Gambar halaman
PDF
ePub

A party was indicted under the first-men- the last-mentioned inquiry, the said W. tioned act for perjury committed before a Burnby appeared and was examined, &c., Surveyor General of Customs, and it was and took his corporal oath, &c., the said lastnot averred in the indictment, that the Com- mentioned oath being then and there admimissioners had given directions for its being nistered to the said W. Burnby, by the said. preferred, but it was negatived by affidavit W. R. W, so being such Surveyor General that any

such directions had been given ;-the as aforesaid, and having lawful and compeCourt, nevertheless, refused to interfere, tent power and authority to administer the at the instance of the defendant, either by said last-mentioned oath, and contained quashing the indictment, or by staying the similar assignments of perjury. proceedings.

At the Sittings at Guildhall, after Trinity

term, before the jury were sworn, it was The indictment stated, in the first count, objected, that though the statute 3 & 4 that one S. P, before &c., was a person em- Will. 4. c. 51. s. 29. (1) gave the Surveyor ployed in her Majesty's Customs, and had General power to administer an oath, and been and was charged by and at the instance made persons taking a false oath guilty of of the Commissioners of her Majesty's Cus- perjury; yet that the statute 3 & 4 Will. 4. toms, (amongst other things,) with having in c. 53. s. 112. (2) made it necessary that his capacity as baggage officer, at Freshwater, in the year 1840, knowingly and in viola

(1) Which enacts, " That upon examination and tion of the trust confided in him, passed

inquiries made by any Surveyor General of Customs under its real value a wardrobe belonging

or any Inspector General of the Customs, for ascere to W. Burnby, landing waiter, the said

taining the truth of facts relative to the Customs, charge being a charge relative to and con

or the conduct of officers or persons employed therecerning the Customs; and that a certain

in, and upon the like examinations and inquiries examination and inquiry was in due manner

made by the collector or comptroller of any out-port instituted, taken, and made before W. R. W,

in the United Kingdom, or of any port in the Isle one of the Surveyors General of her Ma

of Man, or made by any person or persons in any jesty's Customs, touching and concerning

of the British possessions abroad, appointed by the the said charge, and touching and concerning

Commissioners of his Majesty's Customs, to make the conduct of the said S. P; and that upon

such examinations and inquiries, any person exa: such examination, one William Burnby was

mined before him or them as a witness, shall deliver produced, and did appear as a witness his testimony on oath, to be administered by such touching and concerning the matters of the of the surveyors general, or such of the inspectors said inquiry, and was examined as a witness,

general, or such collector and comptroller, or such and was duly sworn, &c., before the said person or persons as shall examine him, and who R. P. W, he, the said R. P. W, so being are hereby authorized to administer such oath ; and such Surveyor General, as aforesaid, having if such person shall be convicted of making a false lawful and competent power and authority

oath, touching any of the facts so testified on oath, to administer the said oath to the said Wil- or of giving false evidence on his examination on liam Burnby.-[The indictment then as- oath, before any of the Surveyors General or Insigned perjury in the usual manner, on cer- spectors General of the Customs, or such collector tain evidence given by Burnby, as to the or comptroller, or such person or persons in convalue of the wardrobe.]

formity to the directions of this act, every such perThe second count alleged, that an inquiry son so convicted as aforesaid, shall be deemed guilty was instituted before the said W. R. W, of perjury, and shall be liable to the pains and touching and concerning the conduct of S. P, penalties to wbich persons are liable for wilful and as an officer and person employed in her corrupt perjury." Majesty's Customs, upon certain matters (2) Which enacts, " That no indictment shall be and charges relative to the Customs before preferred, or suit commenced, for the recovery then complained, and brought against him, of any penalty or forfeiture, under this or any other the said J. P, by and on behalf of the act relating to the Customs or Excise, (except in the Honourable Commissioners of her Majesty's cases of persons detained and carried before one or Customs, and for ascertaining the truth of more Justices, in pursuance of this act,) unless such the facts in relation thereto, and that upon suit shall be commenced in the name of bis Majesty's

either the proceedings should be in the name Sir F. Pollock ( Attorney General), Theof the Attorney General or the consent of siger, J. Jervis, and F. Pollock, contrà. the Commissioners of Customs should have The rule is drawn up in the alternative, been obtained previously to instituting it. either to quash or to stay proceedings. If - The record having been withdrawn, - it is clear that the consent of the Commis

