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York's case.

trial. For he constantly told the same story in substance, commonly adding, that the devil put him upon committing the fact. Upon this evidence, with some other circumstances tending to corroborate the confession, he was convicted. Upon this report of the chief justice, the judges, having taken time to consider of it, unanimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That supposing the boy to have been guilty of the fact, there were so

many circumstances stated in the report which were undoubtedly (a) 1 Hale, 630. tokens of what Ld. Ch. J. Hale somewhere (a) called a mischievous

discretion, that he was certainly a proper object for capital punishment, and ought to suffer. For it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. There are many crimes of the most heinous nature, such as, in the present case, the murder of young children, poisoning parents or masters, burning houses and the like, which children are very capable of committing, and which they may in some circumstances be under strong temptations to commitand, therefore, though the taking away the life of a boy of ten years old may savour of cruelty, yet as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing this boy merely on account of his age, will probably have a quite contrary tendency, - in justice to the public, the law ought to take its course, unless there remaineth any doubt touching his guilt. In this general principle all the judges concurred. But two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner; suggesting, that it might possibly appear on further inquiry that the boy had taken this matter upon himself, at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice. Accordingly, the chief justice did grant one or two more reprieves; and desired the justice who took the boy's examination, and also some other persons in whose prudence he could confide, to make the strictest inquiry they could into the affair, and make report to him. At length he, receiving no further light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last : but before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state. And at the summer assizes, 1757, he had the benefit of H. M.'s pardon, upon condition of his entering immediately into the sea

service. York's case, Foster, 70. Under seven. But within seven years of age, there can be no guilt what

soever of any capital offence; the infant may be chastised by his parents or tutors, but cannot be capitally punished, because he cannot be guilty; and if he be indicted for such an offence as is in its nature capital, he must be acquitted. 1 Hale,

19, 20, Committing a An infant under fourteen is presumed by law unable to commit

a rape, and therefore, it seems, cannot be guilty of it; and though in other felonies malitia supplet ætatem in some cases, yet it seems as to this fact the law presumes him impotent, as well as wanting

discretion. 1 Hale, 630. Forcible entry An infant may be guilty of forcible entry, in respect of personal

rape.

actual violence. i Haw. c. 64. $35. And the justices may fine him therefore; but yet it shall be good discretion in the justices Imprisonment of the peace to forbear the imprisonment of such infant. Dalt. c. 126.

Because it is said, that he shall not be subject to corporal pun. Corporal ishment, by force of the general words of any statute wherein he punishment. is not expressly named. | Haw. c. 64. $35.

But this must be understood, where the corporal punishment is, as it were, collateral to the offence, and not the direct intention of the proceeding against the infant. 1 Russ. 6.

Where a fact is made treason or felony by statute, it extends as Treason or well to infants, if above fourteen years, as to others.

felony. An infant under the age of discretion cannot be an approver, Cannot be an because he cannot take the oath requisite in that case. 2 Haw. approver. c.24. $ 5.

Judgment. (Stats. 3 G. 4. c. 114.—4 G. 4. c. 48.—7 G. 4. c. 64. — 7 & 8 G. 4.

c. 28.-9 G. 4. c. 31.-1 W. 4. c. 70.] OF judgments, some are fixed and stated, as in cases of treason, Judgments cer

felony, præmunire, and misprision; the particular forms of tain. which may be seen under their respective titles.

Others are discretionary and variable, according to the different Judgments circumstances of each case: thus, for crimes of an infamous variable. nature, such as petit larceny, perjury, or forgery at common law, gross cheats, conspiracy, not requiring a villanous judgment, keeping a bawdy-house, bribing witnesses to stifle their evidence, and other offences of the like nature, it seems to be in a great measure left to the prudence of the court to inflict such corporal punishment, and also such fine, and binding to the good behaviour for a certain time, as shall seem most proper and adequate to the offence. 2 Haw. c. 48. § 14.

The court may assess a fine, but cannot award any corporal Judgmen in punishment against a defendant, unless he be actually present in the offender's court. 2 Haw. c. 48.5 17.

Per Holt C. J. Judgment cannot be given against any man in Sentence for his absence for a corporal punishment; there is no such precedent. corporal punA ca. sa. pro fine is common, but there never yet was a writ to

ishment cannot

be passed on take a man and put him in the pillory. 1 Salk. 400. S. C. 1 Ld.

a person in his Raym. 267. See also 1 Ld. Raym. 47.

absence. In a case where defendants had confessed themselves guilty of Acc. an information charging them with a misdemeanor, and where a motion was made to dispense with their personal appearance to receive sentence, the court refused it, saying, it ought to be denied in every case, where it was probable or possible that the punishment would be corporal. R. v. Hann and another, 3 Burr, 1786.

