"The evidence given on the part of the Crown tended to affect the prisoner John, and also the other two prisoners named in the indictment, and made a case to go to the jury as to a conspiracy by the three, but there was no evidence to show that any other person besides those named in the indictment was engaged in the alleged conspiracy.

66

The jury having found the prisoner, John Ahearne, to be guilty, he was brought up for judgment on the following day, and Mr. Curtis, the senior counsel for the prisoner, then objected that the prisoner, on the above state of facts, could not by law have been tried alone for the conspiracy, but that the other two persons named in the indictment being amenable, and having pleaded, should have been tried along along with him, I took a note of the objection, and passed the usual sentence.

"Since the trial, Mr. Curtis and Mr. Francis Meagher, the other counsel for the prisoner, certified it to me as their opinion that the objection made was a serious one, and ought to be submitted to the Court of Criminal Appeal.

"2nd April, 1852.”

"RICHARD MOORE."

Curtis and F. Meagher, for the prisoner.-Judgment here was irregular, as the prisoner was found guilty of conspiring with other persons, who have not been found guilty, and if they are acquitted, he cannot be guilty of conspiring. As to the averment in the indictment that he conspired with others unknown, when there has been no evidence of a conspiracy with others unknown, this cannot cure the irregularity. [MONAHAN, C. J.-The question here is, can the sentence be carried into effect, inasmuch as the others have not been tried?] Ahearne may be executed, and the others may be acquitted; he will then have been hung for a conspiracy with himself, which is absurd. Again, there is a contradiction on the face of the record-he is both innocent and guilty; for the others have not been found guilty, and, until they are, his guilt is not proved; he is therefore innocent, and yet he is found guilty. This case can be distinguished from Rex v. Kinnersly & Moore, 1 Strange, 193); Rex v. Scott and Hams (3 Burrowes, 1262); Rex v. Nicholas (13 East, 412); and Thody's case. In all those cases the other defendants were either dead or had not appeared and pleaded. This case may also be distinguished from a case very much resembling it, Rex v. Cook and others (5 Bar. & Cress. 538.) That was an indictment against four for a conspiracy; two pleaded not guilty, one pleaded in abatement, to which plea there was a demurrer, and the fourth never appeared. Before the argument of the demurrer, the record was taken down to trial; one of those who pleaded not guilty was acquitted; and the other was found guilty of conspiring with him who pleaded in abatement; the demurrer was afterwards argued, and judgment of respondeat ouster given, whereupon a plea of not guilty was pleaded. There, at the time the trial took place, the demurrer was pending, and the

REG.

v.

AHEARNE.

1852.

PracticeConspiracy-Judgment.

REG.

v.

AHEARNE.

1852.

prisoner was found guilty of conspiring with one who had not pleaded; but here Ahearne is found guilty with others who have pleaded. Lord Sanchar's case (9 Cooke's Rep. 119) proves that, if the others, be acquitted ipso facto, Ahearne will be discharged by it, as it would have the effect of reversing the first Conspiracy conviction. This verdict is, therefore, not conclusive, and may be annulled. [MONAHAN, C. J.-Do you argue that the trial was wrong?] No. [GREEN, B.-What, then, do you think we ought to do?] Judgment ought to be respited. [CRAMPTON, J.

Practice

Judgment.

We might be with you if your appeal were to the discretion of the Court; but, as a matter of law, it is otherwise.] These cases are similar to those of accessary and principal. Hale (P. C. 623) says, "It seems necessary in such cases (i. e. where accessary is tried before principal) to respite judgment till the principal be convicted and attaint; for, if the principal be after acquitted, that conviction of the accessary is annulled, and no judgment ought to be given."

