Current:

Northern Star (1837-1852), 10th June 1843, Edition 2 of 4, Page 6, Untitled Article

Page 6
Page 6
6 of 8

On this page

  • Text (3)

      Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.

    • Untitled Article

      Untitled Article

    • Untitled Article

      Untitled Article

    • Untitled Article

      Untitled Article

  • Transcript

    • Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.

      Additionally, when viewing full transcripts, extracted text may not be in the same order as the original document.

      Untitled Article

      COURT OF QtJEEX'S BENCH , SiTUHDAT , JC 5 E 3 . TTTR QTTEKi U . OCO 5 SOB . -LSD OTHERS . Thar Iokdships having intimated that they -wished to tear the counsel for the defendants on the question ofveimBonly , Mr . Eats proceeded to address the CoarL He had to appear in snpport of th ? ral-e for arresting the judgment in ihisxass ; and . « m 2 ninghiHiBelf entirely to the point their Lordships had suggested , namely , the delect ia venue feat appeased on the fourth and fifth connts , he should snbmit that the case on behalf of the defendants ought to succeed , and be would piay their Lordships' attention particularly to the offdnce ^ harged in the fourth count , before he snbmitied Hie grounds upon

      "Which he relied for the judgment of the Court being in his favour . Tbefounh connt in effect charged , that divers person * , on divers days between the 1 st of August and the 1 st of October , at divers places , tunmlinonsly assembled together and by -violence impeded labour , and thereby caused terror and alarm . "That tras the offests , $ f any , that -wss charged on the face of tins indictment , and he begced their lordships would bear in mind that the indictable offence charted -was , that divers persona at divers places tumnltnonslysasesibled and by violence impeded labour , and then it Trent on to charge what in a case of felony would be a charge of being an accessory . The allegation -was , that the defendants at Manchester , in Lancashire , did aid , abet , &C-, the said persons to continue and persist in ,

      thesauronla-Bfal araBineheia . It -was , therefore , an mdieinrTil whereupon two steps were essentially necessary to prore fee corpus dkicti alleged to oe charged against the principal priminaia , and to proTe lhat the defendants wae accessories to that crime , -whatever lhat might be . As the count-was framed , he submitted that the tract of alleging any place for the commission of the principal offence -was fatal to the count , as matter of objection in point of substance , and also fatal on account of * be rales of pleading . He wonld first tu 1 flygg « TiTTTioif to that TSffcich "was in * Vf nature of an objection in point of substance . Is the want « f alleging any places prevented it appearing upon the record thstany indie&ble offence at all was commited by the principal offenders , of coarse the charge against

      the accessories ironld fall to the ground i unless the principals "were guilt ; of an indictable offence , the accessories -were accessory to thvt which -was nofrindictaJBie , jiid , therefore , -would aot be themselves indictable . The argument on this point lay in a waall compa » B , —namely , that it -was perfectly consistent with aQ that -was alleged , that the principal offenders might sot hare been indictable for the acts alleged ; and ' toot it on the ground that those acts might hare occurred is parts of the . glebe ont of the dominion * of her Majesty , -which -was consistent -with the allegagation , here , that the acts charged might have taken place-beyond the limits of her realm , and if they had taken place there and -would not be indictable , this point wonlS be established .

      The concessions made by his Learned Friends appeared to him to go a long tray to establish it The Learned Attonsfiy-GaneKO , -who had opened thlB case , said the chargeagainstthsprindpal offenders was cbitfiyJinteDded io spread over divers counties . The description vent on , Ihat a large portion of the realm-was in an unsettled state , and that the acts complained of-were going on in that portion of the realm , and Ms friend admitted that the Description did apply , and - was intended to apply -without limitation , to diTers counties , to every county in the realm , -without limitation . In the course of the argnment their Lordships had pressed his Learned Priends to say why the principal offence should be confined to the counties of England ? Would it not be ctpally indictable if committed in Scotland or Ireland ?

      His mend said that if the tumultuous assemblies had taken place in Scotland or Ireland , or in any part of the realms of her Majesty , although not within the jurisdiction of this Court , that -would constitute an . intiictable Gfiknce Jar aiding and abetting in . this country ; and he might , therefore , state in approaching this branch ef the argument , Mb friend's principle ¦ wonjd go to say that if ihe effence occurred in any part of the Queeni dominions , in Scotland or Ireland , or any of the colonies , a contest for labour beVtreen the blacks and the -whites in Jamaica , an indictable offeree would be constituted , and his Learned Friend had so stated it If the description of the principal effence -was conceded to apply to any part of the dominions of the Queen , "whether -within t > n « hemisphere or the other hemisphere

      he -would ask -what there -was to fix the acts of the dirers persons -who assembled at the divers places—¦ what there vaa to aho-w that those places must be "wiihinibe dominions of the Queen ? There was _ no description given except that the assemblies occurred in tirrcEs places . ; and surely he might -contend -with confidence that in CTTroinsi pleadings it must appear upon the face of the indictment that all the essential facts that constituted guilt -were there alleged , as had bees suggested -when this rale -was moved . It was perfectly possible that there might have been in France a dupo- < sition against EngHth artisans beyond the power of the Queen—at "was perfectly possible that tumultuous a » -1 semblies might hare taken place , and that the xnbjects j of the Qnften employed in foreign jnannfactariea might

      hare been impeded in their labour , and that terror had been occasioned to the subjects of the Queen . That was the full amount of the description of the offence ; and 25 t . it -was possible to follow it up , assigning the place vox of the kingdom , either in Pans or New Tori , thai "would be intelligible . In ^ rirniTini proceedings there ought to be certainly , and he submitteS ihat on this ground this indictment , -which -was of a perfectly anomalous description , and -was * l"d ¦ very wide for ihe purpose of siring great advantage to the prosecutors if they departed from precedent and brought for-¦ ward an unusual charge in an nnufual form , for the purposes is had saentioned , —if there -was a defect in an fpsPTrtiwT allegation , he asked their Lordships to give the defendants the benefit of the known rales of die

      lair and construe the indictment atnctly ; and then , it did not appear that any effence had t&ken place -within the jnxisdiction of the Const . But , passing irom this point to the objections fonnded en tfcs known rules of criminal pleading , and for tkis branch of the argument , that the principal offenders -were charged with an indictable offence , he submitted that this count -was bad for -want of alleging a Tenne to the principal offence , that it -was bad on that ground , and -was not eased by the statute of the 7 th George IT ., c . 64 , sec . 20 . Mr . Justice Colsetdge -would ask -whether this did not Test on ¦ what the Learned Counsel had said in the beginning , that if it had been a caw of felony the charge amounted to that of an accessory before the fact , and that there being no felony committed the charge of accessory feB to the ground ? Supposing it were a case of substantive misdemeanour ? Mr . Ebxe observed , that he -was now coming to the second point of his argument .

