prisoner. The first part of that section declared that all meetings of REG. v. HUNT. persons for the purpose of practising military exercises, without Unlawful lawful authority, were prohibited. The section then went on to DrillingIndictment. provide that all persons who attended such meetings for the purpose of "training and drilling any other person to the use of arms, or the practice of military exercise," &c. should be subjected to certain penalties. The first averment of the 1st count stated, that on the 25th of May there was "a certain unlawful assembly” of the prisoners and others at the parish of Horton, " for the purpose of then and there practising military exercise," without any lawful authority. The averment followed the words of the prohibitory part of the section of the statute, and sufficiently stated an offence prohibited by the statute. To commit the offence prohibited was therefore a contempt of the statute, and as such was indictable as a distinct offence: (1 Hawk. P. C. c. 22, s, 1.) In 2 Hawk. P. C. c. 25, s. 4, it was stated that "wherever a statute prohibits a matter of public grievance to the liberty and security of a subject, an offender against such statute is punishable by way Foster's arguof indictment for his contempt of the statute, unless such method ment for the of proceeding do manifestly appear to be excluded by it." The statute also constituted this offence a misdemeanor, and the averment sufficiently stated an attempt to commit the offence, resting not in bare intention. The attempt to commit a misdemeanor was itself a misdemeanor, and indictable as such: (Rex v. Higgins, 2 East, Rep. 21.) On this ground, also, the first averment of the count sufficiently stated a distinct and indictable offence: (1 Russ. by Grea. 48.) There were, however, express decisions on this point. In 2 Hale's P. C. fo. 171, it was stated, that "if an act does also contain a prohibitory clause, the offender may be indicted upon the prohibitory clause, notwithstanding the penalty." And Lord Mansfield, in giving judgment in the case of Rex v. Wright (1 Burr. 543), stated, "that where new created offences are only prohibited by the general prohibitory clause of an act of Parliament, an indictment will lie." And Mr. Justice Denison, in the same case, said, "an indictment will lie where there is a substantive prohibitory clause in an act of Parliament, though there be afterwards a particular provision, and a particular remedy given." In Rex v. Harris (4 T. R. 205), the same doctrine was held by Mr. Justice Ashurst, that "it was not necessary for a prosecutor to sue for the penalty, but he might proceed on the prohibitory clause, on the ground of its being a misdemeanor:" (1 Russ. 49.) The first averment of the count, for these reasons, the learned counsel contended, set out a complete offence, namely, a misdemeanor, for doing that which was prohibited by the statute. Then the second averment of the count contained another distinct charge, framed on succeeding portions of the same section of the statute, and charged the prisoner with "unlawfully attending the said unlawful meeting, for the purpose, then and there, of unlawfully training and drilling," &c., certain persons "to the practice of military exercise." This was a suffi Unlawful Drilling- REG. v. HUNT, cient allegation of the offence under the statute, and was, therefore, a second and distinct offence, charged within the same count, which was clearly bad at common law for duplicity: (R. v. Purchase, 1 C. & M. 620.) If it were contended that each averment of the count was a separate count of the indictment, he should then submit that each averment, taken separately, was bad. The first had no conclusion contra formam statuti, which in a new offence created by statute was a fatal fault: (Arch. Crim. Pleading, 56; 2 Hawk. P. C. c. 25, s. 116.) Then the second averment was bad for uncertainty, for no certain time or place was alleged, and the unlawful meeting was termed "the said unlawful meeting;" and, though time and place might be supplied by reference to previous averments of time and place, facts and circumstances on which the charge was founded could not be so introduced. The next objection he urged to the count was that there was no addition of the prisoner's "estate, degree, or mystery" after his name, as required by the Statute of Additions, which was not repealed; and though it was laid down in the books that this objection was usually taken by plea in abatement, yet there was no authority which ruled that it might not be raised on demurrer. Foster's argument for the prisoner. MAULE, J.-Is there any that it can? Foster was not aware of any decision on the point either way. Besides, irrespective of this being a fault under the Statute of Additions, it rendered the charge uncertain as to the identity of the prisoner. Lord Coke (2 Inst. 669), stated that "the end and purview of the Statute of Additions was that the person of the defendant should be so described by certain additions as one man might not be troubled for another." And, by the common law, a man "ought to be named by his Christian name and surname, and by the addition of his name of dignity:" (Co. 2nd Inst. 666.) In this case, how could the prisoner plead autrefois acquit or autrefois convict with certainty? There might be twenty other Henry Hunts in his parish, of different degree, estate, and mystery-as a knight, an esquire, a clerk, and an attorney. On this ground the count, he submitted, was bad; first, for the omission of the addition; and, secondly, because of the uncertainty. The next objection was that the 7th section of the 60th Geo. 3, c. 1, under which the charge was preferred, enacted, that proceedings under that statute must be commenced within six calendar months from the commission of the offence; (a) and, although each count in the indictment stated that the offence had been committed within six calendar months, yet there was no videlicit alleging a date for the commencement of the prosecution. This was an averment of a material fact; for, unless the prosecution was shown to have been commenced within six calendar months, the court had no jurisdiction to try the offence. The learned counsel contended that the count was bad for the omission (a) The following is the section:-"No person shall be prosecuted by virtue of this act for anything done or committed, &c. &c., unless such prosecution shall be commenced within six calendar months after the offence committed." Indictment. to state any time to this material