The Attorney-General and Edmund Hayes, for the Crown.-The cases referred to in the course of the argument on the other side show that the prisoner might have been tried as he was, and judgment passed on his being convicted. The counsel for the prisoner seek to draw a distinction between cases where those others, whom the prisoner is indicted for conspiring with, have not appeared and pleaded, and the present, where they have appeared and pleaded. There is no good ground for a distinction, and the same argument ab inconvenienti, and as to the repugnancy on the face of the record, applies to one as much as to the other. The court will not act on a mere possibility for the benefit of one who has taken a course of his own and has been regularly tried and convicted. This appears from all the cases. It would lead to much greater injustice and inconvenience if the prisoner's application were yielded to; and if the court were to wait till every possibility was exhausted, judgment would never be given or carried

out.

LEFROY, C. J., delivered the judgment of the court:- -"We are unanimously of opinion that there are no grounds on which judgment in this case should be respited or arrested. In truth, the arguments which have been urged by the prisoner's counsel apply to the respiting of execution, and not of judgment, and the grounds on which alone this application could be yielded to would be equally contrary to the first principles of law and of public justice. It is a first principle that a party who has been properly tried and found guilty is bound by the verdict and all its consequences, unless there be grounds for respiting or arresting judgment. In the cases in which it has been held that, where two are indicted for a conspiracy, or an action has been brought against two, and one has pleaded, and the other does not appear and plead, the reason why judgment against one is good, is given very pointedly in Brook's Abridgment, tit. Conspiracy,' p. 21:'Conspiracy against several; one appears, and pleads not guilty,

REG.

v.

AHEARNE.

1852.

Practice

and is found guilty with another who does not appear, and the plaintiff recovered judgment, and the defendant brings error because he was condemned, and none of the others, and one alone could not conspire; and yet the judgment was affirmed, because it was found that he and another conspired, and these are two; therefore, this will bind the defendant, but will not the other, who Conspiracyhas not appeared and pleaded, but is sufficient against the defen- Judgment. dant.' Now, what difference does it make if he be a party outstanding, or one who has appeared and pleaded? It is the fact that there is a verdict against one who is in custody that is held to bind him and make him liable to judgment and all its consequences. If that be so, what grounds are there for granting this application, merely from the possibility of those others escaping, by which this judgment would be annulled? Would not the same objection apply as well to the case of a party who does not appear? If the application to respite execution be made to the proper authorities, it will be for them to say if such postponement should be granted until the result of the second trial be known, as it may fail from the death of a witness, or from other circumstances which would be quite consistent with the prisoner's guilt. The effect, therefore, of stopping the consequences of this verdict until the result of a second trial is known would be that the judgment might never be carried out. It is true that no case precisely in point, where the other conspirators have appeared and pleaded, has been cited, but the inconveniences urged by the counsel for the prisoner as ensuing on judgment being pronounced under such circumstances as those of this case have been pressed as strenuously by counsel in those cases cited in the course of the argument, where such applications as the present have been refused. Again, it may be fairly said, why shall we intend that this verdict will be overturned? That might be accounted for in many ways. A similar application has been disregarded in the case in 5 Barn. & Cress., and when based on the same grounds as the present, similar applications have been always refused. In truth, perhaps, our only hesitation arose from this peculiarity, that the punishment is death, and if sentence be once executed, it would be impossible to repair the injury, if any were done. This inconvenience, however, of a prisoner who has been properly tried being discovered to be innocent is one to which all human tribunals must be subject. The reasons offered here by the prisoner's counsel may be good grounds for respiting execution, but certainly not for respiting or arresting judgment. The conviction and judgment, therefore, must stand."

MONAHAN, C. J., said, that at one time he entertained some doubt as to whether sentence could be passed, as this was the first case of the kind where the parties had been jointly indicted and pleaded. The conclusion, however, which must be drawn from the cases cited was, that if the trial were rightly had, judgment should follow. It had not been argued by the counsel for the prisoner that there had been a mistrial. The court must hold themselves bound

REG.

V.

AHEARNE.

by the verdict, and they could not come to any other conclusion than that, the man having been properly tried and convicted, judgment must follow.

1852.

Freland.

COURT OF QUEEN'S BENCH.