An indictment for an assault, which had been found at the Aliter as to a quarter sessions, was removed by certiorari into B. R., and tried on capias pro fine, the civil side at the Worcester assizes 1831. After conviction, Patteson J. sentenced the defendants (under 1 W. 4. c. 70.), who

absence,

Judgment of a joint fine.

were not present, to pay a fine each of 101., and to be imprisoned till they were paid, and directed a warrant to issue to take defendants in execution of the sentence. R. v. Woodward and another, 4 C. & P. 540. n.

Where there are several defendants, a joint award of one fine against them all is erroneous; for it ought to be several against each defendant; otherwise, one who hath paid his proportionable part might be continued in prison till all the others have also paid theirs, which would be in effect to punish him for the offence of another. 2 Haw. c. 48. § 18.

A fine is under the power of the court during the term in which it is set, and may be mitigated as shall be thought proper: but after the term, it admits of no alteration. 2 Haw. c. 48.

Judgment in mitigation of fine.

§ 20.

term.

Power of alter

While the quarter sessions last it is in the power of the court ing orders or to alter their orders or judgments, the sessions as well as the term judgments dur- being considered only one day in law; and so it is of judgments ing the same at the Old Bailey during the same session. Per Holt C. J., sessions, as

2 Salk. 606. acc. 2 Bac. Abr. 160. in the same

In two cases where doubts arose whether the sentences passed

on prisoners who had been convicted of murder were or were not So during the

erroneous, the judges, who differed in opinion on this point, all same assizes.

agreed that, if there was error, it might have been corrected by bringing the prisoners up again, and passing the proper judgment, as the sentence may be corrected or altered at any time during

the assizes. R. v. Jane Fletcher, C. C. R. 58. R. v. Wyatt, 16. 230. Judgment A judgment contrary to the verdict is void. against the By many statutes peculiar punishments are appointed for verdict. several offences, as stocks, imprisonment, whipping, and the like; Judgment by and in all these cases, no room is left for the justices' discretion, particular for they ought to give judgment and to inflict the punishment

in all the circumstances thereof, as such statutes do direct. Dalt.

statutes.

C. 188.

Statute enact- Where by 22 G. 3. 6. 58. (now repealed) persons convicted of reing punishment ceiving stolen goods were made liable to the punishment of “ fine, in the alterna- imprisonment, or whipping," it was held by the judges on ca. res. tive,

that the word or could not be read and; consequently that both imprisonment and whipping could not be inflicted. R. v. Howell

and another, C. C. R. 253. Larceny, trans

Under 39 G. 3. c. 85. (now repealed) persons convicted of emportation not bezzling were made “liable to be transported for any term not exceeding four- exceeding fourteen years, in the discretion of the court before teen years.

whom the offender shall be convicted;" and on ca. res. the question for the opinion of the judges was, whether a less sentence than transportation for seven years could be passed. The judges were unanimous that the act having expressly made the offence larceny, the court might inflict the like punishment as in the case

of a common larceny. R. v. Hudson, C. C. R. 285. In perjury, pro

Prisoner was convicted of perjury at the Chester assizes, and cedendo award- sentenced to seven years transportation ; and a writ of error having ed, there having been brought thereon, it appeared that the judgment was erronebeen no regular

ous in form, it being entered “it is ordered," whereas it should judgment.

have been “it is considered.” The court awarded a procedendo, ordering the court below to give judgment, and meantime admitted the prisoner to bail. R. v. Kenworthy, 1 B. & C. 711.

But where a court of quarter sessions had sentenced a prisoner But where to transportation for fourteen years, in a case where they had there is an eronly power to sentence him for seven, on writ of error being roneous judg.

ment, it will be brought for this cause, the court of B. R. reversed the judgment

reversed. as erroneous. R. v. Ellis, 5 B. & C. 395.

Upon a conviction in a court below, the defendants having been Mandamus to found guilty of a nuisance at the quarter sessions, the court of pass sentence B. R. granted a mandamus, commanding them to pass sentence after conviction on the indictment. R. v. Justices of West Riding of Yorkshire, in a court be7 T. R. 467.

. The question arose on the return to the mandamus, which stated, Wrong judgthat the court below had fined each of the defendants 6d., and it ment to be corwas objected that the judgment was imperfect, because it did not rected by writ

of error only. proceed to order the nuisance to be abated; the court of K. B. thought this was unnecessary, as the indictment did not charge a continuance of the nuisance; but that at all events, if the judgment below was erroneous, the only mode of correcting it was by writ of error, and referred to 2 Str. 686. S. C. 7 T.R. 467.