      Mt Justice tXHEBXDGB -would suppose the case of jTiwtrnp a ^ Frenchman to murder a Frenchman in TrancB , -would not the int ? Sng in this country be an indictable offence si commonrlaw ? Mr . EEiE . shonld state that inciting one Frenchman to defraud another French subject -was not an indictable t-ffence so lar as he knew . Of course there might be facts such -as would ha * re the effect of involving the two countries in a -war , 'which might -rary the case 3 but the inciting to defraud , according to his limited

      knowledge of the lawB of this country , -would not be indictable- He wished to draw the attention of the Court to this point . -Iflnis paint bad been an indictment for felony as the principal effance , and the defendants were alleged to tare been accessories , the indictment -was framed in such a way as to make that proof necessary , "which -srenld have been necessary had the charge been that of f dray . The authorities which had been cited by the Solicitor-General , in misdemeanours all wen principals , or they might be taken seme as principals , some as accessories .

      Sir . Justice Colekidge Trould ask if there might Dot be a third case of substantive misdemeanour ? 3 It . Eki-E -would admit that , and he was going to point attention to the casesof "The King v . Hifgins , " and "The 35 ng t . Stock , " between which and the -caw 310 V before the Court there was a substantial distinctioB . Tfce present ease required proof of a principal misdemeanom , and the defendants alleged that im principal migdenjeaiionr had been shown . The charge was a charge thiit there -were tumultuous assemblies , and

      that the defendants aided and abetted the persons -who took part in these tnamitnons assemblies , to sonnte-Banee tie said assemblies—not that they Incited them to assemble together , or commit any original misdemeanour , but the charge alleged the Existence of a positive principal misdemeanour , and that the defendants aided and _ abetted those parties to continue and assist in the said meetings . His friends had sought to avoid this by shifting the ground , that they might be charged as principal misdemeanants in endeavouring to procure the commission of the effence .

      Mt Justice Colebidgb supposed the Learned Ocunsel admitted ibal wruid be indictable ; but would it be an effence to commit that cut of the realm which weiild be a jnisdembanour if committed in England ? Mr . EHlKimajUBed it "would . 3 Ir . Justice Coleridge—If it -was to incite a person out of the raalmil -woxid not be an oSence ? Mi . Eei . b—To commit murder ont of the realm -was statutory , mft for any other offencathe jndge -would mot have jtmsdiction . Et "was sot aware of any law that would make it a misdemeanour to endeavour $ 0 stir Bpthe EDbjects of aforeign country to destroy the rights of property . There might be a country -when there ¦ was ao protection . He had pressed npon tfceir Lordships * aitention the furm of the indictment , that divers persons were gafltyef an indictable misdemeanour , and that the defendants aided and abetted them . He had

      Butautied that Tt -was not an indictable offenw , and he trbnld mow ssbmit , that even asscminj it to be indictable , iffiver&filssB , lor -want of wroe , tte objection ir « fitaL and . thai it "was aot cured by the statste . To eonEtitnte th > efface htrt « harfed , it -was perfecUy dear "that the » mart h » v « b * a an v&lawfal axsaaUing jtad ^ n In ^ diif of labow by violet * , Th « M -fMta Tnotthe eitahlisfaed , it w < I * X * enenlial to th « in dictment , beaBjetiie « harfe -was , that the defendants had aided and abettooVihejwMoni to conHime andasaist 5 « ndyflierefore , the offianctW an essential fact , and far the "want of a place bong stated in the allega Son on the face of ihe fiidictment , the coant was bad according to the rales 01 pleading . He -would tronble Ihe Conrt wllh alsw anaorifies , todiow that time and place were material facts , and most be stated on the indictment Corny ** Dfrsi , " Indictment" * sec . 2 . showed that yon must not only in the first instance

      Untitled Article

      state the time and place , but that " it must be repeated to every material fact ; and , therefore , quod 10 If apud B . insultum fecit el cum ffladio felonict percussil , without saying ad lime et ibidem ptrcussii , is bad . " So the reference onght to be to a time or place certain ; as if it says , quad percussit apud A in comitatu prcedido , where two counties axe mentioned before , thengb one -was in the addition only , " unless they alleged a place fox a material fact , the indictment was bad . " In Hawkins , boek 2 , c . 25 , b . 83 , it was said it seemed agreed by all boots that no indictment 'was good without expressly shewing some place -wherein the offence -was committed , -which must

      appear to have been within the jurisdiction ef the C mrt in which the indictment -was taken , and must be so alleged , as ta be free from all repugnance and inconsistency . This matter also w&s mentioned in 5 T . R , 620 , the case of " Tqb King v . Holland , ' * -who -was indicted for malversations in office daring the time he was one of the Council at Madras . Mr . Justice Boiler there said , " that every material fact which is issnable and triable must belaid with time and place ; it must be laid with a venue , for the sake of trial ; and wherever a venne is necessary , time most also be mentioned . " This case only set up the general proposition for which ha was con * ending .

      Mr . Justice Coleuidge asked if it must be laid in some place in England , to wit , at London ? : Mr . Eblb said , according to the rales of pleading , it onght to have been laid in that way , and in many other cases it was recommended that the Indictment should state the matter suggested by Mr . Justice Coleridge , to wit , at London : bnt all he was argning was , that they must assign a place for the essential fact . ¦ Mi . Justice Coleridge observed , that the Learned Counsel must go back then to the principle of the old cases , where the place would have been the real place , or the place in the county where the grand jury sat ' Mr . Eele -would allude to the case of the rebels who were tried in Surrey . Tbe indictment said , " To ¦« rit . tA Croydon . " They were fonnd guilty ' of rebellion ai Carlisle , althongh tbe indictment was " to Tfitj at Croydon . " *

      Mr . Justice Coleridge referred to a cast in 4 Can , and Payne , 394 , -where Jlr . Justice : Bayley had directed to words of a venne , to be inserted ll at St Marylebone . " Mr . Ebxe said , they might name a place within the jurisdiction , as in tbe Court of Admiralty and the Central Criminal Court . Mr . Justice Coleridge—That most be according to the fact within thB jurisdiction . Mr . Eale said , the objection 'was , that they did not allege any place for the existence ot this offence . It was as if they had not said anything at ail about the place . He submitted that the , point alluded to bj Mr . Justice Coleridge of alleging " the real place" and then adding " to wit" stood on no coed foundation , and ,

      therefore , it was now no longer necessary . The indictment was net vitiated by it He would advert to the case of " Tbe King v . Haynes , " in 4 Manle and Selwyn , 21 i , which was an indictment against a miller for receiving com to be ground , and returning bad or mixed meal ; and he brought the case before their Lordships because it was there held , upon error , to reverse a judgment after Haynes had been convicted , that ! the indictment was HI , if it did not show a certain place where the defendant received tbe barley to grind , the indictment alleging "the jnrors , &e ., present thatF . Haynea , late of the parish of Bra&ted , in the county of Kent , miller , on the 5 th of March , in the S 4 th Geo . 111 ., and long before , and continually thence until'the day of taking the inquisition , was possessed of and did keep ,

      and is still possessed and doth keep , a certain common and public mill , called a water mill , situate at the parish aforesaid , for the purpose of grinding wheat and other corn therein ; but tbe indictment did not allege that h » received the corn in die county of Kent to be ground ; and Lord Eilenborongb said , " Then , as to tbe want of a venne where either of the parcels of < barley was received , I have been endeavouring to see if it might not be dispensed -with , bnt npon looking to ! the Indictment , I find that tbe defendant received the barley for the purpose of being ground at the mill , and that the purpose is a fact constantly referred to in all the subsequent zllegations ; for they all relate to the barley so received by the defendant as aforesaid . Therefore it seems to me that the indictment is defective , for want

