REG. v. BLABY. 1894. Practice onviction"Convicted" Release on recognisances Offences against Coinage Act, 1861-24 & 25 Vict. c. 99, ss. 9, 12. Mr. Burnie, on the part of the prisoner, submitted there was no case to go to the jury. In order to constitute a conviction there must be both verdict and judgment. Here there was no judgment, only an order empowering the prisoner to be released on entering into a recognisance to come up for judgment. By 28 & 29 Vict. c. 18, s. 6 (a), the mode of proving a previous Evidenceconviction is set out, and provides that the certificate shall Previous contain the substance and effect only (omitting the formal part) of the indictment and conviction. It is the universal practice for the clerks of arraigns and justices of the peace to set out in such certificates both verdicts and judgments. Why, if the Why, if the verdict of the jury amounts to a conviction? The universal practice of such experienced Crown lawyers is entitled, like the practice of conveyancers, to the highest consideration. An interlocutory judgment is quite unknown to the criminal law; final judgment is the only judgment known to the law, that is a judgment followed by sentence. Reg. v. Miles (24 Q. B. Div. p. 423), although at first sight it may seem to be an authority to the contrary, when examined, strongly supports this view, because in this case judgment was entered ipsissima verba of the Summary Jurisdiction Act. If this case had been dealt with in 1888 under the protection of the First Offenders Act, and had followed the words of that statute, there would have been a judgment. This case was not so dealt with, but the prisoner was released on recognisance under the common law powers from time immemorial vested in a judge of oyer and terminer and general gaol delivery. It is plainly laid down in Hawkins' Pleas of the Crown, p. 33, and Hale's Pleas of the Crown, p. 684, that there can be no conviction without judgment, and this would seem to follow from the passage in Chitty on Criminal Law (1816), vol. 1, p. 725 and p. 736. The point was fully considered in 1844 by the full Court of Common Pleas in Burgess v. Boetefeur and Brown (13 L. J. 122, M. C.), and the Court were unanimous that there can be no conviction without judgment. Mr. Partridge, for the Crown.-Burgess v. Boetefeur and Brown has been distinguished in a recent case tried before Sir James Stephen, viz., Jephson v. Barker (3 Times L. Rep. 40), in 1890, and referred to in Stroud's Judicial Dictionary. All through the Coinage Act the word "conviction" is plainly used in the sense of verdict. I entertained very great doubt on the point, but thought it safer to follow Sir James Stephen and rule that there was a case for the consideration of the jury, and leave this, Court to determine authoritatively as to what constitutes a "conviction." It is evident Sir James Stephen was not himself and counterfeit, against the statute, &c., and against the peace, &c., and the said Ellen Edwards was thereupon ordered to find one surety in the sum of twenty pounds for her appearance to hear judgment when called upon.-Dated the 30th day of Jan., 1894.-H. K. AVORY, Clerk of the said court." (a) This should no doubt have been 24 & 25 Vict. c. 99, s. 37. REG. v. BLABY. 1894. Practice free from doubt, for he stayed execution to enable the point to be reconsidered in the Court of Appeal, but the case was not proceeded with. The point is from a practical point of view one of great importance, as the practice of releasing convicted persons on simple recognisance is a very general and growing one, and the protection of the First Offenders Act is of very limited scope. scope. The jury found the prisoner was the same person named in the certificate, and I respited judgment, and released "Convicted' the prisoner on bail. The question for the court is whether upon recognisances the facts before set out, the prisoner could be properly convicted -Offences of felony. Evidence Previous conviction - Release on against Coinage Act, 1861-24 & 25 Vict. c. 99, ss. 9, 12. By sect. 9 of 24 & 25 Vict. c. 49, it is enacted that: Whosoever shall tender, utter, or put off any false or counterfeit coin resembling, or apparently intended to resemble, or pass for any of the Queen's current gold or silver coin, knowing the same to be false and counterfeit, shall .. be guilty of a misdemeanour. By sect. 12 of the same Act, it is enacted that: Whosoever, having been convicted, either before or after the passing of this Act, of any such misdemeanour, or crime and offence, as in any of the last three preceeding sections mentioned, or of any felony or high crime and offence against this or any former Act relating to the coin, shall afterwards commit any of the misdemeanours or crimes and offences in any