Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various

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СКАЧАТЬ – I should leave apportioned the sentence to the degree of criminality that was stated in all the counts which were proved in evidence." – "I see no inconvenience in compelling a judge to form an opinion on the validity of the counts, before he proceeds to pass judgment. He ought to take care that a count is good before he allows a verdict to be taken, or at least judgment to be entered upon it; and great good will arise from that practice. I am deliberately of opinion that this is a right and wholesome practice, producing no inconvenience, and affording a great security for justice. * * * In criminal cases, all difficulty may be entirely avoided by the court passing a separate judgment on each count, and saying, 'We adjudge that on this count, on which the prisoner is found guilty, he ought to suffer so much; that on the second count, having been found guilty, he ought to suffer so much; whether the count turn out to be good or not, we shall pronounce no opinion; that question would be reserved for a superior court. A court of error would then reverse the judgment only on such counts as could not be supported in law – leaving that to stand which had proceeded on valid charges." – "Where a felony was established, requiring a capital punishment, or transportation for life, the number of counts could make no difference; because the punishment pronounced on any one exhausted the whole materials of punishment, and admitted of no addition." – "The current notion, that one count alone could support any sentence applicable to the offences stated in the whole indictment, can be accounted for only by Lord Mansfield's general words, needlessly and inconsiderately uttered, hastily adopted, and applied to a stage of the proceedings in which they are not correct in law."

      Then came Lord Cottenham – a cold, clear-headed lawyer, cautious, close, and accurate in his reasonings, and very tenacious in adhering to his conclusions: possessing the advantage of several years' judicial experience – as an equity judge. Thus he addressed himself to the point of the case: —

"Is there error upon the record?"

      * * * Did not the court below pass sentence upon the offences charged in the first, second, third, fourth, sixth, and seventh counts in the indictment, as well as upon the offences charged in the other counts? The record of that court tells us that it did; and if we are to see whether there be any error on that record, and adopt the unanimous opinion of the judges, that those six counts, or the findings on them, are so bad that no judgment upon them would be good, how can we give judgment for the defendant, and thereby declare that there is no error in the record? The answer which has been given to this objection appears not only unsatisfactory, but inadmissible. It is said that we must presume that the court below gave judgment, and passed sentence, only with reference to the unobjectionable counts and findings. That would be to presume that which the record negatives. By that record the court tells us that the sentence on each defendant was 'for his offences aforesaid,' after enumerating all those charged in the indictment. Are we, after and in spite of this, to assume that this statement is false, and that the sentence was upon one-half only of the offences charged? * * * We can look to the record only for what passed in the court below; and as that tells us the sentence was passed upon all the offences of which the jury had found the defendants guilty, we cannot presume to the contrary of such a statement. It would be the presumption of a fact, the contrary of which was known to all to be the truth. The argument supposes the court below to have been right in all particulars; but the impossibility of doing so on this record was felt so strongly, that another argument was resorted to, (not very consistently with the judgment, for it assumes that the jury may have been wrong upon every count but one,) namely, that a court of error has to see only that there is some one offence properly charged, or a punishment applicable to it inflicted; and then, that being so, that as to all the other counts the court below was wrong – all such other counts or findings being bad.

      "Consider what is the proposition contended for. Every count in an indictment for misdemeanour is supposed to apply to a different offence: they often do so, and always may; a prosecutor having the option of preparing a separate indictment for each, or of joining all as one. If he adopt the former course, he must, to support the sentence, show each indictment to be right. If he adopt the latter course – viz. going upon one indictment containing several counts, and one sentence is pronounced upon all the counts, according to the proposition now contended for; suppose the sentences to be bad on all the counts but one, that one applying to the most insignificant offence of the whole; a court of error, it is said, has no right to interfere! That is to say, it cannot correct error except such error be universal; – no matter how important that error, no matter how insignificant the portion which is right, nor what may have been the effect of such error! The proposition will no longer be 'in nullo est erratum,' but that the error is not —universal. If neither of these arguments prove that there is manifest error upon the record, and it is not for a court of error to enter into any consideration of the effect which such error may have produced, it has no power to alter the verdict, and can form no opinion of its propriety and justice from mere inspection of the record, which is all the judicial knowledge a court of error has of the case. Upon what ground is it to be assumed, in any case, that the court below, if aware of the legal insufficiency of any of the counts, or of the findings upon them, would have awarded the same punishment? It could, probably, do so in many cases – but in many it as certainly would not. If the several counts were only different modes of stating the same offence, the insufficiency of some of those counts could not affect the sentence; but if the different counts stated – as they well might – actually different misdemeanours, and, after a verdict of guilty upon all, it were found that some of such counts – that is, that some of the misdemeanours – charged, must be withdrawn from the consideration of the court, by reason of defects in either the counts themselves or the findings upon them, it cannot, in many cases, be supposed that the sentence could be the same as if the court had the duty thrown upon it of punishing all the offences charged. This may be well illustrated by supposing an indictment for two libels in different counts – the first of a slight, the other of an aggravated character – and verdict and judgment upon both; and the count charging the malignant libel, or the finding on it, held to be bad. Is the defendant to suffer the same punishment as if he had been properly found guilty of the malignant libel?" The reason why the rule in civil actions does not apply to motions in arrest of judgment in criminal cases, is plainly this: – because the court, having the sentence in its own hands, will give judgment 'on the part which is indictable' – and the failure of part of the charge will go only to lessening the punishment. These reasons, however, have plainly no application to writs of error; because a court of error cannot, of course, confine the judgment to those parts which are indictable, or lessen it, as the different charges are found to fail."

      "The only inconvenience," added his lordship, "which can arise from the rule we are laying down, will be, that the prosecutor must be careful as to the counts on which he means to rely: the evidence at the trial must afford him the means of making the selection – and the defendant has now the means of compelling him to do so."

      Such was, in substance, Lord Cottenham's judgment. He read it in his usual quiet, homely, matter-of-fact manner, as if he were not at all aware of, or cared not for, the immense importance and public interest attaching to the publication of the conclusion at which he had arrived.

      Then rose Lord Campbell. In a business-like and satisfactory manner he went briefly over all the points which had been made by the plaintiffs in error, disposing of them all in favour of the crown, (expressing, however, doubts on the subject of the challenge to the array,) till he came to the point – which he thus approached: – "I now come, however, to considerations which induce me, without hesitation, humbly to advise your lordships to reverse this judgment." He was brief but pithy in assigning his reasons.

      "According to the doctrine contended for on the part of the crown," said his lordship, adopting two cases which had been put by, we believe, Mr Peacock in his argument, "the following case may well happen. There may be an indictment containing two counts, A and B, for separate offences; A being a good count, B a bad one. The court below may think A bad and B good; and proceed to sentence the defendant to a heavy punishment merely in respect of B, which, though it may contain in reality not an offence in point of law, they may consider СКАЧАТЬ