By stat. 4 G. 4. c. 48., intituled “ An act for enabling courts 4 G. 4. c. 48. to abstain from pronouncing sentence of death in certain capital cases," after reciting $ 1., that whereas it is expedient that in all cases of felony not within the benefit of clergy, except murder, the court before which the offender or offenders shall be convicted shall be authorized to abstain from pronouncing judgment of death, whenever such court shall be of opinion that, under the particular circumstances of any case, the offender or offenders is or are a fit and proper subject or fit and proper subjects to be recommended for the royal mercy: It is enacted, that from and after the pass. Court may ing of this act, whenever any person shall be convicted of any abstain from felony, except murder, and shall by law be excluded the benetit pronouncing of clergy in respect thereof, and the court before which such of

death on perfender shall be convicted shall be of opinion that, under the parti- sons convicted cular circumstances of the case, such offender is a fit and proper of any capital subject to be recommended for the royal mercy, it shall and may felonies, be lawful for such court, if it shall think fit so to do, to direct except murder. the proper officer then being present in court to require and ask, whereupon such officer shall require and ask, if such offender hath or knoweth any thing to say, why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall and may, and is hereby authorised to abstain from pronouncing judgment of death upon such offender; and instead of pronouncing such judgment, to order the Record of same to be entered of record, and thereupon such proper officer judgment to as aforesaid shall and may and is hereby authorised to enter judg- have the same

etfect as if proment of death on record against such offender, in the usual and

nounced. accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender, by the court before which such offender shall have been convicted.

2. A record of every such judgment, so entered as aforesaid, shall have the like effect to all intents and purposes, and be followed by all the same consequences, as if such judgment had actually been pronounced in open court, and the offender had been reprieved by the court.

sentence of

Act not to § 3. Nothing herein contained shall extend to that part of the extend to Scot- U. K. called Scotland. land. 3 G. 4. c. 114.

By stat. 3 G. 4. c. 114., intituled “ An act to provide for the Persons con

more effectual punishment of certain offences, by imprisonment victed of the with hard labour;" ý 1. after reciting stat. 53 G. 3. c. 162., and offences herein that it is expedient that the provisions of the said act should be mentioned, may extended to certain aggravated misdemeanors and offences below be sentenced to bard labour.

the degree of felony: it is enacted, that from and after the passing
of this act, whenever any person shall be convicted of any of the
offences hereafter specified and set forth ; that is to say,
; (1.) Any assault with intent to commit felony. (Repealed, but

see infra.)
(2.) Any attempt to commit felony.
(3.) Any riot.
(4.) Any misdemeanor for having received stolen goods, knowing

them to have been stolen. (5.) Any assault upon a peace officer, or upon an officer of the

customs or excise, or upon any other officer of the revenue, in the due discharge and execution of his or their respective duty or duties, or upon any person or persons acting in aid of any such officer or officers in the due discharge and execution of his or their respective duty or duties. (Repealed, but see

infra.) (6.) Any assault committed in pursuance of any conspiracy to raise

the rate of wages. (Repealed, but see 9 G. 4. c. 3+. 25.

infra.) 17.) Being an utterer of counterfeit money, knowing the same to be

counterfeit. (8.) Knowingly and designedly obtaining money, goods, wares,

or merchandizes, bills, bonds, or other securities for money,

by false pretences, with intent to cheat any person of the (9.) Keeping a common gaming-house, a common barody-house, or

a common ill-governed and disorderly house. (10.) Wilful and corrupt perjury, or of subornation of perjury. (11.) Having entered any open or inclosed ground with intent there

illegally to destroy, take, or kill game or rabbits, or with inteni to aid, abet, and assist any person or persons illegally to destroy, take, or kill game or rabbits, and having been there

found at night armed with any offensive weapon. " In each and every of the above cases, and whenever any person shall be convicted of any or either of the aforesaid offences, it shall and may be lawful for the court before which any shall be convicted, or which by law is authorised to pass sentence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment with hard labour, for any term not exceeding the term for which such court may now imprison for such offences, either in addition to, or in lieu of any other punishment which may be inflicted on any such offenders by any law in force before the passing of this act; and every such offender shall thereupon suffer such sentence, in such place and for such time as aforesaid, as such court shall think fit to

direct." 9G, 4. c. 31. By 9 G. 4. c. 31. § 1., so much of 3 G. 4. c. 114. as relates to any

of the assaults therein mentioned, is repealed.

same.

offender

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