      of a venue- to a-fact which is material , and may not be disj > ensed with . " He wcnldput that as an authority , where the objection was taken after verdict , and in a ease where it almost appeared to be implied that the miller -would receive the corn at the mill . J 3 ut it was possible that Haynes might have received the corn at another place , and for -want of alleging where it was received the indictment was held bad . In the case quoted it was not averring a material fact Bnt the present offence , as set ont in the fourth count , was alleged without any allegation of place . Upon that broad general principle the indictment would be bad , ioi a material fact was alleged without any place . This objection had been attempted to be cured in various ways : and it was contended that this fault was

      by analogy cored by the statutes of amendments and feofafls , and his Learned Friend the Solicitor-General had contended before their Lordships that this objection was cured after verdict by the 16 th arid 17 th of Charles IL , c 8 , where , after curing many defects , it was enacted in the first section , "That no judgment shall be arrested for that there is no light venue , so as the causes were tried by a jury of ; 1 he proper county or place where the action is laid ; " and his Learned Friend had cited , in snpport ef that view , a variety ot authorities . He had cited the cose of " Skinner v . Holt , " in Sannders , and other authorities ,

      M of -which were ease * after verdict , and all were defective for want of alleging a place . In two late cases a similar defect had been held to be cured on dtmurrer , ¦ under the statute 4 and 5 Anne , c 16 . This argument of bis learned friend , tbe Solicitor-General appeared to him strongly to confirm the objection . Before the statutes of feofails thin objection would have been good in civil and criminal pleadings , bnt those statutes applied only to civil pleadings . The statutes relating to curing defects after verdict were confined to civil pleadings , and did not relate to indictments . The law as to indictments remained tbe same as it was before these statutes came into effect

      Mx . Jnstaee Patteson said , in construing the late statute of amendment , the 7 th and 8 th of George IT ., they must be guided by the analogy of construction put npon the other statutes of feofails and amendments . Mr . BB . LB continued . —Anotberargumentinuch pressed on their Lordships * attention , tbe calling the principal offence an " unlawful assembly , " was not : a material fact but mere matter of inducement . The cases of " The King against Fuller ** and " The King against Stotf' had been quoted , but he submitted that these cases were perfectly distinguishable from the present The indictment charged tbe procuring and " encouraging- " others to unlawfully assembling ; bnt bo act cf Parliament had made this an offence . In "The King against Fuller" the substance of the charge was that

      the defendant Fuller , contrary to the 37 th George III ., c . TO , advisedly endevoured to seduce persons serving in his Majesty ' s forces by sea and land from their duty and allegiance , and by this statute jail persons convicted of this conduct "were to be adjndged guilty of felony , tod suffer death as felons with * out benefit of clergy . It was urged in that case that the gist of the statute was in the word " seduce , ' * and that therefore the means onght to beset forth . The answer was , that the " endeavour to seduce" was but a conclusion of fact , and that the fact was fully expressed by the mere force of the -word " endeavoured , " tcz * , -without specifying the means employed . This was an indictable misdemeanour , created by act of Parliament The charge of "Raiding and

      abetting" was a charge the technical meaning of which was known to the criminal law , and was } understood technically as being accessory before or after the fact . The case of The King v . Higgins , " in 2 E ^ t ' a Reports , page 4 , was not an offence created by act oflParliament , and in that case it was very much discussed whether the " soliciting * ' a person to comadt an offence , without showing that the offence was -committedi "was indictable or not ; and it was there held that «> to solicit a servant to steal his master ' s goods is a misdemeanour , though it be not charged in tke indictment that the servant stole the goods , nor that any other act was done except tbe soliciting and inciting , and such offence is indictable . " But it could not be said that this argument was applicable to the present case . There was no allegation of soliciting evil-disposed persons to collect in unlawful assemblies . The fourth connt only alleged

      that the defendants " aided and abetted / ' and it was perfectly possible to " aid and abbt" -without any communication between the principal offender and the accessory . In the case of a burglary being committed in the knowledge of a party who saw the peace officer coming , and who yet , from hatred to tbe ~ landlord of the house , was desirous that the offence should be completed , and who diverted the attention of the officer , that party would be an " aider and abetter" in the felony , without there being any communication between the parties . According to the description of the facts , many of these defendants might have haia no earthly communication with any of thB principal defendants . Then , would it not be putting a most ' strange construction on this indietment to say that the defendants were charged with " soliciting * " to commit an offence , when the defendants might merely have " aided and abetted ?"

      Mr . Justice PiTiESOS—There are other words besides " aiding and abetting" ia the count , Mr . Erie ; there ar « " assisting , comforting , supporting , and enceuragiag . " Support shows support in doing something that is actually being done . \ Mr . Ekle believed there -were other words . In the understanding of lawyer ! this was a charge of being accessory before the fact . If they xrappowd a rebellion , and persona were to send down arms to the rebels , ht submitted that that -would be aiding and abetting comforting ^ aardattng , mpportang , and encouraginf tfce » beli , sad yrtUilfht be as art don » wflhomt * aiBgle

      • mad of offlmwdcation betweea fee putiM to bring 1 k withiBihe ow * of " The King t . HiggislL" He confidently nlied that then -was nothing in the count from -which the defendants could understand that they were charged -with having " solicited" any person to commit an offenee . In the case of The King y . Burdett / reported in 4 BaraewaH axtd Alderaon , 458 , the poinfc much discussed by the Conrt was whether the defendant would be guilty of an indictable effence for writing a libel with intent to pnblish it in the county -where it ¦ was written , if afterward * it vrere published in another county ; and there Holroyd , J ., heia that writing a

      Untitled Article

      libel with intent to publish it , showing afterwards that it was published , was an offence per » , and then said , "If the defendant is charged with writing and with publishing a libel , and be wrote it in Leicestershire and published it in Middlesex , an offence 1 b committed in oither place , and therefore it may be well tried in either county . " This case did not appear to him to fnrther the argument oft bis Learned Friend . He would refer to the case of V Tbe King v . Scott / ' in 2 East Pleas of the Crown , pag § 780 , where it was held that indictment against a receiver of stolen goods need not allege time and place . It was sufficient to allege the fact of Bteallng the goods and their receipt ; but this -was a charge under the statnte of the 5 h . of Anne ,

      c 31 , s . 6 . which made a substantial misdemeanour to receive stolen goods , knowing them to be stolen . Section 5 enacted I that a party receiving stolen goods , knowing them to be stolen , might be proceeded against as an accessory after the fact ; but here the receiving "knowingly" was the gist of the offence ; and , although it was alleged that a stealing must have taken place , yet for the purpose of this offence no distinct act of stealing need be established . If the property waa received by the defendant , without inquiry and for small value , that would be good evidence to go to the jury that the defendant had received the goods knowing them to be stolen , without any evidence whatever being given of the goods being stolen goods .

      Mr . Justice Coleridge—You must state them to be goods belonging to somebody . Mr . Eble would submit , that after this case of " The Kingv . Stott , " ( it would be sufficient to turn to the statute of Anne ; and say the defendant received certain stolen goods knowing them to be stolen . Mr . Justice Coleridge . —The averment that the goods " had been stolen must be proved , as it is a material fact It is no matter on this principle whether the fact be proved in the ordinary way , by evidence or by admission . Mr . Erle . —In point of pleading , you need not allege the stealing , but that the goods were " stolen goods . " Lord Dekman—You must prove that they were stolen goods .