The Attorney General in this term ob- sioners has not been given, then the protained a rule nisi on behalf of the defendant, ceedings can lead to no result, and the Court for quashing the indictment, on the ground will stay them. The case comes within the that it did not appear that it had been pre- letter of the 112th section of 3 & 4 Will. 4. ferred with the sanction of the Commissioners

c. 53.

It is said, that this is not an indictof Customs, and also on the affidavit of the ment for a penalty or forfeiture under the act; assistant secretary of the Commissioners, but that section must be read so as to apply that in his belief no order for the prosecution to all indictments under the act, and as had been made by them.

if a stop were after the word “

preferred," Cockburn, Montagu Chambers, and Poul- and another after “forfeiture," the words den shewed cause. First, the Court will not, "penalty" and "forfeiture" referring only at the instance of the defendant, quash an to the word “suit." That must obviously indictment for matter not appearing on the be the intention of the act, as penalties and face of it. No case can be found in which forfeitures are not generally recoverable by this has been done. In The King v. Belton indictment, and under this particular act (3), Holt, C.J. refused to quash an indict- (section 75), the mode of recovering them is ment for pulling down fences, and observed, by action or information. “ That the defendant might as well move to [WIGHTMAN, J. referred to section 53, by quash a declaration without pleading to it." which persons making signals to smuggling And in another case, referred to in the re- vessels are liable to a fine of 100l., on inport, the same Chief Justice said, “We never dictment or information.] quash indictments for forgery, perjury, &c.” Even in that case, the indictment would So The King v. Johnson (4), Com. Dig. not be for the penalty, but for the offence. * Indictment,' (H). Secondly, the 112th Then the consent of the Commissioners section of 3 & 4 Will. 4. c. 53, does not ap- should be averred in the indictment, or, at ply to this case, but only to proceedings for all events, proved at the trial. In this case, penalties and forfeitures. Lastly, the assent it is clear, that it could not be proved, as of the Commissioners need not be alleged, they gave no such consent. nor would such an allegation be travers- (WIGHTMAN, J.—The 112th section emable.

braces both Customs and Excise, which is

not the case with section 75.] Attorney General, or in the name of the Lord Ad- The Court will interfere to prevent colvocate of Scotland, or unless such indictment shall

lusion; and this prosecution is, no doubt, be preferred, under the directions of the Commis

defended by the Commissioners. sioners of his Majesty's Customs or Excise, or un- [COLERIDGE, J. referred to section 116, less such suit shall be commenced in the name of by which it is enacted, that the averment some officer of Customs or Excise, under the direc- that the Commissioners have directed protion of the said Commissioners respectively." ceedings to be instituted shall be sufficient,

Section 113. enacts, “That if any prosecution without proof of the fact, unless the defenwhatever shall be commenced for the recovery of dant shall prove the contrary.] any fine, penalty, or forfeiture incurred under this That had not before been adverted to, or any other act relating to the Customs or Excise, it but it would go to shew the necessity of the shall be lawful for His Majesty's Attorney General, averment. if he is satisfied that such fine, penalty, or forfeiture was incurred without any intention of fraud, or that LORD Denman, C.J.-I think that there it is inexpedient to proceed in the said prosecution, are insurmountable difficulties against makto stop all further proceedings by entering a nolle ing this rule absolute. In the first place, prosequi, or otherwise."

