« 이전계속 »
“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.
“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.
“RICHARD MooRE.” “2nd April, 1852.”
Curtis and F. Meagher, for the prisoner.—Judgment here was irregular, as the prisoner was found guilty of conspiring with other
rsons, who have not been found guilty, and if they are acquitted, e cannot be guilty of conspiring. As to the averment in the indictment that he co 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 . be acquitted; he will then have been hung for a conspiracy wit 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 Rez v. Kinnersly & Moore, 1 Strange, 193); Rez v. Scott and Hams (3 Burrowes, 1262); Rer 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, Rez v. Cook and others (5 Bar. & Cress. 538. That was an indictment against four for a conspiracy; two pleade 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. to. AHEARNE.
Practice— Conspiracy— Judgment.
prisoner was found guilty of conspiring, with one who had not
and is found guilty with another who does not appear, and the Reg. plaintiff recovered judgment, and the defendant brings error
AHEARNE. because he was condemned, and none of the others, and one alone could not conspire; and yet the judgment was affirmed, because 1852. it was found that he and another conspired, and these are two;
Practice therefore, this will bind the defendant, but will not the other, who conson has 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
cerdiet will beginilar applichen be
e punishnaps, our onipplicatio when bases
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.
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 inca
pable of conducting his defence in person, is not sufficient to induce the court to postpone the trial, unless, perhaps, under very special circum
stances, as no man is bound to defend himself in person. TN this case the traverser, against whom a criminal information
1 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-Lar.
lating to the case of Birch v. Somerville, in which the traverser was
Practice— Postponement of trial.