« ForrigeFortsett »
W. S. O'BRIEN introducing either the 57th or the 36th Geo. 3. It is to be regretted that AND OTHERS, this short mode of expression, which raises such difficulty, should have been IN ERROR, adopted; but our duty is not to correct the Legislature; our duty is to form
the best opinion we can on what the meaning of the statute is which has been THE QUEEN. passed. We may reg
passed. We may regret the form, and we may regret that there should be such High treason.
a variation in the laws of the two countries. We may deplore it, and I do think it is deplorable, that there should not be distinct and precise legislation, and that what is deemed conducive to the establishment of innocence in the one country should not be deemed so in the other ; but, as I before mentioned, all we have to do is to expound the law : we cannot make it. If there be no doubt, or no ground of implication we cannot depart from the enactments. The conclusion which I have come to upon this subject is, that the statute of Anne is not in force in Ireland, and therefore there was no foundation for the error assigned in this respect. I shall not go into any further consideration of it; it is not necessary for me to do so, either as to the form or the admissibility of such a mode of bringing forward such a matter, if in point of law the right existed. It is clear, that under the statute of Car. 1, the right to challenge was limited in high and petit treason to twenty instead of thirty-five. It is also plain, that the word "treason " is used in 9 Geo. 3, as a single general term, substituted for the two that had been used, “high treason" and "petit treason," in 11 Car. In this very act we find the word “ treason " used necessarily to include or mean high treason; there can be no question on that. And with respect to the allocutus, I think it has been sufficiently observed upon. Therefore I am of opinion that all the errors assigned ought to be overruled.
Judgment of Moore, J.
MOORE, J., expressed his full concurrence in the opinion pronounced by the other judges, and in the reasons which had been assigned for that opinion, observing that " it is totally beyond my power to do anything more than to repeat some of the observations which have been already so clearly and strongly made by some one or other of my brethren who have preceded me." (a)
The Altorney-General (Monahan), The Solicitor-General (Hatchell), Baldwin, Q.C., David Lynch, and John Perrin, for the Crown.
Whiteside, Q.C., Butt, Q.C., Napier, Q.C., Francis A. Fitzgerald, Isaac S. O’Callaghan, Sir Colman O'Loghlen, and Thomas H. Barton, for the several plaintiffs in error.
ERRATUM.—In the report of this case, in page 361, supra, in line 23 from bottom, for “ in the month of October, 1848," read “in the months of September and October, 1848."
(a) For this reason we have deemed it unnecessary to give this judgment in extenso, the case having already occupied more pages than had been anticipated, and which only its great importance as the principal state trial of our time will excuse. -EDITOR.
CENTRAL CRIMINAL COURT.
May 11, 1849.
Ann DRADDY. (a)
Receiving stolen property— Wife acting under coercion of husband. Where a wife was indicted with her husband for receiving stolen property,
and the evidence was, that although not present when her husband received the property, she had subsequently dealt with it, and ultimately
destroyed it: Held, that it was a question for the jury whether, in receiving it and
taking an active part in dealing with it afterwards, she did so with the purpose of aiding her husband in the object he had in view of turning it to profit; or whether what she did was merely for the purpose of concealing her husband's guilt, or screening him from the consequences. In the first case she might be found guilty; in the second she ought to be acquitted. THE prisoners, M‘Clarens and Middleton, were indicted for
1 stealing certain sugar, and John Draddy, and Ann Draddy, his wife, were indicted for receiving the same, knowing it to have been stolen.
The evidence against the husband was, that he received the sugar in the first instance, his wife not being present; but a witness was called, who, on going to the house to search for the stolen property, found some remains of the sugar in a sink in the kitchen, and on questioning the wife, she stated that she and her daughter had washed all the sugar away; that they had burnt the bags in which it was contained, and that she thought it a hard case that she and her husband should be at a loss of 41. or 51.
Parnell, for the prisoner, Ann Draddy, submitted that there was no case against her; that she was not present at the time the property was received, and that in anything she afterwards did she might be well taken to haveacted under the coercion of her husband. Her conduct was much more indicative of an attempt to screen her husband than of any felonious knowledge of the property being stolen. He quoted Archer's case (1 M. C. C. 143).
(a) Reported by B. C. Robinson, Esq., Barrister-at-Law.