May 8, 1852.

(Before THE FULL COURT.)

REG. v. BIRCH. (a)

Practice-Postponement of trial-What necessary statements in affidavit for-Prejudices excited by public papers-Absence of witnesses-Recent indisposition of traverser.

Where a traverser seeks to have a postponement of his trial, on the grounds that statements and abusive articles have been inserted in the public papers, reflecting on his character and calculated to damage his case and prejudice the mind of the public against him, and that consequently he cannot have an impartial trial, it is not sufficient to set forth extracts from those articles and the substance of the statements; but the traverser should pledge his oath that he believes he cannot have a fair trial, from the prejudices created by such statements :

Semble, if a postponement be asked for the traverser on the grounds of the difficulty of obtaining material witnesses, the affidavit should set forth the names and descriptions of such witnesses and state such special circumstances as render the attendance of such witnesses difficult, if not impossible.

Semble, that the recent indisposition of the traverser, rendering him incapable of conducting his defence in person, is not sufficient to induce the court to postpone the trial, unless, perhaps, under very special circumstances, as no man is bound to defend himself in person.

N this case the traverser, against whom a criminal information for libel had been granted by this court at the prosecution of Mrs. French, applied in person to have his trial, which had been fixed for the sittings after the present term, postponed.

The traverser moved, on an affidavit made by himself, from which it appeared that certain statements had been made by Lord Naas, in bringing forward a motion in the House of Commons re

(a) Reported by P. J. M'KENNA, Esq., Barrister-at-Law.

REG.

บ.

BIRCH.

1852.

Practice

of trial.

lating to the case of Birch v. Somerville, in which the traverser was plaintiff, that these statements reflected on the character of the traverser and of his paper-" The World,"-in which the libels complained of had been inserted, and accusations were made against him that his paper was corrupt and libellous, and that the characters of the most respectable individuals in society were Postponement assailed in traverser's paper in the hope of extorting money from those persons; that these accusations and reflections on the traverser were published in all the newspapers of the day, and commented on by some of the leading papers in a manner calculated to damage the plaintiff's character and prejudice the public mind against him. The affidavit further stated that there were persons of high rank required as witnesses by defendant for his defence, whose attendance it would be difficult, if not impossible, to obtain at present. That negotiations were pending until within a short time before the trial, for the purpose of inducing the prosecutrix to withdraw from the prosecution and accept an apology, and that having failed, he (the traverser) was unprepared for his trial; that the traverser had been recently in ill health, and that he intended to conduct his defence in person, and was consequently not in a state of health to do so, and that the application was not made for the purpose of vexatious or unnecessary delay.

LEFROY, C. J.-Do you state in any part of your affidavit that you believe from those prejudices, which you say have been excited against you, that you could not have had a fair trial?

The traverser said that he would not like to swear to that, but he thought that the facts set forth by him in his affidavit were such as must create prejudice against him and prevent him from having an impartial trial.

H. Martley, Q.C., for the prosecution, opposed the application. Mrs. French positively swears in her affidavit that neither she, nor any person on her behalf, or with her consent or knowledge, had entered into any treaty with the traverser, or any person on his behalf, or received any communication from him. None of the grounds relied on by the traverser for obtaining this postponement had been sufficiently clearly stated.

The traverser said that he had recently sent an influential person with a letter to the father of the lady to induce him to interfere for him (the traverser), but he declined doing so, and said that the matter was entirely in the hands of the prosecutrix and her legal advisers, and that he would not interfere.

LEFROY, C. J.-The application to postpone the trial in this case must be disposed of upon the case made by the affidavit, which suggests four grounds for the postponement. A suggestion is made, not sustained by the oath of the party putting it forward, that such a prejudice now exists that he could not have a fair trial. I have already remarked on the insufficiency of the affidavit on that point. The other grounds suggested by him are equally vague and unsatisfactory. He has stated a difficulty with regard to witnesses, but he does not disclose who those witnesses are, their names