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Reg. counsel for the crown to an election on which count they would
proceed. It was conceded that, in general, several counts in misFUSSELL.
demeanor might be joined in one indictment, but that was subject Sedition to the proviso, that the judgment would be the same on each.
Here the judgment would be different, for the court had power, under the 3 Geo. 4, c. 114, to sentence a defendant convicted of a riot to hard labour, and this could not be done under the other counts. The principle on which the rule contended for rests, is that a multiplicity of charges in the same indictment tends to embarrass the defendant, and therefore the court will interfere
for his protection. R. v. Young, 3 T. R. 98, is an authority in Motion to quash point. There Buller, J., says, “but if it appear, before the dethe indictment. fendant has pleaded or the jury are charged, that he is to be tried
for separate offences, it has been the practice of the judges to quash the indictment lest it should confound the prisoner in his defence, or prejudice him in his challenge to the jury, for he might object to a juryman trying one of the offences, though he might have no reason to do so in the other. But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecutor to his election on which count he will proceed. I did it at the last sessions at the Old Bailey.” The distinction was recognized in R. v. Johnson, 3 Maule & Sel. 549.
PARKE, B.-That was a case of felony, and Mr. J. Buller's dictum has reference to a felony.
Allen, Serjt., submitted that the principle was the same in misdemeanors as in felonies. No other criterion was suggested than this, “would the judgment be the same ?” Here one set of counts are framed at common law—another under statute law, and the punishment is different. R. v. Kingston, 8 East, 46, was a case of misdemeanor, in which different offences were joined in one indictment. There the objection was taken by demurrer, which was overruled, but Lord Ellenborough, C. J., said, “this would have been a good ground of application to the discretion of the court to quash the indictment for the inconvenience which may arise at the trial from joining different counts against different offenders; but where, to the offences so charged in different counts, there may be the same plea, and the same judgment, there is no authority for saying that such joinder in one indictment is bad in point of law.” R. v. Towle, 2 Marshall, 466, was also cited.
The Attorney-General (with whom were Welsby, Bodkin, and Clerk, for the prosecution), were not called upon.
WILDE, C. J.-(After consulting Parke, B., and MAULE, J.)It does not appear to us that this is a case in which we can interfere in the way suggested by the learned counsel for the defendant. Whether any particular form of indictment will or will not have the effect of embarrassing the person accused, must be judged of from the nature of the charges which are contained in the different counts. It cannot be contended that there is such an objection on the face of the indictment as would furnish ground
ise tato quash ch ground bellenborones, taken bere joined a case
wou and whiche of my learmay have may have b
for a demurrer. It charges seditious speaking, attending an illegal Reg. meeting and a riot. Now that may be all one transaction; the meeting may have been illegal,—there may have been seditious speaking, and the proceedings may have gone far enough to con Seditionstitute a riot. One of my learned brethren has mentioned a case
Indictment. in point, and which was tried before him ;-a man was charged with wounding nine cows; he had done it at one and the same time, and in the same stable. He was arraigned on nine different counts, and it was contended that there were nine offences, but the learned judge refused to interfere because it was all part of one and the same transaction, and had no tendency, therefore, to embarrass the defendant in his defence. So here the presumption on looking at the charges is, that they all originate in one set of circumstances. Fully admitting, therefore, the propriety of interfering where a defendant is likely to be unfairly endangered by the mode in which he is indicted, we all think, in the absence of any specified hardship or difficulty, we ought to refuse the defendant's application.
The defendant then pleaded not guilty, and the case proceeded. At the close of the evidence for the prosecution,
Allen, Serjt., submitted that there were several variances between Variances. the record and the evidence which were material. It is charged in the indictment that the defendant says, speaking of John Mitchel, “I now ask the same question and adopt his views ; if the Queen neglects to recognize the people, then the people must neglect to recognize the Queen.” The evidence is that the word, in both instances, was forget and not neglect. This totally alters the sense of the passage, and therefore is a material variance.
