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1861.

The QUEEN

v. CHARLESWORTH,

other particulars.] The objection is that the Court has no power to put the defendant upon his trial a second time. [Cockburn C. J. We must ascertain the effect of this plea on the plea of not guilty, otherwise there may be double pleading, which is not allowable. If the facts are put on the record by way of suggestion they are traversable. Crompton J. The Court will not quash an indictment unless it is perfectly clear that the indictment is insufficient, but leaves it on the record, so that the objection to it may be taken in arrest of judgment. And a plea that the defendant ought to be acquitted is practically a matter in arrest of judgment.] Suppose a plea that the jury gave a verdict of acquittal, and thereupon the Judge directed that the jury should be discharged. Or suppose an issue as to error in fact, there would be a venire to try that issue, in order to inform the conscience of the Court, and to enable it to determine whether it would send the case down for trial.

The Solicitor General, Overend, Monk, Cleasby and Welsby, in support of the rule, were not called upon.

COCKBURN C. J. I am of opinion that the rule ought to be made absolute. This plea cannot be allowed to remain on the file: as the record now stands, it is open to the objection of shewing what amounts to a double plea; and it is laid down by authority that in an indictment for a misdemeanour there may not be double pleas. The proper mode of raising the question whether the defendant may be put upon his trial again upon this information will be, by the defendant taking any objection which he is entitled to by law, when the facts are entered on the record. The Solicitor General makes no

1861.

The QUEEN

CHARLES-
WORTH,

objection to adopt the facts as stated in the plea, with the addition of some particulars. When the facts appear upon the record, there will be a further objection to the plea that it states the same facts as are already stated on the record. Therefore, this being a matter of discretion with the Court, I am of opinion that we ought not to allow this plea.

Wightman J. I am of the same opinion, upon the ground that if there shall be an entry on the record of the facts as stated in this plea, it will be inconvenient, if not improper, that the same matter should appear twice on the record. Whatever may be the mode of taking advantage of the discharge of the jury, the defendant will not be prejudiced by putting the matter on the record, except in this, that he may be put to the trouble and expense of another trial. I do not know how that may be : certain I am that there is no instance in which there has been such a plea except Conway and Lynch v. The Queen (a), and The Queen v. Davison (6); in which latter case it does not appear whether the prisoner

upon the same or another indictment.

was tried

CROMPTON J. We must consider this application as we should do an application to put this plea on the record ; because the plea was put on the record by an application ex parte. It is clear that it cannot be allowed without the plea of not guilty being withdrawn. This is not matter of plea, but matter of error. It is an objection to what has occurred at the trial, as when there is a wrong entry on the record as to the jury, or when the jury have given an imperfect verdict : in those (a) 7 Irish Law Rep. 149.

(6) 2 F. & F. 250.

1861.

cases the

proper
course
is to get the facts entered upon

the record ; and when the defendant is brought up for judgment then is the time for him to take objection. Therefore I agree that the plea ought to expunged.

The QUEEN

V. CHARLESWORTH.

BLACKBURN J. I am of the same opinion. It is sufficient to say that, while the plea of not guilty stands on the record, the pleading this plea is pleading double, and therefore it ought to be expunged. The true state of things as they occurred at the trial ought to be entered on the record; and I think no advantage can be taken of that entry until the plea of not guilty has been disposed of.

Rule absolute.

Sir F. Kelly (June 11th) applied to the Court to order that a statement of the facts should be entered on the record immediately.

The following entry on the record was accordingly made: “On which day, before our lady the Queen, at Westminster, come as well the said Attorney General of our lady the Queen as the said J. B. Charlesworth by his attorney aforesaid. And the Justices of our lady the Queen, of Assize, before whom, &c., have sent here their record before them had in these words, to wit,

Afterwards, at the day and place within contained before the Honorable Sir Hugh Hill, Knight, one of the Justices of our Lady the Queen, before the Queen herself, and the Honorable Sir Henry Singer Keating, one of the Justices of our lady the Queen, of the Bench of Justices of our Lady the Queen, assigned to take the Assizes in and for the county of York, come as well the said Attorney General of our Lady the Queen as the said J. B. Charles

6

WORTH.

1861. worth by his attorney aforesaid. And the jurors of the The Queen jury, whereof mention is within made, being called likeCHARLES

wise, come, who to say the truth of the matters within
contained were elected, tried and sworn. And after-
wards, at the Assizes aforesaid, in the county aforesaid,
the said jury, so sworn as aforesaid, are then and there
duly charged with the said J. B. Charlesworth, and he
the said J. B. Charlesworth is then and there duly given
in charge to the said jurors so sworn as aforesaid, and
thereupon public proclamation is made there in Court
for our said Lady the Queen, that if there be any one
who will inform the aforesaid Justices of Assize, the
Queen's Attorney General, the Queen's Serjeant at Law,
or the jurors of the jury aforesaid concerning the mat-
ters within contained, he should come forth and be
heard. Whereupon Sir William Atherton, Knight, Solici-
tor General, offereth himself on behalf of our said Lady
the Queen to do this. Whereupon the Court here pro-
ceedeth to the taking of the inquest aforesaid by the
jurors aforesaid, now here appearing for the purpose
aforesaid, and during the taking of the inquest aforesaid
José Louis Fernandes, a witness produced before the said
jurors for and behalf of our said Lady the Queen, the
said J. L. Fernandes then being a material and neces-
sary witness on behalf of our said Lady the Queen, wholly
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 is bound by law to answer the said question,
and he the said J. L. Fernandes still refusing to answer
the same, the said Sir Hugh Hill adjudges that the said
J. L. Fernandes is by reason thereof guilty of a con-

1861.

The QUEEN

CHARLES-
WORTH.

tempt of Court here. And thereupon the counsel for our said Lady the Queen decline to proceed further with the taking of the inquest aforesaid, and call 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 objects and protests, and requires the said Justice to proceed with the taking of the said inquest, so that the jurors aforesaid may deliver their verdict thereon, which the said Justice refuses to do; and thereupon the said Justice then and there, for the reasons aforesaid, and for no other cause whatever, and without the consent and against the will of the said J. B. Charlesworth, and of his said counsel, orders that the said jurors shall be, and the jurors by the Justice aforesaid, from giving any verdict of and upon the premises are, discharged. Therefore the jury aforesaid are further put in respite before our Lady the Queen, at Westminster, until, &c.

was

Sir F. Kelly (June 12th) obtained a rule, of which notice was given to the Solicitor of the Treasury, by which, "upon reading the record in this prosecution,” it

“ ordered that cause be shewn instanter (a) why judgment should not be entered for the defendant, that he be dismissed and discharged of and from the premises in the information in this prosecution specified and charged upon him, and that he depart without day in that behalf; and why the award of jury process and all

(a) June 12th being the last day of Trinity Term, the rule was made returnable instanter, in order that it might be a matter “pending in the Court,” and as such be disposed of at the Sittings in Banc after Term, avoiding the question whether the Court had power to make the rule returnable at those sittings by consent. VOL. I.

B. & s.

2 K

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