The Sun. — 1861-03-19 (London, England)

PRICE 4D. STAMPED, SD.  was then asked—Did you receive any money from Mr. J. B. Charlesworth in April, 1859 ? but declined to answer the question. His Lordship said that he should consult his brother Keating on the point whether the witness was bound to answer, and left the court for that purpose. After an absence of a few minutes his lordship returned, and then, addressing the witness, said he was bound to tell him that he and Mr. Justice Keating had carefully considered the question, and they had come 'to the conclusion that he (witness) would not be exposed to any peril by answering the question put to him. He was clearly free from any penal consequence, forfeiture, punishment, disabilities, incapacities, or any criminal prosecutions whatever by reason of the certificate granted to him. It was therefore his duty to answer the question. The witness still persisting in his refusal, The learned Judge then pressed the question, and said if he declined to answer it he had no other course left than that of committing him for contempt of court for an offence of no ordinary character, his evidence being material for the prosecution then before the court, he well knowing that the effect of refusing to give his testimony would defeat the ends of justice. His lordship was of opinion that the witness was firmly persuaded in his own mind that he would be in no peril whatever if he answered the question. What his motive was might be easily imagined—to defeat the proper administration of justice. He must therefore be sentenced to six months imprisonment. unless sooner released by some competent atitli.rity and pay a fine of £5OO. • The sentence was received with applause in court which was speedily suppressed. Mr. Fernandez was given in charge of the Governor of York Castle, and his lordship directed that he should be detained in custody as a firstclass misdemeanant. The Solicitor-General applied that the certificate of the witness might not be returned to him. The Judge acceded to the application. The Solicitor-General then intimated that it was quite impossible for him to move a step further in the case, seeing that Mr Fernandez had declined to give his testimony. He therefore asked his lordship to discharge the jury. The Judge—What authority have I to do that? The Solicitor-General then quoted the case of " Newton" (13 Queen's Bench Reports, page 716), to show that the judge had the power to discharge the jury in a criminal prosecution. In this case the prisoner was committed by the justices for murder. On his trial he pleaded not guilty, and the jury retired, and remained in deliberation all night. Being unable to agree, the learned judge discharged the jury, and the prisoner was detained in custody. The Judge' said that this ought not to be done except in cases of extreme necessity. In the case referred to the judge had to go to another assize town, the business being concluded, and as there was no chance of the jury agreeing, they were discharged. The Solicitor-General having quoted some other cases in support of his argument, Sir Fitzroy Kelly contended that none of the cases referred to resembled that which was unhappily before the court. Without at all wishing to enter into the question whether his lordship had power to discharge the jury, the effect would be that if that course were adopted, the defendant would be put upon his trial twice for the same offence and it might be to subject him and to visit him with very great hardships arising from a circumstance over which he had no control. This was the second time that the defendant had appeared in court in reference to these proceedings; he had been:put to very great ' expense, and, in addition to that, he had experienced all that anxiety of mind which must inseparably be associated with a man when a case of that character was brought against him. Mr. Mellish followed on the same side. Mr. Justice Hill, having consulted with Mr. Justice Keating, discharged the jury.