      Mr . Eble—That they answerd to the descriptionso to speak—of " stolen goods . " The Learned Counsel then c'ted a case from Fiizgibbon , page 123 , where tb . 9 indictment being for keeping away a witness from the trial of a misdemeanant , it was moved in arrest of judgment , that it ought to have stated that the defendant knew that there was a criminal charge , and that the trial was coming' on . The answer was , " No ; the charge is sufficiently stated in this , —that she , knowing the indictment was coming on to be tried , endeavoured to keep away the witness : " the endeavouring to keep away is the gist of the offence—tbe state of mind constitutes the offence , combined with the actual endeavouring . :

      Lsrd Dbnman—The " state of mind , ' and endeavouring , would of themselves be , in certain cases , no offence . Thus , suppose the case of there having been no real offance , or of the trial coming on before a court ef no jurisdiction—the keeping away a witness might be no offance . Bo tbat then it is not quite clear that the existence of-the legal grounds of trial was not a material fact So with tbe stealing , or an indictment for receiving . And -does it not seem that these are parallel cases with the present ? Mr . Justice Coleridge—Could there be tbe offence of receiving , if the goods had not been stolen ? Mr . Eklk—No ; certainly it is material , as part of the description . Mr . Justice Coleridge—Yes it is alleged without time or place . '

      Mr . Eble—But the offence—the subject of indictment—arose subsequently to the stealing ; the charge is the receiving . The stealing ot the goods received guiltily is matter only of description , just as in an indictment ione night instance ) , for exporting machinery , the makiDg of tbe machinery is not alleged , not provable , not travesable , yet it must have been made to be exported . Mr . Justice Coleridge—But it is no offence to make machinery . The charge is solely the exporting . Mr . Eble . —And , my Lord , in the indictment for receiving , for the purposes of that indictment , it is not necessary to consider the goods having been stolen as any more important Mr . Justice Coleridge . —There is no distinct allegation of it independently of the charge— " sciens "

      Mr . Eble . —That implies it ; and in an indictment , necessary implication amounts to express averment" recipiena , mnens , " sufficiently avers it . The statute on that offence assumes the stealing to have existed , and then , on this prior state of facts , creates a new misdemeanour . If you receive things to which that description applies , knowing it to apply , you are guilty of the misdemeanour created : the criminal pleader may charge the" offence , by averring that you took goods within tbat description knowing it Mr . Justice Coleridge . —Would argue that " stolen goods" is as much a merely descriptive phrase as " brown cloth ?"

      Mr . Erle . —Let me put the case of " French silk ;" that I think a fair analogy , importing French silks " knowing them to be French . " The Learned Counsel then cited the case of " M'Daniel , " in lat Foster , 121 . That w&s an indictment foi aiding and abetting ; tbe principal offence being in one county and the aiding and abetting in another , and the indictment was in that ¦ hape . There bad been a conspiracy to incite somebody to rob one of the parties , for which the robber was to be apprehended by tbe others who would share thb reward for his apprehension among them . The robbery was in Kent ; the counselling , Arc , in Westminster . Tbe case is the more remarkable because it clearly exemplified that persons aiding and abetting need have no communication with the principal offender . And in fact it was there held that no real robbery had been perpetrated , the taking having been collusive and voluntary on the part of tbe person who allowed himself to be robbed , for tbe purposes of the

      conspiracy . Mr . Justice P . * tteson—Is there any case in which a man has been indicted as an " accessory before the fact , " the fact in question having never been committed ? Mr . E&ls ( observing tbat be did not think the state of the facts here involved that point ) said be had never met with such a case , which struck him as in its terms contradictery and impossible . He should , however , argue tbat in this case the indictment—could not be sustained as sufficiently charging and aiding and

      abetting a ftatmre offence . The Learned Counsel proceeded to argue tbat the statutes of feofails woild not help the total oaiasion of venne . They cured the imperfect statetoemt—not the entire omission , of a material allegation . As to time , a less stringent rule was recognised by the statutes ( for an obvious reason ) than as to place . If a place at all were named as the Bcene of the acts alleged , they might have taken place in France , or any place not within this realm . Then , was the fault cured by the venue in tbe margin ? It was said that this might be taken as the imperfect statement of avenue .

      Mr . Justice Coleridge—You assume that the emission of the . venue to one material allegation is an omission as to the whole % Because , there is a venue as to the latter part of the indictment Mr . Erle—I am not sure my argument would go to that length . Mr . JuBticetJOLERiDGE—The indictment shows the offence to have been committed within the jurisdiction . Mr . ERLE—Not an offence . Mr . Justice Coleridge—At all events the acts alleged to have been the offance ; they are alleged to have been committed within the jurisdiction of the Court

      Mr . Erxe—But my objection is tbat there is not slleged to have been any offence , that the acts are not alleged adequately as forming an offence . Will the marginal venne aid the tbe defect ? "Lancashire to wit—the jurors en their oaths present , < fcc . " He weuld contend that the word in the margin applied only to the words immediately following , viz—" the jurors , " not to the offence subsequently alluded to ; and it was as though it ran , ' % the jurors for Lancashire present , " &o . The statutes of feofails Applied to civil not criminal proceedings . The margin cured defects in actions but not in indictments . Three authorities cited by the Aitornuy-General to the contrary would not be found adequate to countervail the weight of authority in support of tbat proposition . The first one was in " Kail worth , 33 , " where the marginal venue was ' Oxford City , " and

      the indictment alleged an offence m Oxford . The Conrt said tbat they wonld intend "Oxford" to mean Oxford county in the body of the indictment ; and having intimated that tbe indictment was bad , they say "that if nothing had been said on the margin of' city , ' it might have been intended as a general word , and not have been aidaile . " ThiSj it would be observed , was an extra judical dictum j the pmport of the case was that the indictment was bad for the imperfect venue in tbe body , not that it was good for the venue in the margin , the reporter merely adding that had it not been for the mistake in the body , the margin might have cured the error ; and in another of the three cases cited , where the Court held the addition bad , there was merely an extrajudicial dic / um , that the venue in the margin related to the offence not to tbe addition .