fact. Hawkins, in his Pleas of REG. v. Hunt. the Crown (Vol. 2, c. 25, s. 77,) says, "it is laid down as an un- Unlawful doubted principle in all the books that treat of this matter, that Drillingno indictment whatsoever can be good without precisely showing a certain year and day of the material facts alleged in it." The commencement of the prosecution, also, must, because of the omission, be taken to be the finding of the indictment by the grand jury, the date of which, according to the caption of the indictment, would be the first day of the assize, or the 11th of December, whilst the offence in the indictment itself, was alleged to have been committed on the 25th of last May, more than six months before. Each count of the indictment was, therefore, in this respect, repugnant, and on the face of it showed no jurisdiction under the statute. In furtherance of this argument, also, the learned counsel referred to the terms of the recognizances of witnesses bound over to prosecute. They were bound over 6 to prosecute at the assizes;" that which they were bound to do was to be done "at the assizes," and what they were to do was to "prosecute" at the assizes. The finding of the inquisition by the grand jury must, therefore, be looked at as the commencement of the prosecution. For these reasons, he submitted, that the count was bad on demurrer, for duplicity, uncertainty, and repugnancy, and showed no jurisdiction to try the offence. The other counts were open to the same objections. MAULE, J. MAULE, J.-I am of opinion that the objections raised cannot Judgment of prevail. If several offences were charged, that was no reason why the indictment should be bad; and as to their being charged in one count, a count was of modern invention for convenience. The second part of the count had reference to the first, for the first part could not be taken to be expunged. The course of practice was to take advantage of an omission of "estate, degree, or mystery" by a plea of abatement, and the judge might then amend the indictment in that respect. If there were any authority to show that this was an objection which could be raised on demurrer, then, no doubt, it was a good objection; but he should not so hold in the absence of any such authority. Then, as to the prosecution not being commenced within six calendar months, there were two answers; all the steps taken before any constituted tribunal are steps in the prosecution. Suppose that were doubtful, there was yet a distinct averment that the offence had been committed within six calendar months before the commencement of the prosecution, and it was within the prescribed time from the taking of the first step. Then a recognizance was a continuing bond, like a replevin bond, which bound the witnesses to give evidence in the prosecution from the time it was entered into. The judgment must be for the Crown. Foster then asked his lordship if he would give judgment of respondeas ouster; it was within the discretion of the court so to do. His LORDSHIP said he should not in this case; it was a misdemeanor, and there were no merits on the facts. REG. v. METCALFE AND SLATER. NORTHERN CIRCUIT. YORKSHIRE WINTER ASSIZES, 1848. York, December. (Before Mr. Justice MAULE.) REG. v. METCALFE AND SLATER. Misnomer of juryman-Mistrial. If a juryman, on calling over the names of the panel, answer to a wrong name, and be sworn by the wrong name, the trial is a mistrial, for the prisoner has not had his opportunity of challenging the juryman mis named. JOHN OHN METCALFE and Robert Slater were indicted for a highway robbery, with violence on Thomas M'Donald, at Gevendale, on the 20th of August. Blanchard (with him Travis), for the prosecution; Overend Jury-Practice, defended Metcalfe. The other prisoner had no counsel. His LORDSHIP having summed up, the jury retired. On their return, their names being called over, no one answered to the name of "Jno. Dunn," whose name was on the panel as one of the jurors; and it appeared that a juryman, whose name was John Turner, had answered to the name of John Dunn, and been sworn in that name by some mistake. MAULE, J.-It is a most unfortunate thing. If any one objects, I shall consider the objection before the jury deliver their verdict. Overend objected to the proceedings on the part of Metcalfe. MAULE, J. (to the other prisoner).-Your attention was called to the name of John Turner in challenging instead of to the name of John Dunn. Do you object too? Prisoner Slater.-Yes. MAULE, J.-Do you wish this jury to be discharged, and that there should be a new trial? Overend.—I wish nothing, my lord. Blanchard. On the part of the prosecution, I am content to take the verdict. MAULE, J.-Ask the jury what their verdict is? Verdict, Guilty. It appeared that there was another indictment against the prisoners arising out of the same transaction, and his lordship ordered them to be tried on that indictment. (a) Reported by T. CAMPBELL FOSTER, Esq., Barrister-at-Law. CENTRAL CRIMINAL COURT. August 22, 1848. REG. v. SPRY AND DORE. (a) Murder-Practice-Order for inspection by prisoners. An application was made before trial on the part of the accused, that a REG. v. SPRY DORE. Practice. Clarkson applied on their behalf, previous to the trial, that Dr. Taylor might be permitted to inspect the stomach of the deceased and its contents, which were at present in the keeping of a police Murderinspector. He considered it absolutely essential to the interests of the accused that this should be done, in order that they might be prepared at the trial with evidence, which nothing but a minute examination could furnish. THE RECORDER.-This is a very unusual application, and one that I am not quite sure the court has jurisdiction to entertain; but as it appears to be made in furtherance of the interests of justice, I think I may take upon myself to make the order. The examination, however, should take place in the presence of the officer who has custody of the stomach, as well as in that of the medical gentleman who examined it on the part of the prosecution. The expense must be borne by the prisoners, and I think the coroner should have notice of the time and place of the examination. I have the less difficulty in granting this application, because the judge would no doubt at the trial stop the case until such examination had been made. The following order was then drawn up: to wit. Central Criminal Court, At the General Sessions of Oyer and Form of order. VOL. III. (a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law. |