PARKE, B.—No doubt you must prove some of the precise words, but the question is whether that part where the variance occurs may not be rejected.
Allen, Serjt.-Then it is alleged in the indictment that these words were used,—“If John Mitchel is sent out of his country every Irishman must rise and avenge the insult or you will be no longer worthy of the name.” The evidence is that "they” was the word used instead of “ you.” It is obvious that this is very material; the words in the indictment imply that he intended to stir up and incite those whom he was addressing : substitute the word they, and it might be a mere passing observation as to some other persons living in another country.
MAULE, J.-But it was stated by the witness that those the defendant was addressing were principally Irish, so that you and they would amount to much the same thing.
Allen, Serjt.—T'hen the indictment charges these words to have been used,—“The government is not worthy the support of any honest man ; it is too contemptible to be recognized, and you must use your best endeavours to overthrow it; and now I wish to impress upon you there is one safe way of getting rid of rulers.” The evidence is that the words were “ getting rid of bad rulers.” These the learned counsel contended were material variances and vitiated the indictment.
Irishman this, " If there is pro where
Reg. The Attorney-General submitted that the alleged variances were
immaterial; or if it were otherwise, those particular parts might to be rejected and the remainder might be submitted to the jury as Sedition— amply sufficient to sustain the various counts. Indictment. WILDE, C.J.-(After consulting the other judges.)- The rule
that has been suggested is no doubt the correct rule. When the indictment sets forth certain specific matter, which is charged to
be sedition, it is essential that so much of that matter shall be Judgment as to proved as will support the charge; it is quite immaterial that a the variances. portion is unproved if there is enough left substantially to consti
tute sedition. Now, as to the first sentence in which variance is alleged, “If the Queen neglect to recognize the people, then the people must neglect to recognize the Queen,” there is scarcely any word which could be omitted without destroying the sense of the passage. To substitute the word forgets for neglects would too far alter its meaning, and I think, therefore, that that sentence must be considered as struck out of the indictment.
The next alleged variance is where the pronoun “ you" is in the indictment, and “they” is proved. The first portion of the sentence is this, “If John Mitchel is sent out of his country every Irishman must rise and revenge the insult,” that is literally proved ; and it goes on “ or you will no longer be worthy of the name.” The first part is a sentence complete in itself, and contains seditious matter, and the question is whether it may not be separated from the latter part where the variance occur, and which must, no doubt, be rejected. We think it may, for the latter clause in no way controls or affects the former. Suppose the defendant had not been charged with using the latter words at all, surely the indictment would not be objectionable on that account. It does not profess to charge all that was said; it selects certain matter, which it charges to be seditious, and what is charged to be seditious is not the less so because additional seditious matter is proved which is not charged. We think, therefore, that the former part of the sentence may stand, but that the latter must be rejected. The last objection is that in the passage, “there is one safe way of getting rid of rulers who forget their duty to their country," the word “bad” is proved to have been used before “rulers.” It does not appear to us that that word at all alters the meaning of the sentence. The defendant is proved to have uttered all that he is charged with and something more, but this something, although it may render the expression stronger and more cogent, does not vary the sense. If, on the contrary, it had qualified or lessened it, the objection might have been a good one. As it is, we are bound to hold that the variance is immaterial.
In the course of the defendant's case, Huddleston asked one of his own witnesses whether the defendant had made use of certain expressions—(putting to him the very words used by a witness for
the prosecution)--with a view to elicit from him a negative. Evidence. The Attorney General objected to the question on the ground of
its being a leading one. This was not a case of proposed contradiction, where a former witness had denied on cross-examination,
that certain specific words were used, and subsequently another witness was called to prove them.
Huddleston.-Certain witnesses have come to speak to certain precise words, and pledge themselves that those words were uttered by this defendant. I call a witness to show that those expressions were not uttered, and, therefore, according to the ordinary rule, I am entitled to put into the witness's mouth the exact words to which the other witnesses have pledged themselves. The facts, no doubt, differ from those put by the Attorney-General, but the principle is the same.
