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

' The LORD CHANCELLOR—Then now enunciate your
second.
Mr. PEACOCK proposed on this point to show that the
verdict on this count found Mr. O'Connell, Mr. Barrett,
and Mr. Duffy, guilty of the premises, and found the
other five defendants not guilty.of conspiring with the
former three. The verdict in that respect, therefore,
was repugnant. The verdict was bad on account of its
ambiguity, and as being argumentative, finding three
persons guilty of conspiring with six others, when four
of these others were found not guilty of conspiring at
all. The rule of law was this, that if a party is once put
on his trial for an offence, the verdict must be such a ono
as to prevent that person from being put on his trial
again for that same offence. The verdict must be such
an answer on the judgment, that on a second trial the
prisoner shall be able to plead either previously convict
or previously acquit. He cited thz case of " Hunger -
ford in 2d East, 518," in which the prisoner was indicted
for burglariously entering a house, and stealing to the
value of 6/. The verdict found him not guilty of the
burglary, but guilty of the stealing, and sentence of
death was passed. The case was reserved fur the con-
sideration of the judges, who held that the finding was
sufficient to warrant the judgment, but said the entry
should have been "not guilty of breaking open by
night," as that would have been more dis-
tinct. It appeared to be the constant course
in indictments for murder, in which there was a verdict
of guilty of manslaughter, to enter the finding as not
guilty of the murder and guilty of the manslaughter, or
of killing and slaying, although the charge of murder in-
cluded the killing and slaying ; therefore, though the
finding of the jury might warrant the officer in entering
judgment, still lie did not enter up the judgment so as
to appear distinct. Now the question was, what was the
meaning of the words—‘. Guilty of the premises ?"
Daniel O'Connell, Duffy, and Barrett were found guilty,
with other persons, to do several things. They were
found guilty of the premises—that was, guilty of con-
spiring with each other. If one person was indicted for
conspiring with another, and divers other persons un-
known : say that A and B were indicted for conspiring
with each other, and divers others unknown, and that B
Has acquitted ; A might be found guilty, but the entry
of that verdict would be, that A was guilty of conspiring
with persons unknown, not that he was guilty of con-
spiring with B and persons unknown, and therefore the
entry of the verdict would be, that A was guilty
of conspiring with persons unknown, B not
guilty. But the verdict here was " guilty of
the premises," that was to say, guilty of
conspiring the other way. Whether it was that the
jury found the eight guilty of conspiring together,
though they found four not guilty, or whether they
meant to find the whole eight guilty, he did not know.
The LORD CHANCELLOR--IS it an objection to the
finding that it is argumentative of the inference from
the argument being clear ?
Mr. PEACOCK said it was not clear what the jury
meant here.

The LORD CHANCELLOR said this branched itself into
two points—one was, whether it was an objection to the
finding that it was argumentative if the inference was
clear ; the next was, whether it was clear.
Mr. PEACOCK said that if it was certain what the jury
meant, he did not-apprehend that it would be an objec-
tion ; but where it was not certain, the finding was bad.
Lord CAMPBELL—There is another way in which
this may be viewed. The jury are to find a true verdict,
according to the evidence. This might be to show
that A, B, and C, conspired with D upon their own
acknowledgment, so that there would be no evidence
against D, and D would be acquitted of the conspiracy
with A, B, and C.
Mr.-PEACOCK—That was what he wanted to show
their Lordships. Supposing that A and B were in-
dicted for conspiracy together, leaving out the usual
words, " with others unknown." Suppose that A con-
fessed that he was guilty of conspiracy with 13, that
would be no evidence upon which to convict B, but it
would be evidence to convict A. But if there was a
failure of the evidence against B in point of law, A could
not be convicted, because it was a contradictory finding
in the record. If A, B, and C, were charged with a
joint conspiracy, A and B could not be found guilty
of conspiring with C in, the same verdict in which C is
found not guilty of conspiring with them.
The LORD CHANCELLOR—Supposing that A is in-
dicted for conspira 7 with B and C, and that he con-
fessed he conspired with B and C, and that the jury
upon the trial find that C is not guilty, because there is
no evidence against him ; and then, supposing that A
and B are guilty of the premises, and in the same find-
ing it is found that C is not guilty, would not that do?
Mr. PEACOCK submitted it would not.

