REG. v. HAMP AND Cockburn submitted that the evidence also failed with respect to the first set of counts. There was clearly no intention in the mind of Mr. Probert to obstruct the course of justice. The question is not whether that was or was not the effect of the conspiracy, or whether the conspiracy led to that result, but the question is what Conspiracy was the intent of the parties? 1852. Evidence. LORD CAMPBELL, C.J.-If the necessary effect of the agreement was to defeat the ends of justice, that must be taken to be the object. Cockburn submitted that the animus must be taken into consideration. The jury must be satisfied that the parties had that intent at the time. What were the circumstances? The defendants were acting under the belief that they could not convict Broome in consequence of Hamp's contradictory statements, and that he was in this dilemma, that he was himself liable to an indictment for perjury. The object therefore was, not to defeat the ends of justice, but to protect Hamp, whose recognizances on the one hand would be forfeited if he did not appear to prosecute, and he be deprived of every shilling, or else if the prosecution was followed, he was open to a prosecution for perjury. Skinner and Hawkins addressed the jury on behalf of the two other defendants. LORD CAMPBELL, C.J. in summing up said, the prosecution was one of the most important that could come before the jury, for it was of the highest moment that the stream of justice should not be impeded, but be allowed to flow undisturbed. It sometimes happened that witnesses for a prosecution were bought off, and the ends of justice defeated; and when that was clearly established, the jury were bound to find a verdict of guilty. In this case the accusation was in substance that there being a charge against three persons, Staden, James, and Broome, for defrauding William Hamp, the defendants entered into a conspiracy to prevent Hamp from giving evidence on that charge. The first count alleges that Charles Staden, John James, and John Broome, were charged with obtaining by cheating and false pretences 3007. from William Hamp, and were committed to take their trials at the next assizes for that offence, and that Hamp was bound over to prosecute. The count then alleges that before the trial, the defendants intending to defeat and obstruct the due course of law and justice, conspired with the wife of Broome that the said charge should not be prosecuted, that Hamp should not attend to prosecute or give evidence, and that he should receive in consideration the sum of 5001. from Mrs. Broome. Huddleston (for Probert) interposed, and said that the first count did not charge a conspiracy. LORD CAMPBELL, C.J.-It says "agreed." Nothing turns on that. Conspire is nothing; agreement is the thing. The count then alleges that Hamp did receive an order for the payment of 4007., and did go out of the way to avoid prosecuting the charge, and that the other defendants assisted him in so doing. In the REG. V. HAMP AND OTHERS. 1852. Evidence. second count the charge was slightly raised, but was in substance the same as the first count. The third count charged the defendants with conspiring and agreeing together to obstruct and defeat the due course of law and justice, and to obstruct and prevent the prosecution of the said charge; and alleged that, in pursuance of that conspiracy, Hamp corruptly absented himself, Conspiracy— and received the cheque for so doing. The fourth count charged the conspiracy, but did not allege any act of the defendants to carry out that conspiracy. The jury were to say, on the first and second counts, whether the defendants did agree not to prosecute, as therein alleged, and on the third and fourth counts, whether they conspired to obstruct and defeat the ends of justice. If they did so agree and conspire, whatever might be their private reasons, it was the duty of the jury to convict the defendants. His Lordship then went through the evidence, and observed, that the fact of the cheque not having been paid was immaterial, for the offence, if committed at all, was complete when the cheque was delivered and received. The jury returned a general verdict of Guilty, but strongly recommending the defendants to mercy, on the grounds that they were themselves the victims of a base and infamous conspiracy. Judgment deferred. Parry and Metcalfe for the prosecution. Sir A. Cockburn and Huddleston for the defendant Probert. COURT OF QUEEN'S BENCH. May 7, 1853. (Before LORD CAMPBELL, C.J., WIGHTMAN, ERLE, and CROMPTON, JJ.) REG. v. ARTHUR HILLS.(a) Indictment-Certiorari-Costs-Attachment for nonpayment— Estreating recognizance. THIS The defendant, having been convicted of misdemeanor upon an indictment which he had removed into this court by certiorari, the judgment was respited by consent, upon an agreement by the defendant to pay the taxed costs immediately. The costs were taxed at 2271.; the defendant became bankrupt, and the prosecutor proved for that amount under his bankruptcy. Judgment was afterwards entered up, and the costs of the prosecution again taxed under the 5 & 6 Will. & M. c. 11, at 2431. Upon a rule for an attachment against the defendant for nonpayment of that sum pursuant to the Master's allocatur, and to estreat the recognizances into which the bail had entered, the court estreated the recognizances, but discharged the rule for an attachment. HIS was an indictment for a nuisance in using a vitriol manufactory, which the defendant had removed into this court by certiorari. It was tried in March, 1851, when a verdict of guilty was entered, subject