I am not by any means sure that the gene(3) i Salk. 372.

ral words in the 112th section of 3 & 4 Will. (4) I Wils. 325.

4. c. 53. apply to a case of this description.

[ocr errors]

Where a party has committed perjury before committed under such circumstances. Why the Surveyor General, a power to indict is then should the Court interfere, when by given by the earlier act, and this is sought the very argument, it is conceded, that to be controuled by the terms of a subse- if the powers given by the act are abused, quent act. My opinion is, that the words of the Commissioners might apply to the the latter section do not apply to indictments Attorney General to stay the proceedfor perjury, but to offences against the Cus- ings? I think that this Court should not toms and Excise laws. But, again, sup- interfere. posing that they do apply, still I doubt whether it would be essential that it should COLERIDGE, J. This is an indictment appear on the face of the indictment that the for perjury. Without going into the partiCommissioners directed the indictment to be cular acts of parliament, thus much must be preferred. If it were essential that it should so admitted, that the Court will not interfere appear, the omission would be a ground for to stay proceedings, so long as there is a pararresting the judgment. Then, as to staying ticle of doubt as to the propriety of so the proceedings, the same difficulties again doing. Now, is not this a case of doubt ? recur, and we should be deciding a matter It is contended, that the case is within the which ought, I think, never to be dealt 112th section of the latter act, 3 & 4 Will. 4. with in this summary way.

Then there is c. 53. Upon that point I am inclined to some degree of discretion to be exercised in agree with the Attorney General ; but I feel a matter of this kind; and I am not pre- great doubt on the second question, namely, pared to say that if the act applied to the whether there is any necessity that the ascase, that I should be prepared, as a mat

sent of the Commissioners should appear by ter of discretion, to grant the application. averment. It is important to remark that No conspiracy or collusion is suggested. If no injustice can be done by our refusal to a case of that kind were made out, it might interfere. If the assent of the Commissioners be well to interfere, but even in that case is by law a condition precedent, then the the Attorney General would have the power party indicted must have some way of of entering a nolle prosequi. It has been availing himself of the omission to get such remarked, that the Attorney General ought consent, without the interposition of the to be loth to interpose. I agree; but if Court. At all events, if the law has put that be so, does not the remark apply with the power of interfering in the hands of the tenfold force to the application to this Attorney General, there is no necessity for Court ? We are bound to see that justice our interference, is done. I indeed granted the rule with some reluctance, and have no hesitation in WIGHTMAN, J.-The offence here charged saying, that hardly any case could be laid might not only relate to the Customs, but before me, on affidavit, sufficient to induce might most materially affect the rights of the Court to exercise powers which it third persons. I can conceive cases where appears the legislature intended to lodge the power of interference might be most in the hands of the Attorney General. material, even where the Excise or Customs The defendant then, if he is in the right, alone was concerned; but it may be so in should make that appear in such a course all cases where the rights of the public are of proceeding as may bring him within concerned. The arguments used in supthe act. The rule must be discharged. port of the rule would apply equally to a

case of forgery under sect. 27, and it might WILLIAMS, J. - Assuming that the de- be that such forgery would be most prefendant requires and deserves protection, is judicial to the interest of third parties. Can it to be had at the hands of the Court? It we hold that an indictment under that secis said that the perjury here was committed tion might be immediately stopped on sumunder peculiar circumstances, and before a mary application ? party who, but for the act, would have had no power to administer an oath : that

Rule discharged, without costs. may be true, yet it does not follow that signal and malignant perjury might not be

NOR AND OTHERS.