WILDE, C. J.-Where one witness has given an account of a transaction, and another is called to give a different account, it is not the common rule to put to the second witness what the first has said, but to call upon him to give his version of the matter, and when he has so done, then to ask him whether this or that expression was not used.
PARKE, B.-It has always been held much the better way to ask what has been said. It cannot be tolerated that you should put the words into the mouth of the witness in the first instance.
LANCASTER Assizes, 1848.
(Before Mr. BARON ALDERSON.)
Reg. v. Mary CLEGG.(a)
Indictment for damaging a warp.
used in manufacturing goods, is not a warp, “in any stage, process, or
is not bad for not averring it to be so. M ARY CLEGG was indicted (under the 7 & 8 Geo. 4, c. 30, Reg.
11 s. 3) for having, at Great and Little Marsden, unlawfully w damaged a cotton warp, the property of Margaret Walker.(b)
Segar and Blair conducted the prosecution, and James and Damaging a Pollock defended the prisoner.
warp. (a) Reported by T. CAMPBELL FOSTER, Esq., Barrister-at-Law
(6) Arch. Crim. Pleading, 10th edit. 324.
t" Great and Little caret Walker.(b) and Damaging a
Reg. The indictment was in the following form :JABI CLEGG.
Lancaster, to wit:—The jurors for our lady the Queen upon - their oath present, that Mary Clegg, late of the parish of Warley, Damaging a in the county of Lancaster, the wife of David Clegg, on the 17th warp.
day of January, A. D. 1849, with force and arms, at the parish aforesaid, in the county aforesaid, certain goods and articles of cotton, to wit, one cotton warp, of the value of 1l., of the goods
and chattels of Richard Brown and another, his copartner; and Indictment. one other cotton warp, of the value of 11., of the goods and chat
tels of Margaret Walker; one other cotton warp, of the value of 1l., of the goods and chattels of John Nicholas Hopwood, the said goods and chattels respectively then and there being in a stage and progress of manufacture, and then and there being found unlawfully, maliciously, and feloniously did damage, by then and there pouring and throwing on the same warp a large quantity, to wit, one ounce of a certain corrosive and destructive acid, towit, sulphuric acid, and by then and there, by and with the said acid, feloniously burning the said warps, so then and there being in a stage and progress of manufacture, with intent then and there feloniously to destroy the said warps, and to render the same useless, against the form of the statute in such case made and provided, and against
the peace of our lady the Queen, her crown and dignity. 2nd count. And the jurors aforesaid, upon their oaths aforesaid, do further
present, that the said Mary Clegg, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, certain goods and articles of cotton in a stage of progress of manufacture, to wit, one cotton warp, of the value of 11. of the goods and chattels of Margaret Walker then and there being, unlawfully, maliciously, and feloniously did damage, to wit, by pouring and throwing on the same last-mentioned warp, a certain large quantity, to wit, one ounce, of a corrosive and destructive acid, to the jurors aforesaid unknown, with intent then and there feloniously to destroy the said last-mentioned warp, to the great damage of the said Margaret Walker, against the form of the statute, in such case made and provided, and against the peace of
our lady the Queen, her crown and dignity. 3rd count. And the jurors aforesaid, upon their oath aforesaid, do further
present, that the said Mary Clegg, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, certain goods and articles of cotton, to wit, one cotton warp, of the value of 11., of the goods and chattels of Margaret Walker, unlawfully, maliciously, and feloniously did burn, and destroy, and damage, with intent then and there feloniously to destroy the same, and to render the same useless, to the great damage of the said Margaret Walker, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.
It appeared that the prosecutrix formerly carried on business as a warp sizer in partnership with David Clegg, near Colne, and after his death, the business was carried on by the prosecutrix