1844. O'CONNELL v. Lord Denman. it." For instance, upon a count charging an intent to murder, I should say, perhaps, "You cannot believe and Others that he intended to murder; and therefore, if you THE QUEEN. agree with me, you will relieve the prisoner from that part of the charge." So of the counts charging an intent to disable and an intent to maim. "No such intent," I might say, "appears to have existed; but as to the intent to do grievous bodily harm, you will consider whether you think that it is or is not proved." If the facts required it, I should take care to desire the jury to say "Not guilty" upon the first three counts, and "Guilty" upon the last count alone. And again, if any of the counts appeared to be bad, I should take the verdict on the good counts only. The prosecutor might enter a nolle prosequi on the bad ones, or offer no evidence, and consent to a verdict of acquittal upon them; or possibly they might be quashed by the Court for insufficiency. I say that any one of these is a proper course, and that it removes all difficulty. What harm is then done? Why is the verdict to be taken upon all the counts, good and bad? Your Lordships heard it stated the other day, that unless that practice is allowed you will impose upon the Judge the inconvenience of being compelled to form an opinion on the validity of the counts, before he proceeds to pass judgment. I see no inconvenience in that. I think he ought to take care that the count is good before he allows a verdict to be taken, or at least before he allows judgment to be entered up on it. So far from thinking that any evil will arise from that practice, I think very great good will arise from it. And I must take the liberty of throwing in the observation, that in my opinion there cannot be a much greater grievance or oppression than these endless, voluminous, unintelligible, and unwieldy indictments. An indictment which fills 57 closely printed who folio pages is an abuse to be put down, not a practice I am deliberately of opinion, that the practice of selecting at the time of trial the counts on which judgment may be lawfully awarded, is the right and wholesome practice, producing no inconvenience, and affording a great security for justice. In old times, when the indictment consisted of a single count, it was of necessity the universal practice to form an opinion whether that count was valid; the constant aim of modern legislation has been to simplify criminal charges, nor is any object worthier of attention in framing the code of every civilized country. 1844. I think, also, there has been another mistake made O'CONNELL as to the practice of the Court of Queen's Bench in and Others this country. It is said, that when an objection is THE QUEEN. taken, and a motion made to arrest judgment upon a v. Lord Denman. particular count, the Judges are in the habit of saying, "No; we shall not hear any argument upon that particular count, because there is another count upon which the judgment may be supported." Nothing is more reasonable, if some counts are admitted to be good. But was that the case last year, in the indictment against Feargus O'Connor? (s). There were two counts only upon which he and others were found guilty; upon one of them, namely, the fifth, we first of all proceeded to hear an argument whether or not the judgment should be arrested. If the judgment had not been arrested, we should have proceeded to pass judgment upon that count. We thought, however, that the judgment ought to be arrested upon that count; and thereupon it became necessary, in the second place, to examine another count of doubtful validity, upon which the jury had also found the prisoners guilty. That count was framed in a style of excessive verbosity and ambiguity of expression, which no clear ideas could well be formed. The then Attorney-general, my right honourable friend the present Lord Chief Baron, discovered that there existed very great doubt in the minds of the Judges whether that other count was a good one, and accordingly he has never pressed for judgment upon But the course then taken was to attempt to arrest the judgment, and the argument for arresting the judgment was permitted upon those particular upon it. (s) In Trinity Term 1843; not reported. The judgment was arrested on the insufficiency of the allegation of venue. See 13 Law Journal, M. C. p. 33. counts which were successively attacked as bad counts. It is not correct, therefore, to say that the Court would never enter into that consideration. 1844. O'CONNELL and Others v. Lord Denman. The subject may be illustrated by a case particu- THE QUEEN. larly in my mind, which occurred lately before me at Guildhall (t). There was a doubt made whether a charge of conspiracy in one of the counts was not altogether good for nothing, as stating facts which had taken place in a foreign country. My observation upon that was, "I shall not pass judgment here, though a verdict of guilty should be returned, and therefore it is immaterial what I may think about the goodness of that count;" but if I had been obliged to pass judgment there, then the judgment would have been upon both counts, and the party must have taken his chance of what the Court of Error might afterwards have thought upon the goodness of the count. But it seems to me that, as in the case of damages, I have suggested a short and simple mode of keeping clear of all difficulty, which I am sure no lawyer will contest with me. So with regard to several counts in criminal cases, the objection may be entirely avoided by the Court passing a separate judgment upon each count, and saying, "We adjudge that upon this count on which the prisoner is found guilty, he ought to suffer so much; that upon the second count he ought, on being found guilty, to receive such a punishment; whether the count turn out to be good or not, we shall now pronounce no opinion." And that question would be reserved for the 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 upon the charges which were valid. (t) Qu. the case of The Queen v. Lord Ashburton, tried before Lord Denman at Guildhall, on the 1st & 2d July 1844. 1844. O'CONNELL v. Lord Denman. Now, both my noble and learned friends have stated that this is a mere technical objection, and that no and Others injustice can arise from the existing practice. I must THE QUEEN. say that I think the greatest injustice may arise from it. It is very different from irrelevant stuff being foisted into a good count. That is highly improper, if it is done by way of prejudice, because a criminal charge ought to be distinct, clear, and intelligible in itself, and free from all matter of imputation that does not belong to the offence. But still the Court would easily throw aside that irrelevant abuse, and pass judgment only for that which goes to make up the offence. Suppose there had been three indictments, and the prisoner had been found guilty upon all three, and the Court had been permitted by the practice to pronounce one judgment upon all in one sentence, I do not see how it would be at all different from what has taken place here. The subject is so far from being merely technical, that it may involve the greatest injustice; because you may inflict the heaviest punishment for the lightest offence, or indeed for that which may turn out to be no subject for punishment at all. My noble and learned friends have referred to some authorities, which it would not be right for me to pass over altogether. They of course selected those which they thought the strongest, and to those I shall direct my attention. The first, I think, which was mentioned, was the case of The King v. Powell (u), in which there was a general verdict of guilty, for two offences stated in two different counts, one of them charging an assault with a particular intent, and the other a common assault. The sentence was general, and was such as only the verdict (u) 2 Barn. & Ad. 75. |