      Mr . Justice Patteson aaid , there was a case in 3 Cro . jac . 167 , ( Leach ' s case . ) Mr . Erle—The argument was , that the omission of tbe county to the addition was fatal and extra-judicial . Tbe Court Baid the margin referred to the offence , and noi to the addition . All the Court required to say was , that the margin did not refer to the party ' s addition . In the case of * f Butler" it was alleged that "Elizabeth Butler , of Oxford , " was bad for tbe want of the " county aforesaid ; " there was a venae in the margin , and it Was argued that the county in the margin should be referred to the place where the offence was committed , and not to the addition of the party . The ease was no doubt in point for bis Learned Friends .

      but his answer waa , that it waa extra-judicial . It was merely an omission of " aforesaid , ' ? and therefore could not rtfer to the margin . He waa not aware of any other authority cited by bis Learned Friends as immediately helping them . In the 2 nd Lord Raymond , 888 , " The Queen V . Rhodes , " which was an indictment for subornation of perjury ; the information set out that" C . W . Rhodes , late of the county of Surrey , " &c . It stated ithat Rhodes had persuaded a man to swear to a falsehood , and it stated that the man was indicted at St Clement Danes , in the county aforesaid , which would appear as if St . Clement Danes was in the county of Surrey . The ease was tried at Westminster , and an objection was made tbat tbe Judge had no right

      Untitled Article

      to tiy tUe cage at Westminster , because the cause of action Was laii in Surrey . Lord C . J . Holt said there was a difference batween actions and indictments . If this bad been an action , and the plaintiff bad declared thus , and " Middlesex" bad been in the margin , it must have referred to tbat county ; and tbe reason is because ; " Middlesex" in the margin , stands thereto denote the county in which the action is laid , and therefore , though a county be mentioned in the declaration for ia particular purpose as for an addition of one

      - ^ A i a % A jf ft A M % M M 4 of the parties for the purpose before the venue , yet the comitatu prcedido should not relate to that , but to the county in the margin , which' waa put there for that purpose . But here tbexe was no «• Middlesex" in the margin . Tbe county in the margin states the place where the cause of action is alleged to bave been , hat in an indictment the county in the margin is only put to denote where the indictment was found . In the same volume ef Lord Raymond , 1304 , tbe exception was , that " Southampton" was in the margin . LordDENMAN said that had been overruled .

      Mr . Erle said there was a distinction recognised between inoictmento and actions . Mr . Justice Coleridge said , in an indictment , if there was' a county in the margin and county aforesaid in the body , it was clear that would refer to the margin . Mr . Erle said , clearly so . The next case was that of " The King v . Burridge , " 3 P . Williams 496 . It was not laid that tbe fact of ailing and assisting was done by force , therefore the aiding and assisting might have been done in another county , and the Court could not take notice that Ilchester was in the county of Somerset , In the 1 st Sounders , 3 C 8 , in a note it was said that it was usual in practice to insert tbe name of

      tbe county in the caption instead of the county aforesaid , but the word " aforesaid" waa sufficient . The name of tbe place , without the word " aforesaid , " waa not sufficient ; but in civil cases it was otherwise ; for it was held sufficient to name the place only in the declaration , because the place' is always considered to refer to tbe county in the margin . He trusted tbat the authority to which he bad adverted would sntiafy their Lordships that the three cases named by his friend the Attorney-General were extra-judicial dicta . In " Hale ' s Pleas of tbe Crown , 165 , '' it was said that the caption was no ; part of the indictment ; but the style , or preamble , or return made from an inferior te a superior . If the case of " the King v . Minter Hart" was tenable , the margin would not cure a defect in the indictment

      Mr . Justice Patteson observed that it was there said to ba taken before verdict , and was tbe same thing as if tafcen upon demurrer . Mr . Erle said that unless there was a statutable provision , any objection tbat would be good upon special or general demurrer would be good in arrest of judgment Lord Denman said that in Hart ' s case there were several indictments , and he was transported upon one of them ; therefore the history of the others was very immaterial , but be believed Mr . Bodkin was In those

      cases . Mr . Bodkin observed , that upen the success of the objections Hart was set at liberty , but was convicted upon another indictment . ' Mr . Juattce Patteson said the judges directed an acquittal , and treated the objection the same as if it bad been brought before them on a demurrer . If the objection was demurrable tbe statute did not cure it , because the statute only cured after judgment by default , as , after verdict , strictly speaking , the judge had no power to do this ; it could only be done by allowing tbe party to withdraw his plea a"d demur . Mr . Book i n said , tbat in Hart ' s case it did not appear tbat the Court had jurisdiction .

      Mr . Ehle Baid the Court had applied the statute expressly to it . It was clear tbat the Learned Judges dealt with the case as their Lordships bad done in bolding an objection good in arrest of judgment when it was presented to them at tbe trial , and tbe Judge's mind was clear upon the paint . The prisoner was allowed tbe benefit of it at tbe time , although it was not the moment when , according to law , he was entitled to it The opinion ef the Learned Judges in that case waa decidedly in bis favour that the margin would not help the prosecution . They could not apply the parish to the county in the margin without reference to it by the word "aforesaid ; " and if that could not bd done , the

      Court bad not jurisdiction , the balance of authorities , he contended , was strongly in his favour . The margin referred to tbe jurors who presented it , and not to the charge . > The cure given by the statute of the 7 th Geo . IV . did not apply to tbe present case . He submitted that the ; statute of the 6 th of Geo . IV ., enacting that the Jury ' might be taken from the body of the county and not from the hundred , did not advance bis friends ' argument ; it was prior to thu 7 th of Geo . IV . In respect to tbe allegation of place the want of perfect or proper venue would not be fatal provided it appeared on tbe face of tbe indictment that tbe Court bad jurisdiction .

      Mr . Justice Colbtudoe remarked , tbat the Solicitor-General had said the Court bad jurisdiction so loDg as the grand jury found the bill . Mr . Erle said , teat was one of the points . With respect to the margin , it was a condition precedent for the application of thb statute , that it sboild appear tbe Conrt bad jurisdiction over the offence , and the Solicitor General ' contended tbat that meant bnt the nature of the offence to which the commission applied under which the judges were sitting . Mr . Justice Colersdge—Supposing the grand jury of tbe county had found the bill ?

      Mr . ERt-E submitted tbat did not appear on the face of the indictment , the grand jury were not part of tbe Court ; Jthe words were , " where the Court should appear to have had jurisdiction over the offenee . " His friend imported into tbe indictment the finding of tbe grand jury , but the indictment must show an offence coming Vfithin tbe jurisdiction of tbe judges , under their commission . Tbe commission related to offences committed within a certain place , and of a certain character . In Lancashire it must be for oflfenees arising within the county cf Lancaster . Tbe jurisdiction of the judges over an offence was compounded of two qualities , the nature of tbe offence and where it took place . The particular commission under wnieh the judge sat was for county A , and he having the commission in bis breast was to say , " doea this offence arise within the local limits over which my jurisdiction extends ¥ ' That was the way he answered bis learned

      friend . - The general commission of oyer and terminer was not alone sufficient to show that tbe comi&ission bad jurisdietion . The Commission was confined to a given place , and it must appear in the indictment that the offence took place within the limits of tbat place . It must appear on the face ef tbe indictment that the Court bod jurisdiction . An imperfect allegation of place was sufficient if enough were alleged to give the judge cognizance of the offence . The finding of tbe Grand Jury did not in the smallest degree establish the locality of the offence . They might be mistaken in the county or parish where It occurred . Their Lbrdablps bad put tbe case of the jurisdiction of that Court But it had unlimited jurisdiction . An indictment might be preferred in that Court with a venue in the margin , ' England to wit . " He Would not , however , press tbat part of the argument on their Lordships , as be was not experienced in it .

      Mr . Justice Patteson—^ An information might be filed in this Court laying the venue anywhere ; but an indictment could not lie in this Court without laying the venue in Middlesex . Mr . Erle would not press this point He only urged this against tbe argument of tbe Solicitor-General , that the finding of tbe Grand Jury showed that tbe offence was within their limits . Enough ought to be alleged on the face of tbe indictment to show that the offence was within the jurisdiction . The fifth count was alleged to be bad unless the venue in the margin would cure the defect The only point for maintaining this count was , that the venue in the margin could be importeil into the body of the indictment . He would not trouble [ their Lordships further . He would submit that the fifth count was clearly bad ; and he would also submit that the fourth count couM not be supported .