of the said sections mentioned, shall be guilty of felony. And by sect. 37, it is provided that: Where any person shall have been convicted of any offence against this Act, or any former Act relating to the coin, and shall afterwards be indicted for any offence against this Act committed subsequent to such conviction, it shall be sufficient in any such indictment, after charging such subsequent offence, to state the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence, purporting to be signed by the clerk of the court or other officer having or purporting to have the custody of the records of the court where the offender was first committed, or by the deputy of such clerk or officer, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the previous conviction, without proof of the signature or official character or authority of the person appearing to have signed the same, or his custody or right to the custody of the records of the court. Burnie, on behalf of the prisoner, submitted first, that the word "conviction" strictly means the judgment of the Court, and not the verdict of the jury, though it might in ordinary language be so considered, and that this being a penal statute the word was to be construed in its strict legal sense. Secondly, that even assuming the word to mean the verdict of the jury, it was necessary for the prosecution to prove what the final judgment of the court was, for non constat that it was in accordance with the verdict, or that such verdict was not set aside. All that the prosecution had done was to prove an order, not a judgment of the court, and there was a great difference between an order and the judgment of the court. In Burgess v. Boetefeur and Brown (8 Scott's New Rep. 194; 7 M. & G. 481; 13 L. J. 122, M. C.) in an action under 25 Geo. 2, c. 36, s. 5, by an inhabitant who had given information as to the keeping of a REG. V. BLABY. 1894. Practice- Previous conviction"Convicted" -Release on Offences Coinage Act, 1861-24 & 25 Vict. c. 99, against 88. 9, 12. disorderly house, in consequence of which the keeper of the house was indicted and pleaded guilty, but was not brought up for judgment until some time afterwards, it was held that there had been no conviction until sentence was pronounced. In the course of his judgment Tindai, C. J. said, "Undoubtedly 'conviction' is verbum equivocum; it is used sometimes to denote the verdict of the jury, and at other times in its strict legal sense to denote the judgment of the Court." This being so, it was incumbent upon the Court to place the construction upon the word which was most favourable to the prisoner. In Reg. v. Ackroyd (1 C. & R. 158) recognisances Cresswell, J. held that a certificate of a previous conviction under 7 & 8 Geo. 4, c. 28, s. 11, must state that judgment was given. Here there was no judgment shown by the certificate, merely an order that the prisoner should come up for judgment when called upon. It therefore showed, so far as it showed anything, that no judgment had ever been given. Again, in Reg. v. Stonnell (1 Čox C. C. 142), Patteson, J. held that a certificate of a previous conviction for felony was not admissible unless it set forth not only the fact of the prisoner's conviction, but also the judgment of the Court thereon. So, too, in Hale's Pleas of the Crown, vol. 1, p. 685, is the following: "By conviction, I conceive, is intended not barely a conviction by verdict, where no judgment is given, but it must be a conviction by judgment." The form of conviction runs, "It was thereupon considered by the Court," and where the entry upon a record was merely "it was ordered" the Court held that there had been no judgment: (Rex v. Kenworthy, 1 B. & C. 711.) In Jephson v. Barker and another (3 Times L. Rep. 40) the Court held that where the keeper of a disorderly house had merely been bound over to come up for judgment if called upon, there had been sufficient conviction to satisfy 25 Geo. 2, c. 36, s. 5; but there, as pointed out by Stephen, J., the judgment was final except in certain events, whereas here the certificate showed that there had been no final judgment, the order being to come up for judgment when called upon. He also cited Reg. v. Miles (24 Q. B. Div. 423), as showing what a final judgment was. Sutton and Partridge, for the prosecution, were not called upon. : HAWKINS, J. delivered the judgment of the Court as follows:The Lord Chief Justice and my learned brothers have asked me to deliver judgment in this case on their behalf as well as my own, and I have no difficulty in expressing my opinion that this conviction should be affirmed; and affirmed on the very simple ground that the two sects. 