REG. . COLTMAN, J. (in summing up).-If the husband received the M'CLARENS
ENS property knowing it to be stolen, and if the wife received it from AND OTHERS. 1:
him with the like knowledge, and with the purpose of aiding and Husband and assisting him in the object which he had in view in receiving it, by Wife
turning it to pecuniary profit, or other like manner, although Larceny.
primâ facie she might be supposed to be acting under the coercion
The prisoner, Ann Draddy, was acquitted.
COURT OF QUEEN'S BENCH.
February 10, 1849.
(Before LORD Denman, C. J., PATTESON, J., Coleridge, J.,
and ERLE, J.)
Reg. v. BUCHANAN.(a)
Attorney—Indictment for practising contrary to the 6 & 7 Vict. c. 73—
Prosecution by a Law Society-Costs—Statute 5 & 6 Will. Å M.
c. 11, s. 3—Party grieved. A society composed exclusively of attorneys practising in the county of K., prosecuted the clerk of a board of guardians, who, without being qualified as an attorney, conducted an appeal to the Quarter Sessions of the county
of K., on behalf and at the request of the guardians. Held (Coleridge, J., dissentiente), that the society was a “party grieved”.
within 5 8 6 Will. & M. c. 11, s. 13. A RULE nisi had been obtained for setting aside the side-bar
1 rule for taxing the prosecutors their costs in this indictment, which had been preferred by the Kent Law Society, composed exclusively of attorneys practising in the county of Kent, and on which the defendant, at whose instance it had been removed into this court from the sessions, had been convicted of having practised as an attorney at the Canterbury Sessions, without being duly qualified. The rule had been obtained on the ground that the prosecutors were not parties injured or grieved within the meaning of the act.
The affidavits in support of the rule, showed that the defendant was clerk to the board of guardians; that he had only practised on the particular occasion which gave rise to the prosecution, and then at the special request of the guardians to save expense; and that at the time he was totally ignorant of the recent statute 6 & 7 Vict. c. 73, s. 2, which made such a proceeding on his part penal. The affidavits in opposition to the rule set forth the duties, responsibilities, exclusive privileges, and fixed charges of which attorneys are the subject.
Against the rule cause was shown May 31, 1847, by
Sir F. Thesiger, and l[urlstone. It is admitted that these prosecutors are not parties injured, for they have not sustained any specific damage. But they are parties grieved. Their case is like that of commoners, whose right has been usurped
(a) Reported by A, BITTLESTON, Esq., Barrister-at-Law.
by a stranger, or of the dippers of Tunbridge Wells, who were
held capable of maintaining an action against a stranger who BUCHANAN.
-1*** intruded on them, and so interfered with the contingent gratuities Practising as of visitors at the wells. It is quite plain that they are persons
eye whose grievance is, from the act of the defendant, distinct from
the grievance of the public in general. They cited R. v. Cooke (1 Man. & R. 526); R. v. Taunton, St. Mary's (3 M. & S. 465); R. v. Pemberton (2 Burr. 1035); R. v. Dewsnap (16 East. 194); R. v. Incledon (1 M. & S. 268); R. v. Dobson (15 L. J. 97).
Horn and Pashley, contrà.—No person is a party grieved within the meaning of this statute, unless the grievance of which he complains is one for which he could have brought an action : and it is admitted that in this case no action lies. If there be either the specific private damage that would support an action for nuisance, or its equivalent in any other form of injury, the action may be supported; not otherwise. If the injury be one affecting a large class, as in this case, for the attorneys of a county distant from Canterbury are as much aggrieved by the invasion of this possibility as those of Kent, there is no grievance within this statute. R. v. Caldecott (1 Dowl. N. S. 556); R. v. Edwards (5 B. & Ad. 407, n.); R. v. Dewhurst (5 B. & Ad. 405); R. v. Middlesex (3 B.& Ad. 938); R. v. Tompkins (2 B. & Ad. 287); R. v. Sharpness (2 T. R. 47); Puine v. Partrick (Carth. 194); Chichester v. Lethbridge (Willes, 74, n.); Williams' case (5 Rep. 72); R. v. Lord Waldegrave (2 Q. B. 341).
Cur. adv. vult.
The judgment of the court was now delivered by
LORD DENMAN, C. J.-This case was heard before my brothers Patteson, Coleridge, and Erle, and myself, and we have been called upon for our judgment. The majority of us think that the prosecutors in this case are parties grieved, within the meaning of the 5 & 6 Will. & M. c. 11, s. 3, and ought to have their costs. My brother Coleridge dissents from this opinion, and considers the interest of the prosecutors to be too remote and uncertain to admit of the application of that statute.
cation of this to be tools opinio