      Mr . Dundas Baid , bis Learned Friend bad taken marly all tbe ground from under him , and be , therefore , would not trouble their Lordshipa at any great length . He would refer to a passage in Hawkins whioh had not been cited , taking up the argument of his Learned Friend that the finding of tbe grand jury did not establish the locality . < In tbe second book of Hawkins , c . 25 , 8 . 34 , " of indictment , within what place offences must arise" it was laid down that if it did not appear tbat the offence arose within tbe limits of the county from which the jury was returned , they had no jurisdiction over it He submitted to their Lordships on both counts , but clearly on the fifth count , that there was nothing in the body of the indictment laying the offencj within tbe jurisdiction of

      the grand jury , who had found a true bill . There waa no reference whatsoever to the venue in the margin , neltheriwas there any mode whereby they could import that which was in tbe margin into the count , unless they said that a marginal venue was sufficient without more . In a note to " Collins v . Goldamid , " 1 Bulstrode ' a Reports , 205 , it was held by the whole Court , tbat an indictment for a nuisance , without an allegation of tbe county or place , was bad , and the party was discharged . In " Hammond ' s Case , " Cro . Elia ., 761 , which was error to reverse a judgment given upon an indictment , the indictment was held to be ill , because no county was named in tbe body of tbe indictment , although a county was named in the margin of the record . In "The ; King v . Yarrington , " 2 Keeble ' s Reports , the indictment was quashed for not having a venue tin the body of it , although there was

      one in the margin . In " Shelly v . Wright , " 2 Comyn'a Reports , p . 562 , it was held that a county in the margin would supply the want of it in the declaration ; but it , wa > stated in an indictment " tbe omission of the county in the body is not helped by naming tbe ceuntv in the margin . " Since the statute of 7 Georg * IV . the case of Mi » ter Hart bad occurred , and be bad found another case , sine * that , referred to in tbe 3 rd volume ! of Burns' fustics by Doyle and Williams , p . 383 where in an indictment for bigamy the venue was laid in Middlesex ; and it was stated that the first marriage took place in the county of—! -f the second in the county jof —¦——— ; and at the conclusion it stated " chat the jnrors further say that the said E . was apprehended ; on the —— : — day of - ——— , " at leaving a blank for each place . After conviction tbe judges held unanimously that the indictment was bad , for it did not appear that a Middlesex Grand Jury bad any jurisdiction . ¦

      Untitled Article

      Mr . Justica Patteson .- What is the name of the An ^ a 9 j Mr . Dundas— "TheKing V . Frazet , "tried In 1833 . It is not yet reported . I , Mr . Justice Coleridge . —B "« it there waa good reason for that decision without supporting your position . The first marriage might be in one county , the second in another , and the apprehension id onother , and you could not tell tojwhicb to refer the venue in the margin . f Mr . Dundas—Where no county was named at all there waa nothing to go to but the venue in the margin , and be cited the case | as an authority for bis position . It certainly would seem ? bat where no venue whatever was laid in tbe body of tbe count , that the marginal ^

      venue would not nuffi ' pe . He would refer tbe court to the case of the " King v . Connop , ' * in 4 Adolphus und Ellis , p . 942 , which shewed that tbe Court looked to tbe venue in tbe bod *) of the count as the substantial venue . It would seem that tbe marginal note was never called into life except by reference to it It was treated as a thing which might be there , and if reference were made to it then it started into life ; but until then it was of no import He contended , therefore , tbat there was a necessity | for a venue to be stated in the count of an indictment , and this objection applied to both counts of the present indictment , and there being no venue in either the whole offence had not been truly stated on tbe record .

      Mr . Baines appeared on behalf of three of the defendants , and should certainly after the arguments of his learned friends have abstained from further troubling their Lordships , were not this a question of great importance to jhis clients . He contended as-to the 5 th count tbat this was not a case of an improper or . imperfect venue , but a case of no venue at all ; and therefore It was not [ within the statute of 7 th ana 8 : h Gaorge IV ., and could not be cured by it . Tbat statute applied enly to caBea where there -was a want of a proper , or an imperfect j venue , and net to cases where there was a total omission , It was by no means a sound argument that , as was urged by the Solicitor-General , if his construction of the statutes were not adopted

      they would bave no real meaning at all . Their Lordships were aware that in many cases it was found difficult , if not impossible , to eay what the o ject of the Legislature had been , or whether the terms they had employed were sufficient to carry It out . It was , bowever , by no means necessary to construe the statutes in the way proposed by ' the Solicitor-General , in order to avoid making them entirely a dead letter . The cases in tbe books showed that tbe ( statutes were designed to , and held to , cure defective or imperfect statements of venue , which would have been fatal in pleading on arrest of judgment but for the operation of the statute . Thus in 2 d Hawkins , } 85 . " it is unnecessary to aver a conclusion of law with time and place ; but if it be so ,

      and it be done improperly , the indictment is bad . As if D be struck in county A , and die in county B , and the indictment allege his murder to bave been in the former , it will be jvicious , for the act was completed in tbe latter . " That ! which was not of tbe essence of the offbnee and essential to be proved , need not be stated with time and Iplace , but if it were , it must be stated correctly . So in 2 Hale , p . 80 , tbe doctrine was laid down as it had been recognised in the conrt , in " Rex v . Wright , ' 1 , | Adolphus and Ellis . The want of " proper" venue wjas cured by the statutes . Since the passing of the 6 th George IV ., requiring as to criminal what the Act of Anne bad as to civil proceedings , that the jury Bhould come from the body of tbe county , tbe special venue need not be laid where the facts were of a transitory nature , but tbe necessity was not displaced of [ stating the venue for facts of a

      local nature , as in burglary and night poaching . A legitimate application of tbe statutes would be where an indictment merely averred tbat tbe prisoner broke and entered a certain bouse in the county of -, he ., without giving further description ( which would have been bad but for tbe statutes ); the reason being that the court would have jurisdiction to inquire into offences all through the county . These arguments and authorities he hoped ! would be sufficient to disprove tha Solicitor-General ' a construction of the statutes . Mr . Justice Patteson—Tbe Solicitor-General remarked upon the words of the aet He admitted that if the words Lad been ! " improper venue , " it might bave been more difficult to upply them to tbe case of utter absence of venue . But be said , tbe wordB " want of proper venue" implied as well the absence as tbe imperfection of a venue " , arguing that the want of any venue Was " the wantlof a proper venne . "