9 and 12 of the Coinage Offences Act, 1861, show clearly what construction should be placed on the word "conviction" in sect. 18. It is unnecessary therefore to decide any of the questions which have been so ably argued by Mr. Burnie. Now sect. 9 of the Act enacts that whosoever shall put off any false or counterfeit coin shall be guilty of a misdemeanour, and being convicted thereof, that is to say, being REG. บ. BLABY. 1894. PracticeEvidence Previous "Convicted" ss. 9, 12. found guilty of the misdemeanour, shall be liable to be imprisoned. The sentence was to follow the conviction. It is clear, therefore, that the intention of the Legislature in enacting this was that, if a person was found guilty of an offence within the section, the Legislature meant that to be treated as a conviction, and used the word "convicted" as meaning having been found guilty. In this case the prisoner was clearly found guilty, for, on looking at conviction the certificate, it shows that. It is true that there is no mention -Release on in it of an actual judgment or sentence, but that she had been recognisances found guilty the certificate established beyond all question. Now -Offences the prisoner is indicted under sect. 12 of the Coinage Offences against Act, 1861, which creates this new offence, and enacts that whosoCoinage Act, 1861-24 & 25 ever having been convicted of any such misdemeanour, or crime Vict. c. 99, and offence, as in any of the last three preceding sections mentioned, that is to say, sects. 9, 10, and 11, shall afterwards commit any of the misdemeanours, or crimes and offences, in any of the said sections mentioned, shall be guilty of felony. The statute therefore makes that a felony which, had it been the first occasion upon which the prisoner had been convicted, would have been a misdemeanour. The prisoner having pleaded guilty to the charge, in order to prove the previous conviction the certificate was put in, and was admitted without objection. Now that certificate shows undoubtedly that the prisoner had been previously convicted. Such conviction was under sect. 9, and she pleaded guilty to having committed a similar offence to that of which she had been convicted under sect. 9. It therefore seems to us that she comes directly within the language of the 12th section, and is guilty of the felony of which it is stated in the case she has been convicted. It seems to me and to my learned brothers that the case is beyond all argument when you come to read sects. 9 and 12. The conviction must therefore be affirmed. Conviction affirmed. Solicitor for the prosecution, The Solicitor to the Treasury. Solicitor for the prisoner, T. O. Evans. QUEEN'S BENCH DIVISION. July 24 and 30, 1894. (Before MATHEW, J.) REID v. WILSON AND WARD. REID V. WILSON AND KING. (a) Penalties-Sunday observance-Lectures on entertaining subjects on Sundays-Nature of debates prohibited—" House opened or used for public entertainment or amusement"-Disorderly house-Liability of opener of meeting and licensee of houseLord's Day Observance Act, 1781 (21 Geo. 3. c. 49), ss. 1, 2. Sect. 1 of the Lord's Day Observance Act, 1781, enacts that, "any house, room, or other place which shall be opened or used for public entertainment or amusement on any part of the Lord's Day, and to which persons shall be admitted by the payment of money, shall be deemed a disorderly house or place," and penalties are therein imposed upon (amongst other persons) the "keeper" of the same, and upon the person managing and conducting such entertainment or amusement," and upon the person acting as "master of the ceremonies" of any such meeting, or as "chairman" of any meeting for public debate. In an action for penalties under this Act in respect of Sundayevening lectures on entertaining subjects to which the public were admitted on payment of small sums, but which were not given for the purposes of profit, the jury having found that the hall which was hired for the lectures was, on the occasion in question, a place open and used for public entertainment or amusement:" 66 Held, that a person who had taken the chair at the lecture, introduced the lecturer, and then had taken his place amongst the audience, was not liable to penalties under the Act, either as "master of the ceremonies," or as "manager or conductor" of the entertainment, or as "chairman" of a debate within the meaning of the section; also that a person to whom the licence for the use of the hall had been granted by the authorities, and who, on behalf of the owner, had sanctioned the letting of the hall, was not liable as "keeper" of such place. (b) F URTHER consideration by Mathew, J. in two actions tried before him with a special jury on the 28th day of June. (a) Reported by W. W. ORR. Esq., Barrister-at-Law. (b) The above decision was affirmed by the Court of Appeal, see post, and 71 L. T. Rep. 739; (1894) W. N. 211. |