1843. THE QUEEN V. FEARGUS O'con- 1st of August in the year aforesaid, and on June 7. S

divers other days and times, between that

day and the 1st of October in the year aforeIndictment-Venue.

said, at the parish aforesaid, in the county A count in an indictment for misde- aforesaid, the said defendants, &c., together meanour, with the venue Lancashirein

with divers other evil-disposed persons to the margin, stating that certain unlawful the jurors aforesaid as yet unknown, did assemblies were held by evil-disposed persons unlawfully aid, abet, assist, comfort, supat divers places,and that the defendants, port, and encourage the said evil-dis"at the parish aforesaid, in the county afore- posed persons in this count first mentioned, said,unlawfully aided and abetted the said to continue and persist in the said unlawful evil-disposed persons :—Held good on motion assemblings, threats, intimidations, and vioin arrest of judgment, the " want of a proper lence, the said impeding and stopping of the or perfect venue" (no place being stated labour employed in the said trades, manuwhere the unlawful assemblies were holden) factures, and businesses, with intent thereby being cured by the 7 Geo. 4. c. 64. s. 20. to cause terror and alarm in the minds of

A count, stating that the defendants, toge- the peaceable subjects of this realm, and by ther with other evil-disposed persons, &c., means of such terror and alarm violently unlawfully did endeavour to excite Her and unlawfully to cause and procure certain Majesty's subjects to disaffection, 8-c., no place great changes to be made in the constitution being stated, -Held bad on motion in arrest of of this realm, as by law established, against judgment, there being no words of reference the peace of our said Lady the Queen, her to the renue in the margin, and the defect crown and dignity. not being cured by the said statute.

Fifth count. And the jurors aforesaid,

upon their oath aforesaid, do further present, Misdemeanour. The defendants were that the defendants, together with divers tried, before Rolfe, B. at the Liverpool Sum- other evil-disposed persons, to the jurors mer Assizes, 1843, on the following two aforesaid as yet unknown, afterwards, to counts (being the fourth and fifth) of an in- wit, on the 1st day of August in the year dictment preferred against them. All the aforesaid, and on divers other days between defendants were convicted on the fifth count; that day and the 1st of October in the year on the fourth, Feargus O'Connor and some aforesaid, unlawfully did endeavour to exothers were acquitted, Macdowall and the cite Her Majesty's liege subjects to disaffecremainder convicted.

tion and hatred of her laws, and unlawfully Fourth count. Lancashire to wit. And did endeavour to persuade and encourage the jurors aforesaid, upon their oath afore- the said liege subjects to unite, confederate, said, do further present, that heretofore, to and agree to leave their several and respective wit, on the 1st of August in the year

afore- employments, and to produce a cessation of said, and on divers other days and times labour throughout a large portion of this between that day and the 1st of October in realm, with intent and in order by so doing the year aforesaid, and at divers places, to bring about and produce a change in the divers evil-disposed persons unlawfully and laws and constitution of this realm, and tumultuously assembled together, and by against the peace of our said Lady the Queen, violence, threats, and intimidation to divers her crown and dignity. other persons, being then peaceable subjects Upon being brought up to receive the of this realm, forced the said last-mentioned judgment of the Court, in Easter term subjects to leave their occupation and em- (May 4), a motion in arrest of judgment ployments, and thereby impeded and stopped was made on behalf of the several defenthe labour employed in the lawful and dants who had been convicted upon the peaceable carrying on by divers large num- above counts, bybers of the subjects of this realm of certain Dundas, Murphy, Serj., Bodkin, and trades, manufactures, and businesses, and Atherton.—They contended, both with rethereby caused great confusion, terror, and gard to the fourth and fifth counts, that they alarm in the minds of the peaceable subjects were bad in law, as no special venue was of this realm; and that afterwards, on the stated in the body of those counts, and that NEW SERIES, XIII.-MAG, CAS.