      Mr . Baines—Then wby have inserted the word " proper ? " It is on the change of language which the Legislature adopted when they came to speak of venue that I rely . They evidently use language more qualified and restricted , as ] to curing defects in venue tban in time . Their Lordships could not , tbe Learned Gentleman proceeded to argue , look at the " caption'' 1 Saundars , 250 b . Faulkner's case . By the indictment itself it mast appear that the Court had jurisdiction . Mr . Justice CoLERiDOB . —You assume tbat the venue in tbe margin and the caption are tbe

      same-Mr . Baines—Not exactly , my Lord . I contend that your Lordships cannot look at tbe caption ; whereas , tbe Solicitor-General called ik in aid He naid , ¦ ' it appeared from the caption and the margin .: ' Now it must appear from the indictment alone ; and how could it appear from the indictment alone , unless It appeared from the allegations in the body of the indictment ? The margin was nothing for that purpose . If there were references in the body to the marginal venue , aa " to the county aforesaid , * ' the two might be taken then certainly ipgather , otherwise tbe marginal venue was useless . Tbe allegations of venue were important as facts- that went to make up the offence . It was from these averments that tbe Court judged aa to its jurisdiction . So much the Learned Counsel said , as to the fifth count . Then as to the fourth connt In

      Stock's case , be contended that if it were good law , it would only be so from some eirc > tn ) Btar . ces distinguishing tbe case of receiving stolen goods from all others ^ and making the authority sui generis ; for certainly in all other authorities it was laid down that averments of material and tr » vei sable facts must be with , time and place . In 'j'East's Pleas of the Crown , " the report was meagre , and no persons were given for the authority . He thought the case might bs explained in this way . When tbe venue was averred in an indictment for receiving stolen goods , it referred to the stealing ; but yet larceny was of a continuing nature , and was going os in { every county through which tbe goods were carried till they reached the hands of the receiver . So that the [ venue would be alleged of every county through which- they passed .

      Lord Den ham .- —I could easily put cases in which that could not be so ; W , if the goods were sent by an innocent messenger , who could not be said to bave been committing or continuing a larceny . Mr . Baines —But the sending by that innocent agent wonld be a continuance of tbe larceny by tbe principal , the messenge * being only the metvos employed by the principal , who would be indicted for the larceny in any county where the -goods came . Mr . Justice Patteson—You can hardly maintain that proposition . Suppose the ' thief delivered thea to a person in some county without aay instructions at all , and that the receiver took them into another county and gave them to a third party who knew all tbe circumstances , and toolj them to conceal them ; would there be any continuing larceny in the county were the last receiver took them ? It could not be alleged in an indictment against tbiis person that he received tbe goods from the thief , but that he received them , " knowing them to have been stolen . "

      Mr . Ba ikes . —I think my proposition borne out by the authorities . Lord Den man . —A steals geods in Middlesex and then delivers them to B without any instructions . B takes them into Surrey aud gives them to C for concealment ; C taking them with a knowledge of the circumstance , would be indicted for the guilty receiving in Surrey , but not A for tbe larceny ? Mr . Baines was still of opinion tbat his view was sustained by the cases . However , be continued , the case of Stock , if it bould not be explained on that ground , was not , he ' contended , good law ; as it Was impossible , then to maintain , it against all tbe authorities which were opposed to it . Mr .. Justice Coleridge . —Mr . Starkie , in his book , frames his precedents ] according to the authority of tbe case , and states it to be tbe constant practice . Lord Denman intimated h » bad also understood the practice to be so .

      Mr . Justice CoLEiupGE . —Supposing all you say true , the venue must , nevertheless , be proved , if material I Mr . Baines—No doubt tbe point applies to pleading and evidence . j Mr . Justice Coleridge—But you seem to apply your explanation to the one , and nob to tha other . Mr . Baines continued to contend , tbat the weight of authority was to the effect tbat every material fact must be stated as occurring in a particular villa in tbe county { for this be cited a case in the 4 th of " Maule and Selwyn , " and thej book of Mr . Starkie on criminal pleading ) . There could be no question of the law on this point , —that all material facts must be averred with certainty of time andjplace . That the fact in question in the indictment Delete the Court was material was

      evident from the proof of it having occupied three days . Undoubtedly , then , the indictment Was bad for not even showing the fact to hove occurred within the realm . The indictment excluded not the supposition that the facts occurred out of the kingdom . The Learned Consel here cited an authority in Hale ' s Summary , page 203 ( cited in " Rexv . Burdett" ); " regularly the Grand Jury can inquire into nothing but what arises within the body of the county . " What was there , he argued , to take this case out of the common-law rule ? It was not till 6 Geo . IV . that British subjects could be tried for murder out of the realm . By a statute of Hen * VIII . the power was [ first given to try offences committed out of this country . The direct interposition of

      the Legislature was then necessary to give the Grand Jules jurisdiction over offences not committed within tha realm . There was no statutable provision in the present case ; therefore the indictment should have excluded the supposition of tbe act * having occurred out of this country . He apprehended the Grand Jury had no possible business to' meddle with this indictment , and it did not appear that the Grand Jury bad jurisdiction . ' He submitted that there was sufficient objection to the indictment for the want of venue , aud that it was not cured by the statute . 1 Mr . Sergeant Muhphi would not address himself , in the first place , to the case of "Tbe King v . Stock . ' In looking over the foundation of indictments against receivers by statute , it was laid down in aU tbe books

      Untitled Article

      tbat the only case to < Mch a P 7 c ° ald be indicted aa a receiver was tbat Of lu * T P " ° n who harboured the thief in stealing , or the infl « l <» . r r ! n case of murder . He would ask their Lordships v ? bf * uC they conl < i conceive in a ease at common law , whertHI * . . ' na <* a person indicted for harbouring a thief is felony , w elrLo * dships would consider the indictment sufficfeftfe i 7 * ch did not state either time or place when and where ttw 1 felony was committed by A B : but the person was In . dieted for harbouring A B ? Would that be sufficient as a statement in the indictment ? He apprehended it would be utterly insufficient so to state it ; but with regard to all the rules of pleading , that indictment of receiver at common law should state time and place in order to give certainty and that the person put upon his trial

      should have notice of tbe wheieand the when as to tbe ' offence with which be stood charged . With regard to tbe case ot " Tbe King v . Stock , " it was a decision to which no great weight should be attached , aud t hey must therefore look at tbe object the statute was in . tended to introduce . Formerly it was impossible that the accessory could be found guilty until the princi pal was convicted . Tbat had caused many annoyances , and it was necessary tbat uome positive enactment should be made which should have for its object the defining of a new offence , and do away with the necessity « f set . ting out upon the record the principal offence , as it would have bees where the principal Was indicted ; but the substantive offence must be stated , that he received the goods knowing them to have been stolen . "The