to an arrangement whereby certain chemists were to report whether the manufactory could be carried on so as not to be a nuisance; and ultimately they reported that it could not. It was, however, agreed that judgment should still be respited, upon the defendant paying immediately the costs of the prosecution up to that time, which were then taxed by the Master of the Crown-office at 2271. The defendant, however, did not pay that amount, but executed a bill of sale of his property, and in February, 1852, became bankrupt. Under his bankruptcy the prosecutors proved for the sum of 2271.. but afterwards entered up judgment upon the indictment, and obtained a side-bar rule for the costs of the prosecution under 5 & 6 Will. & M. c. 11. Under that rule the Master again taxed the costs, notwithstanding the protest of the defendant; and the amount of his allocatur, including the previous sum of 2277., was 2431. That amount having been demanded, and payment refused, a rule nisi had been obtained (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. calling upon the defendant and his bail to show cause why an attachment should not issue against him, and why the recognizance entered into by him and his bail pursuant to the statute, should not be estreated. M. Chambers, and Bramwell, showed cause.-First, the prosecutors who apply do not show that they are the parties grieved; and the stat. 5 & 6 Will. & M. c. 11, s. 3, only gives the costs to prosecutors who are also parties grieved. [CROMPTON, J.-You should have moved to set aside the side-bar rule, if you meant to take that point. The officers of the court say that it is not the practice to have an affidavit that the prosecutors are parties grieved upon this application.] Secondly, the proof under the bankruptcy is equivalent to payment. Thirdly, as to the bail, the recognizance does not in form impose any liability to pay costs; and though, by construction of the statute, the principal has been held liable to the costs, the sureties are not. [CROMPTON, J.—In R. v. Hodgson, 21 L. J. 181, M. C., the bail were held liable.(b)] At all events the bail are sureties only; and here, by reason of the proof under the bankruptcy, there has been no failure on the part of the principal. [CROMPTON, J.-He has not performed the condition of the recognizance, though he may have acquired a personal exemption.] Bovill, contrà.-The prosecutors have a strict legal right to these costs under the stat. 5 & 6 Will. & M. c. 11. The proof under the bankruptcy took place before judgment was signed, and applies only to the sum of 2277., the right to which depended solely upon a bargain which the defendant did not perform. The right to the sum of 2431. depends upon the statute, and is a right altogether irrespective of the previous bargain. [ERLE, J.But that includes the sum of 2271., and the proof under the bankruptcy discharges the bankrupt from the whole of the debt proved. WIGHTMAN, J.-Suppose there had been a dividend; could you still have claimed an attachment for non-payment of 2431.? The prosecutors are entitled to enforce payment of the whole amount; but if they had received any part, they would of course be bound to give credit for so much. LORD CAMPBELL, C.J.-We think that the attachment ought not to issue against the defendant, but the recognizance may be estreated for the purpose of proceeding against the bail. Rule discharged as to the attachment; but absolute (b) See also R. v. Teal, 13 East, 4; R. v. Hawdon, 1 Q. B., Rep. 464. REG. v. HILLS. 1853 Certiorari Costs. COURT OF QUEEN'S BENCH. January 27, 1853. (Before LORD CAMPBELL, C.J., COLERIDGE, J., and REG. v. ARCHIBALD WILSON. (a) Indictment-Certiorari-Costs-Prosecutor-Stat. 5 & 6 Will. & Mary, c. 11, s. 3. The Lord Mayor of London having committed the defendant for trial at the Central Criminal Court upon a charge of misdemeanor, directed the city solicitor to conduct the prosecution, the expenses of which were defrayed out of the city funds. The defendant removed the indictment into this court by certiorari, and was convicted. Held, that the Lord Mayor, not being personally liable for the expenses of the prosecution, was not entitled, as prosecutor, to recover the costs from the defendant under the provision of statute 5 & 6 Will. & Mary, c. 11, s. 3. In order to bring the case within that statute, there must be a prosecutor personally liable for the expenses. A RULE had been obtained, calling on the prosecutors of this indictment to show cause why the side-bar rule for taxing the costs of the prosecution to be paid by the defendant to the prosecutor should not be set aside. The indictment, which was for an indecent assault, was found at the Central Criminal Court, and removed by certiorari by the defendant into this court. The Lord Mayor of London had originally committed the defendant upon the charge, and directed the city solicitor to conduct the prosecution, according to a common practice in the city with regard to cases where, otherwise, there might be reason to apprehend a failure of justice. The prosecution was accordingly conducted by the city solicitor, and the expenses were paid, as usual in such cases, out of the city funds. The defendant was convicted, and then a side-bar rule for taxation of the costs was obtained by the prosecution, pursuant to stat. 5 & 6 Will. & M. c. 11, s. 3. Hugh Hill now showed cause against the rule for setting aside that side-bar rule. The Lord Mayor was an officer whom it concerned to prosecute, within the intention of the statute, according (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. |