ine
appointing such day or days as they should think coo;
The trial, therefore, had been very prep dent
tinued in the vacation. The order was surf' Judges
that purpose, and by all her MajestYsnegative;
this question was answered in the ~whetiee
The question, sixthly, put to the Judges was, sing t'Le
there was any sufficient ground for revs the Cow;
judgment on account of the judgment the erne'
overruling and disallowing the challenge to tuh4eel
or any or either of them ; or of the matters Stroll de
such challenge ?" The answer to this etie!, agoiceee°
}Mended upon the principle on which the la"
~,,as tt've
the challenge to the array. The princiPle_sot ca,s,s
indifferency of the Sheriff. Now, in the p!'f,, shell;
there was no indifferency on the part of I,'_l`o,lo
alleged, but it was said that the eury-boo,ltt ae, lesci
mane up according to the statute, and thaw
than 79 tiames were omitted in the list. -Ite out, eeJA"
the list was illegally and fraudulently Inal, was tee:o
the challenge of Mr. Steele asserted that
ainst
th
to his prejudice, but no fault was alleged zigis of tiro
Sheriff. Then it was said that the meter, that s_2l..
jury-book were improperly composed, tel;the den.
no ground for the challenge of the array- , matter
ciency in the jury-book was allowed to nes old v`:
challenge, the business of every assize.eve ngrecq
stopped. On the whole, all the Judges wt en, at?cts
that there was no ground for the objections to': in te°
their answer, therefore, to the question was
wgyp,
negat
The next question, the 7th, put to the Judgrevers- n•
" Whetherjhere was sufficient grounds to
try cf c°*l
judgment by reeson of any defect in the r
ot. pr+
tin antes from the said trial to the 15th dq,b defc'e,
regard being also had to the appearances_ootwt
with e.
s,
slants on the said last-named day ?" see Atri!
in
spect to this question, what W 23 the caseo.mv!Pe-Ynced
had taken place in vacation that had
tc not
term, and it was said that tha
vd validec; proceeding.continuance Now the f
afatcrti
trial
east,
present case it never could be said the e
_ouftuiane.d
—there ,
the cause over to the following term
of the cau ..„
fact, a Parliamentary continuance
no diseanteee
ceased. The statute, by its own operation, u "was, tin
the Judges concurred in opinion, that bar
ha
re, statuteca:_d_„.iripbtrhaul