F

a statement of time and place was necessary stealing the goods; it is sufficient if they be to every material fact, in order to shew juris- alleged to the fact of the receiving. But, at diction both to find and try the offence. all events, the defect, if any, is cured by the They contended, also, that these defects 7 Geo. 4. c. 64. s. 20, which provides that were not cured by verdict under the 7 no judgment for felony or misdemeanour Geo. 4. c. 64. s. 20. The following autho- shall be arrested “ for want of a proper or rities were referred to: -Com. Dig. 'Indict- perfect venue, where the Court shall appear, ment,' G, 2, The King v. Hart(1), The by the indictment, to have had jurisdiction King v. Hollond (2), The Queen v. Peck (3), over the offence.” As to the fifth count, the The Queen v. Rowed (4), The King v. objection is, that no venue at all is stated : Haynes (5), and The King v. Mathews (6). but the venue is apparent from the margin; Several other objections were also taken to and although there are no words of reference the fourth count, the principal of which expressly connecting the material facts with were, that there was no sufficient descrip- it, yet this, again, is only the want of a tion of the nature of the acts of “aiding and proper or perfect” venue; and inasmuch abetting;" that it was not stated that the as it appears, by the venue stated in the offences, which the defendants were there margin, that the Court had jurisdiction over charged with aiding and abetting, were the offence, it is cured by the same statute. committed within the jurisdiction of the If not, it is impossible to assign to the proCourt; that the divers evil-disposed per- vision of the statute any definite meaning at sons mentioned in the first part of the same all. The King v. Hart is no authority count, were not described by name, nor as to the contrary, for the question now is, “to the jurors unknown;" and that it was whether such defect can be cured after uncertain whether it charged the defendants verdict. as inciting others to the commission of an [PATTESON, J.—That does not appear a offence, or with participation in an offence. substantial distinction between the cases.]

Rule nisi. Since the 4 Anne, c. 36. s. 6, it has be

come sufficient to lay a county for a venue On May 26, The Attorney General (Sir -Ware v. Boydell (7), and The King v. F. Pollock), The Solicitor General ( Sir W. Burdett (8); and in civil cases, at all events, W. Follett), Wortley, Sir G. Lewin, Wad- it is clear that the venue in the margin indington, J. Hildyard, and F. Pollock, shewed dicates the county where the act is done : cause.—As to the fourth count, the venue is the mere want of words of reference to that correctly stated, because the unlawful assem- venue may, therefore, be holpen by the stablages, which the defendants are charged with tute as an “imperfect” venue.

The Queen aiding and abetting, might have taken place v. Mitchell (9) is not applicable; a wrong anywhere. The material part of the charge, jury had been summoned in that caseto which time and place must be attached, Skinner v. Gunton (10), Tyson v. Paske is the aiding and abetting. The defendants

The defendants (11), and Mellor v. Barber (12). In Duncan might have "aided and abetted” within the v. Passenger (13), the word “there" was jurisdiction of the Court, in the county of held, on special demurrer, to import a referLancaster, an offence of tumultuous assem- ence to the county in the margin. The 6 bling, with the intent laid in the indictment, Geo. 4. c. 51. s. 13. having rendered the which was actually committed out of Lan- coming of jurors from particular hundreds cashire. In East, P.C. 780, is said to unnecessary, the allegation of county in the have been “expressly decided” in Stott's margin can have no meaning, unless it be case, that an indictment for receiving need considered as an “imperfect” venue. When not allege time and place as to the fact of

(7) 3 Mau. & Selw. 148. (1) 6 Car. & Pay. 123.

(8) 4 B. & Ald. 95. (2) 5 Term Rep. 620.

(9) 2 Gale & Dav. 274; s. c. 11 Law J. Rep. (3) 9 Ad. & El. 686 ; s.c. 8 Law J. Rep. (n.s.) (n.s.) M.C. 55. M.C. 22.

(10) 1 Saund. 228, c. (4) 2 Gale & Dav. 518; s.c. 11 Law J. Rep. (11) 2 Lord Raym. 1213. (n.s.) M.C. 74.

(12) 3 Term Rep. 387. (5) 4 Mau. & Selw. 214.

(13) 8 Bing. 355 ; s. c. 1 Law J. Rep. (n.s.) (6) 5 Term Rep. 162.

C.P. 104.

« SebelumnyaLanjutkan »