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V. CHARLESWORTH,

practices at the election for the borough of Wakefield in 1861. 1859, was called as a witness for the prosecution. He The QUEEN refused to answer a certain material question put to him upon the ground that the certificate was not a sufficient protection. The learned Judge was of opinion that, by sect. 10, the certificate freed him from all prosecutions for any corrupt practice at the election, and therefore he was bound to answer the question. When the witness still refused to answer, the learned Judge adjudged him to be guilty of a contempt of the Court, and sentenced him to be imprisoned for that contempt for six calendar months, to pay a fine of 5001., and to be imprisoned until that fine was paid (a). The Solicitor General, who conducted the case for the Crown, then stated that it was impossible to proceed with the prosecution without the evidence of this witness, and asked the learned Judge to discharge the jury instead of directing a verdict of acquittal for want of evidence, and cited Newton's Case (6) and The King v. Stokes (c). For the defendant it was contended that the Judge had no discretionary power in the matter, and that, when a person was once placed on his trial, he had a right to be tried. The learned Judge, after consulting Keating J., said that the conclusion at which he had arrived was to discharge the jury ; that, if he had not the power to do so by law, the fact of the discharge, with the reason of

(a) A habeas corpus was subsequently moved for in the Court of Exchequer, see 6 H. & N. 717, and in the Court of Common Pleas, see 10 C. B. N. 8. 3., to discharge the witness from custody, and refused, on the ground that the Judges of assize are Judges of a superior Court, and have a jurisdiction to commit, which is not subject to be reviewed by the Court above. (6) 13 Q. B. 716.

(c) 6 C. & P. 151.

1861. it, would appear on the record; but that, if he had the The Quees power, he ought to exercise it where a witness had

wilfully tampered with the ends of justice. The jury were discharged accordingly.

In Trinity Term (May 30),

V. CHARLESWORTH.

Sir F. Kelly, on behalf of the defendant, moved for leave to file a plea in the nature of a plea puis darrein continuance, the plea of not guilty remaining on the record. The plea will raise the question whether the defendant, having been once put on his trial upon this information, can again be tried upon it. The discharge of the jury in this case was not a matter in the discretion of the Judge, and therefore it may be pleaded as a bar to the information. Unless this plea is allowed, the defendant must be exposed to the anxiety and expence of another trial before he will be able to raise the question by motion in arrest of judgment, or by bringing a writ of

The defendant cannot compel the Crown to make up the postea. [He cited Conway and Lynch v. The Queen (a), The Queen v. Newton (6) and The Queen v. Davison (c).] If the plea ought not to be allowed, the Attorney General can move to take it off the file.

error.

COCKBURN C. J. Where a defendant alleges that some matters have occurred since he pleaded which exempt him from further liability upon the charge made against him on the indictment or information, he has a right to plead puis darrein continuance. Upon this ground the application ought to be granted; and the

(a) 7 Irish Law Rep. 149.

() 3 C. d. Kir. 85, 87, 88. (©) 2 F. & F. 250.

1861.

Attorney General can, if he pleases, move to take the plea off the file, or demur to it.

The QUEEN

V. CHARLESWORTH.

WIGHTMAN and BLACKBURN JJ. concurred.

Application granted.

The plea was as follows:

“And now (that is to say) on the 22d of May in this same term, before our said lady the Queen at Westminster, cometh the said John Barff Charlesworth, by the said Charles Fiddey his attorney, and saith that the said Attorney General for our said lady the Queen ought not further to prosecute the above mentioned information against him the said J. B. Charlesworth, or to proceed to the trial of the issue above joined, because he says that heretofore (to wit) on the 7th day of March A. D. 1861, at York, in the county of York, at the Assizes then and there holden in and for the said county, before the Honorable Sir Hugh Hill, Knight, and the Honorable Sir Henry Singer Keating, Knight, Justices of our lady the Queen, duly assigned to take the Assizes in and for the said county, the jurors of the jury aforesaid being then and there called, did then and there come; thereupon [names of jurors] twelve of the jurors last aforesaid were then and there duly called, and did then and there answer to their names respectively, and were then and there duly sworn and empannelled to try the issue above knit and joined between our Sovereign lady the Queen and the said J. B. Charlesworth. And the jurors so sworn and empannelled were then and there duly charged with the said J. B. Charlesworth, who was then and there duly given in

V.

WORTH.

1861. charge to the last mentioned jurors so sworn and emThe QUEEN pannelled as last aforesaid. And Sir William Atherton, CHARLES

Knight, Her Majesty's Solicitor General, of counsel for and on behalf of our said lady the Queen, who then and there prosecuted for our said lady the Queen in that behalf, did then and there produce divers (to wit eight) witnesses for and on behalf of our said lady the Queen, who were then and there duly sworn, and then and there gave evidence to the said Court and the said jury so sworn and empannelled and charged with J. B. Charlesworth as aforesaid touching the said supposed misdemeanours above laid to his charge. And the said J. B. Charlesworth further says that, after the said jurors were so charged with the said J. B. Charlesworth, and during the trial of the said issue, José Louis Fernandes, one of the said witnesses for and on behalf of our said lady the Queen, refused to answer a certain question put to him by the counsel for and on behalf of our said lady the Queen, whereupon the said Sir Hugh Hill, one of the said Justices, having delivered his opinion that the said J. L. Fernandes was bound by law to answer the said question, and he still refusing to answer the same, the counsel for our said lady the Queen declined further to proceed with the trial of the said issue, and called upon the said Justice to discharge the said jurors from giving any verdict thereon, against which the said J. B. Charlesworth, by his counsel in that behalf, protested and objected, and requested the said Justice to proceed with the trial of the said issue, so that the jurors aforesaid might deliver their verdict thereon, which the said Justice refused to do, and thereupon the said Justice then and there, for the reason aforesaid, and for no other cause whateyer, with

465

v.

WORTI.

out the consent and against the will of the said J. B. 1861. Charlesworth, discharged the said jurors of the said J. B. The Queen Charlesworth, and from declaring or giving their verdict

CHARLES. on the said issue. And this the said J. B. Charlesworth is ready to verify, &c. Wherefore he prays judgment, and that he may be dismissed by the Court here of the premises in the said information mentioned, and be acquitted thereof, and go thereof without day, and that the same may not be further prosecuted against him the said J. B. Charlesworth," &c.

Notice was given to the Crown Office, the Solicitor of the Treasury and the Associate to produce the record of the proceedings at the trial.

The Solicitor General (June 6th) obtained a rule calling upon the defendant to shew cause why the above plea pleaded by the defendant in bar of further proceedings should not be taken off the file.

Sir F. Kelly, Bovill, Mellish, and Maule shewed cause (June 10th).— The plea that the jury had been discharged from giving a verdict is a plea in bar of further proceedings ; and the Crown ought either to have traversed the plea, or pleaded some other replication, or demurred to it; and then the question whether the plea was good might, if necessary, be taken to a Court of

It is competent to a defendant in a criminal prosecution to raise the question of the lawfulness of the discharge of the jury by a plea puis darrein continu

In Conway and Lynch v. The Queen (a), which was an indictment for felony, the jury at two assizes not

error.

ance.

(a) 7 Irish Law Rep. 149. See an abstract of the case in note to Newton's Case, 13 Q. B. 735.

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