      King v . Stock" Btood as a single case , and gave r , < j analogy to another case . It . was material that any issuable fact should be stated . His Learned Friend had cited the case of " The King v . Holland , " to show that every material allegation was stated , and tbat w& » valuable from the observations of Lord Kenyon , in the 5 th T . B , 620 ; that was an indictment against rebels and all the material facts were stated to have occurred at Carlisle , althongh they were tried in Surrey ; and that was a peculiar case , where there was a dispensation of the statement of venue . The indietment 8 et out tbe peculiar circumstances , and recited in the cap . tion the Act ot Parliament which gave the authority . If they were to take tbe venue in the margin , by ana . logy it was plain the only venue there stated was Surrey

      and . therefore , if ever there was a case of dispensation of the statement of venne , tbat was ihe case , because the recital of the Act of Parliament gave notice of the circumstances under which the authority was given ; but Lord Ksnyon said , notwithstanding that , it was necessary to state every essential issuable fact with its proper venue . That was a recognition that , notwithstanding tbe venue in the margin , that venue could not dispense with tbe proper allegations in the body of the indictment Was this an issuable fact ? He apprehended it clearly was so . If they looked at the na . tare of tbe plea of not guilty they would see it was a cumslative traverse of everything necessary to be proved to found the legal guilt of the party . Here there were two incidents which the traverse

      disputed—one a tnmultuously assembling ; one aiding and abetting . If there were no tumultuous assem . blings there would be no aiding and abetting ; and there might be tumultuous asBembliogs and ne aiding and abetting , and the defendants would be not guilty It was not a mere inducement , it was the very gist of the cafce . In a case of murder the indictment ought to state all tbe principal averments . If it wore an ordinary case of principal and accessory , there was no precedent whioh shewed tbat the introductory material averment of the principal ' s guilt was net stated with the proper venue . If they chose not to consider this with the single intention that all

      parties were principals as misdemeanants , the venue ought to havo been stated . Tbe wording of this inducement was consistent with the parties being out of tbe realm ; there was no single word which pointed to tbe necessity that tbe parties should be otherwise tban out of the realm . The matter was not to be left in doubt or uncertainty , the party ought to know upon looking at the indictment tbe offence with which he was charged . There was nothing to show that an offence had been committed within tbe jurisdiction of tbe Court If this bad token place in France , or ont of tbe jurisdiction of tbe Court , it was not an offence indictable in this country . Wss there any thing to show this state of facts existed in this country ?

      Mr . Justice Williams asked if it was admitted , tbat if it . distinctly appeared to bave been done in this country it was an offence T ( We did not catch the answer . ) Mr . Serjeant Murphy said the Solicitor-General had said there was no venue to the fifth count , unless tbe act of Parliament interposed and ended it . ' Now it was plain that the caption in an indictment was no part of the indictment itself . If it should appear by the indictment or information that tbe Court had jurisdiction , the statute would cure the defect . The fifth count independent of being bad on other grounds , as not showing there ever bad been a continuance of any act done , was bad , as not stating where any of those circumstances took place . Could it be therefore said , that the act of Parliament cured it ? This was no improper

      or imperfect venue : was no venne the wast of a proper venue ? It could not be said that the want of venue was the same as an imperfect venue , nor eoald it be said that it was an imperfect venue . He , therefore , submitted to the Court , that upon tbe fifth eottnt , whatever question there might be on the fourth , there could be no answer to this objection , which waa fatal , and the statute could not by possibility cure it There was a difference between the total omission of time and aa absence of a proper statement of place . They must consider that unless jurisdietion was shewn , the place could not be inferred . The Court might have jurisdiction , though there Was an omission of the time ; but it could not have jurisdiction without some place being shown . Be had to contend that were tbe indictment was found bad no reference to place ; but that tbe judge mutt hove that fact brought to his knowledge .

      Mr . Bodkin , on the same side , had not believed that the law officers of the Crown would hare endeavoured to sustain a count where no venue at all was stated . Tbe course of argument taken by the Attorney-General had been repudiated by tbe Solicitor-General ; the former hod argned that the jurisdiction was referable to the character of the ofSence , while tbe latter bad given up . the count except it was cured by the statute . The werds of the statute were peculiar , and might drive tbe Court , as in many other instances , to eonvict the Legislature of an absurdity . It Was not enough that there was no venue , but something must appear to ' show that it was within tbe jurisdiction of tbe Conrt . If two counties were mentioned , the word " aforesaid "

      might have reference to either . There was an absence of venue in the fourth count . It was also so loosely worded , that it was difiicuit to understand what the precise offince charged was . It was difficult to tay from it whether these persona were aiding and abetting at a distance from where the offence was committed , or tbat they were personally present taking part in the act . Stotf a was an accessorial charge ; this was a substantial charge , and there was a material distinction between the two cases . In a case arising out of " Tbe Qoeen v . Caspar and otheis , " the gold dust robbery , the indictment was held bad for want of particularity , ia alleging that the prisoners incited another to commit an offdnce , without , on the face of the indictment , naming the person or averring that he was unknown .

      . Mr . Atherton then proceeded to address the Conrt on the part of some of the other defendants , and went over a similar ground of argument , citing the case of " Mettor against Walker , " 3 William ' s Sannders , 5 b ., and the notes thereto , to show the two counts of the indictment bad under the rales of criminal pleading , for not setting out a venue in the body of the indictment , where tbe venae was local and material , so tbat it could not ba known where the venire facias was to be awarded . The Court intimated that they would consider of their judgment .

      Untitled Article

      We have the highest authority to elate , that if any of the Chelsea , or Kilmainham pensioners connect themselves with the repeal movement , directly or indirectly , their names will instantly be struck off ; he list . —Belfast Chronicle .

      wilful MuiiDEB . —On Friday , May the ldib , a lad named Isaac Kettleband , aged ten years , son of William Kettleband , of Wysall , labourer , was missing . On the Tuesday bis body was found ina horsepond , on the farm of Mr . Heury Hebb , situate neat to a barn and a stable , at which the deceased and his father usually worked . An inquest was held on the body the same evening before Mr . C . SwanDt coroner , and no evidence to the opntvary ami adduced , a verdict of " Accidentally drowned" was returned . On the same evening and daring the next day , the village gossips , in talking the affair over , began to think it possible that foul play might hare been used , as the father of the deceased was known to be a violent and passionate man , and it was

      notorious that he had always mo 3 t thamefully and brutally maltreated the boy . Mr . Browne , of Wymeswold , surgeon , was sent for to examine the body , and he at once discovered that the neck was dislocated , and gave it as his most decided opinion thai it was broken before the body reached the water . The pond in which deceased was found is about 10 ^ yards by 4 , and 1 . J or two yards deep in some parts ; it is , except at one corner , surrounded by a deal fence , about four feet high , and is so situate that the boy could not possibly have broken his neck in falling in accidentally . Tnese circumstances , connected with the anxiety the father exhibited to have the corpse interred before any surgical examination took place , excited such suspicions that the deceased had been unfairly " done to death , " that a , second inquest was deemed indispensable . Accordingly a notice was sent to the coroner , and Kettleband was taken into

      custody . Mr . Swann consequently commenced a most rigid inquiry on Tnureday , the 25 tb , which waa at the close of the day adjourned until Monday last , the 29 th . Mr . Hebb , ia whose employ the deceased and his father were , has three farms—one at each of the villages of Wygall , Key worth , and Stanton—and there is no-residence on the farm at Wyaall . The farm buildings are situate about a mile from the village , and stand the width of a very large field from the road ; they consist of a barn and stables at rjght angles of each other , and the pond spoken of is not more than twenty-five or thirty yards distant . On Thursday a Jury sat at the Piough lav , Wysall , before whom Mr . Swann commenced his inquiry , and a verdict was returned of " Wilful murder against some person or persons uukaovm . " Tne prisoner was then discharged out of custody . —Nattinghm Journal .

      Untitled Article

      % W 21 THE NORTHERN STAR . -. . _ - __ ..

  • Citation
    • Northern Star (1837-1852), June 10, 1843, page 6, in the Nineteenth-Century Serials Edition (2008; 2018) ncse-os.kdl.kcl.ac.uk/periodicals/ns/issues/vm2-ncseproduct485/page/6/