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V.

then be three different conspiracies, having different objects in view, and requiring for their accomplishment and Others different means and different periods of time. It is THE QUEEN. plain that neither in law nor fact could the whole eight defendants, upon such an indictment, be found guilty of one conspiracy to cheat A. B. of all the three horses, nor could there be a finding that all were guilty of conspiracy to cheat A. B. of the black horse, and also a finding that H., I., and K. were guilty of conspiracy to cheat him of the grey horse: for, otherwise, there would be an indictment charging one conspiracy between eight persons, and a finding of three distinct conspiracies, only one of which was that which had been charged in the indictment. The charges here are contradictory. If A. and B. are jointly indicted for conspiracy, and B. is acquitted, A. must also be acquitted, not merely because one person cannot alone be convicted of conspiring, but because A. is on the record charged with a specific conspiracy with B., and if B. did not conspire, A. could not have conspired with him. It would be the same if there were more than two persons charged with conspiring together, and it should appear at the trial that one of the number did not conspire at all; for then the specific conspiracy charged never existed. In the case supposed, it therefore follows that on that indictment H., I., and K. ought not to be convicted of conspiring to cheat A. B. of all the three horses; for the conspiracy charged against H., I., and K. was made with them in common with five other persons, no one of whom had in fact conspired with them to cheat A. B. of more than one particular horse. If such a finding is contrary to law, a judgment on that finding must be bad, for it would be impossible to say in respect of what offence the judgment is pro

1844.

บ.

nounced: indeed, it plainly appears here to have been pronounced upon a charge of three distinct conspira- O'CONNELL cies, when the indictment charges but one. Why is and Others it that when once a conspiracy has been formed, the THE QUEENn. subsequent acts of any one conspirator become evidence against the whole? It is because these acts, though the acts of one individual, are directed to attain a common object. The moment there ceases to be a common object, that moment the acts of any one individual affect only himself. Mr. Baron Rolfe acted on this distinction, in his charge to the jury in Feargus O'Connor's Case. The distinction is most important. It may be shown by a very strong case: Suppose eight persons signed one paper, by which all the eight agreed to murder a particular person; five of the eight agreed to rob a garden, and the remaining three to stop a man on the highway. Would that one paper contain one or several agreements? Suppose such a paper, instead of containing an agreement of a highly criminal kind, amounted to a civil contract, enforceable in a Court of Law, must not the person who sought to enforce it, sue upon it in different counts as for different contracts? Trying this matter, therefore, either by the test of criminal law or of civil pleading, it is indisputably clear that the agreements would be several and distinct. There are here findings of three conspiracies, where the jurors were empowered to inquire and find as to one alone.

None of these findings can be rejected, and the record amended; for the form of judgment is general and inclusive, "for their offences aforesaid." The reason why a Court cannot in a civil case correct the finding of a jury where general damages are assessed on a declaration containing bad as well as good counts, is that the Court cannot perform the functions of a jury in assessing the damages. That reason

applies here: this House cannot perform the functions of the Court below in assessing the punishment on an indictment where some of the counts are bad, and where it is impossible for the Court of Error to know the exact amount of punishment which has been awarded in respect of those bad counts. There can be no doubt that such an objection would be good in arrest of judgment; or if there were good counts and good findings on them, the Court might not arrest the judgment, but might enter it on those good counts and good findings alone. But where that had not been done, the objection would for the very reason of the neglect to do it become the stronger ground for a writ of error; for that is the only remedy for a judgment which ought never to have been entered. The punishment is wrongfully increased. Suppose that three men, needy and hungry, should agree to go to a baker's shop, and steal a loaf: that is a conspiracy to commit a felony. But suppose the same persons to conspire at the same time to break open a house and murder its inmates, and rob the house: suppose them convicted of these offences, upon two different counts contained in the same indictment: suppose, after argument, the Court should hold both counts to be good, would it give the same and no greater punishment for the two accumulated offences than it would give if it held one of the counts to be bad, and especially if that count so deemed bad was the count charging the conspiracy to break open the house and commit the murder? But take another view of the same case: Suppose the Court below should give a general judgment, compounded, as it must be, of awards of punishment for one and the other offence; and suppose a writ of error brought the argument on the other side will be, that the Court of Error, though convinced that the count charging the conspiracy to rob and murder was bad,

must yet affirm the judgment. It is impossible to
conceive a doctrine more completely at variance with
the first principles of law and justice. But, then, it is
said that the Court of Error is bound to presume that
the judgment has been given in respect of the offences
of which the defendants have lawfully been convicted;
and that, consequently, no part of the judgment has
been given on what may be ultimately pronounced to
be bad counts in the indictment. It is contrary to all
experience to make such a presumption, and the pre-
sumption, if made, would no doubt be contrary to
the fact. It ought not, therefore, to be made; but,
assuming it to be made, that would not obviate the
objection; for
for suppose
the Court below had entered the
judgment in terms, "upon all of the aforesaid offences
of which the defendants have been lawfully convicted:"
such a judgment would be bad in form as well as
substance; for it would leave it doubtful in respect of
which offence the defendants were convicted. How,
then, can it be argued that the presumption that such
a judgment has been pronounced is to render it valid,
when if it had been so pronounced in form it would
have been invalid? It is not sufficient to say, in a
case where the heaviest and the lightest offences have
been charged in one indictment, and a general judg-
ment has been given, and it afterwards appears that
the counts charging the greatest offence cannot be
supported, that the party may petition the Crown.
Such a proceeding is contrary to the spirit of the
English law, which does not seek to secure men from
injustice by the favour of the Crown, but by the
rules of law, and which establishes their rights, and
does not put them on receiving those rights in the
way of mere favour and indulgence. The cases of
Peake v. Oldham (s), and Grant v. Astle (t), have
(s) Cowp. 275.
(t) Doug. 722.

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v.

been mistaken; they do not lay down any doctrine, but proceed on a supposed rule; and The King v. and Others Ingram (u) is not wrong in itself; for the Court may THE QUEEN. in the first instance enter the judgment on the good counts; but it is wrong in the application of it here; for judgment having been entered, a Court of Error cannot tell whether it has been so entered or not. The King v. Benfield (x) is open to the same observations. Under such circumstances a Court of Error stands in a criminal case, with relation to the judgment of the Court below, in the same situation in which an ordinary Court does with relation to the verdict of a jury in assessing damages; and the result is, that the erroneous judgment, like the erroneous verdict, must be reversed.

Then assuming the judgment to be a general Judgment on an Indictment containing bad as well as good counts, it is submitted that it cannot be supported. The same rule which applies in civil, is applicable also in criminal cases. A general judgment on an indictment where some of the counts are bad, is like a general verdict on a declaration where some of the counts are bad it cannot be supported. The Court discharges those functions in a criminal case, which in a civil case are discharged by a jury: the Court awards the punishment, as the jury awards the damages. Where there are any bad counts in an indictment, it cannot be presumed that the Court will, except through error, give a judgment which proceeds as much on the bad as on the good counts and if the Court has committed error, that error must be corrected. But where the form of the judgment is such as to prevent the Court of Error from seeing how far the Court below has proceeded