The LORD CHANCELLOR—The meaning of " Not
Guilty" in that case must be, that there was no evidence
• to find them guilty.
Mr. PEACOCK submitted it would not be sufficient.
The verdict, if it was one, and on ono record, must be
consistent. The jury could not, upon the confession of
Daniel O'Connell, Barrett, and Duffy, find them guilty
of conspiring with others. What they should find was,
that they were not guilty of conspiring with each
other. They were to look to the finding of the jury, and
they must presume that the jury meant what they
found, for, if there was a difference, the record
would be entered up accordingly, and therefore it could
only be on the confession of the three that they could
be found guilty of conspiring with others, when the
others were not found guilty of conspiring with them.
(The Learned Gentleman then quoted " Comyn's
Digest," title Pleader, s. p. 23, to show that a verdict
which was repugnant was void ; and also 2d Hawkins,
Pleas of the Crown, b. 2, p. 47, s. 8.) He would sub-
mit that if a person confessed to conspiracy with another,
but if the jury for want of evidence found that person
not guilty, that the confession of the other would be
void, because the record would be repugnant ; for if A
confessed to be guilty of conspiracy with B, and B was
found not guilty, A could not be found guilty of conspir-
ing with B, for there would be a repugnancy on the re-
cord. So when in an indictment A was charged as
principal, and B as accessory, if A was acquitted, B could
not be found guilty ; even if B confessed that A was the
principal, and that he had been accessory, because there
would be a repugnancy do the record if it said that B
was guilty as accessory to it, and yet that A was not
euilty as principal.
Inc LORD CHANCELLOR—The question is, how would
that be since the alteration of the law ? You have no
authority, I suppose, since the alteration of the law ?
Mr. PEACOCK apprehended that the alteration of the
law, by which accessories could be convicted without
the conviction of the principals, would not make any
difference if both parties were included in the same re-
cord. The accessory might be convicted upon a sepa-
rate record, but he could not be found guilty in the same
record which acquitted his principal, inasmuch as there
would then be a repugnancy in the record. Therefore, if
certain parties were found guilty on their own confession
of a joint conspiracy with others, and those other parties
were acquitted, the verdict against those parties on their
own confession could not stand, because there would be
a repugnancy on the record.
The LORD CHANCELLOR—Does not the principle
apply here that the Court can correct any repugnancy
if they can show clearly what the jury intended.
Mr. PEACOCK apprehended that that was an argu-
ment in his favour, because, if the repugnancy had nut
exitted in fact, the Court could not have corrected it. They
were bound to have it that the Court had entered a
verdict according to the truth and finding of the case.
The Court did not take it as a minute of the jury, but
they entered it according to the actual finding to declare
to a court of error what that real finding was.
The LORD CHANCELLOR—I believe the finding on the
record must be presumed to be the very words of the
jury.
Mr. PEACOCK had before directed their Lordships'
attention to Comyn's Digest on argumentative verdicts.
It was there stated that verdicts founded on argument
and inference are void. (The Learned Counsel here
quoted several cases from Comyn's Digest and Roll's
Abridgement, in support of his position.) In section
23d of Comyn's Digest, it was said, "So if a verdict is
repugnant, it is void." (The Learned Counsel again
quoted several cases in which Verdicts had been declared
void on the ground of repugnancy.) He submitted
that in the present case the verict was repugnant, or
else that it required argument to show that it was not
repugnant. If it was repugnant, it was void, and if it
was only not repugnant by reason of its being
argumentative, then it was void for being an
argumentative verdict.. If the verdict were taken merely
as an argument to show that these parties had been
guilty of conspiring with each other, there was no argu-
ment to show if the parties had entered into a conspiracy
with each other, or with Mr. Tyrrell, who was dead.
Were they guilty or not guilty of conspiring with Mr.
Tyrrell ? The verdict was uncertain, ambiguous, and
unargumentative ; and if it was not intended to say whe-
ther they were guilty or not guilty of conspiring with
Mr. Tyrrell, then it was bad, because it did not find the
whole matter at issue. In Comyn's Digest, title
" Pleader," it was laid down that a verdict was void as
to the whole, if it found only part of the issue and said
nothing as to the remainder, and the authority stated for
that was " Coke upon Littleton," 227 A, in which it was
laid down that a verdict finding matter uncertainly or
ambiguously was insufficient, lno judgment could be
given thereon. For these reasons he (Mr. Peacock)
submitted that the verdict upon the third count was
void, either for repugnance, or ambiguity, or not find-
ing upon the whole matter charged, and if the verdict
was void on that count, then he submitted that the judg-
ment was also void, because some portion of the punish-
ment must have been given in consequence of the finding
the party guilty on that count, and the judgment being
void as to that count, was void altogether, but their
Lordships could not say how much of the punishment
had been given in consequence of the finding the parties
guilty on that count. This objection applied equally to
the sixth and all subsequent counts. The next point
to which he would call the attention of their Lordships
was, that upon the reccrd there was a discontinuance
between the finding of the verdict and the sentence. The
venire was returnable on the 15th January, and upon that
day " the said jurors of the said jury so empannelled as
aforesaid, being duly elected, tried, and sworn to speak
the truth of the several matters in the indictment afore-
said specified and charged against the said Daniel
O'Connell, John O'Connell, Thomas Steele, Thomas
Mathew Ray, Charles Gavan Duffy, the Rev. Thomas
Tierney, John Gray, and Richard Barrett, the trial of
the issues as aforesaid by the jurors aforesaid, in the
said court here before the Queen herself, is duly con-
tinued until and upon Wednesday the thirty-first day of
January, in the year of our Lord one thousand eight
hundred and forty-four ; and now at this day, that is to
say, on the said thirty-first day of January, for as
much as it appears to the Court here that the trial
of the said issues so joined as aforesaid is
not, nor can the said trial thereof be con-
cluded on this same day it is ordered by the
said court here, that the said jurors so empanelled and
sworn to try the said issues shall have leave to withdraw
this same day from the bar of this court here, and that
the said jurors shall again come to the bar of this same
court here on the morrow, that is to say, on the first day