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years old.

At Bury Summer Assizes, 1748, William York, a boy of ten York's case. years of age, was convicted before Ld. Ch. J. Willes, for the Case of murder murder of a girl of about five years of age; and received sentence by a boy of ten of death. But the chief justice, out of regard to the tender years of the prisoner, respited execution till he should have an opportunity of taking the opinion of the rest of the judges, whether it were proper to execute him or not, upon the special circumstances of the case; which he reported to the judges as follows: The boy and girl were parish children, but under the care of a parishioner, at whose house they were lodged and maintained. On the day the murder happened, the man of the house and his wife went out to their work early in the morning and left the children in bed together. When they returned from work the girl was missing; and the boy being asked what was become of her, answered, that he had helped her up, and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man, under whose care the children were, observed that a heap of dung near the house had been newly turned up; and upon removing the upper part of the heap, he found the body of the child, about a foot's depth under the surface, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the boy, who was the only person capable of committing the fact that was left at home with the child, was charged with the fact, which he stiffly denied. When the coroner's jury met, the boy was again charged, but persisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said,

that the child had been used to foul herself in bed; that she did so that morning (which was not true, for the bed was searched and found to be clean); that thereupon he took her out of the bed and carried her to the dung-heap; and with a large knife which he found about the house, cut her in the manner the body appeared to be mangled, and buried her in the dung-heap; placing the dung and straw that was bloody under the body, and covering it up with what was clean; and having done so, he got water and washed himself as clean as he could. The boy was the next morning carried before a neighbouring justice, before whom he repeated his confession, with all the circumstances he had related to the coroner and his jury. The justice very prudently deferred proceeding to a commitment, till the boy should have an opportunity of recollecting himself. Accordingly, he warned. him of the danger he was in, if he should be thought guilty of the fact he stood charged with, and admonished him not to wrong himself; and then ordered him into a room where none of the crowd that attended should have access to him. When the boy had been some hours in this room, where victuals and drink were provided for him, he was brought a second time before the justice, and then he repeated his former confession; upon which he was committed to gaol. On the trial, evidence was given of the declarations before mentioned to have been made before the coroner and his jury, and before the justice, and of many declarations to the same purpose, which the boy made to other people after he came to gaol, and even down to the day of his

York's case.

trial. For he constantly told the same story in substance, commonly adding, that the devil put him upon committing the fact. Upon this evidence, with some other circumstances tending to corroborate the confession, he was convicted. Upon this report of the chief justice, the judges, having taken time to consider of it, unanimously agreed, 1. That the declarations stated in the report were evidence proper to be left to the jury. 2. That supposing the boy to have been guilty of the fact, there were so many circumstances stated in the report which were undoubtedly (a) 1 Hale, 630. tokens of what Ld. Ch. J. Hale somewhere (a) called a mischievous discretion, that he was certainly a proper object for capital punishment, and ought to suffer. For it would be of very dangerous consequence to have it thought that children may commit such atrocious crimes with impunity. There are many crimes of the most heinous nature, such as, in the present case, the murder of young children, poisoning parents or masters, burning houses and the like, which children are very capable of committing, and which they may in some circumstances be under strong temptations to commit: and, therefore, though the taking away the life of a boy of ten years old may savour of cruelty, yet as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing this boy merely on account of his age, will probably have a quite contrary tendency,-in justice to the public, the law ought to take its course, unless there remaineth any doubt touching his guilt. In this general principle all the judges concurred. But two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner; suggesting, that it might possibly appear on further inquiry that the boy had taken this matter upon himself, at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice. Accordingly, the chief justice did grant one or two more reprieves; and desired the justice who took the boy's examination, and also some other persons in whose prudence he could confide, to make the strictest inquiry they could into the affair, and make report to him. At length he, receiving no further light, determined to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last: but before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state. And at the summer assizes, 1757, he had the benefit of H. M.'s pardon, upon condition of his entering immediately into the seaservice. York's case, Foster, 70.

Under seven.

Committing a

rape.

Forcible entry.

But within seven years of age, there can be no guilt whatsoever of any capital offence; the infant may be chastised by his parents or tutors, but cannot be capitally punished, because he cannot be guilty; and if he be indicted for such an offence as is in its nature capital, he must be acquitted. 1 Hale, 19, 20.

An infant under fourteen is presumed by law unable to commit a rape, and therefore, it seems, cannot be guilty of it; and though in other felonies malitia supplet ætatem in some cases, yet it seems as to this fact the law presumes him impotent, as well as wanting discretion. 1 Hale, 630.

An infant may be guilty of forcible entry, in respect of personal

actual violence. 1 Haw. c. 64. § 35. And the justices may fine

him therefore; but yet it shall be good discretion in the justices Imprisonment. of the peace to forbear the imprisonment of such infant. Dalt.

c. 126.

Because it is said, that he shall not be subject to corporal pun- Corporal ishment, by force of the general words of any statute wherein he punishment. is not expressly named. 1 Haw. c. 64. § 35.

But this must be understood, where the corporal punishment is,

as it were, collateral to the offence, and not the direct intention of the proceeding against the infant. 1 Russ. 6.

Treason or felony. Cannot be an

Where a fact is made treason or felony by statute, it extends as well to infants, if above fourteen years, as to others. An infant under the age of discretion cannot be an approver, because he cannot take the oath requisite in that case. 2 Haw. approver. c. 24. § 5.

Judgment.

[Stats. 3 G. 4. c. 114.—4 G. 4. c. 48.—7 G. 4. c. 64.—7 & 8 G. 4. c. 28.-9 G. 4. c. 31.-1 W. 4. c. 70.]

OF judgments, some are fixed and stated, as in cases of treason, Judgments cerfelony, præmunire, and misprision; the particular forms of tain.

which may be seen under their respective titles.

Others are discretionary and variable, according to the different Judgments circumstances of each case: thus, for crimes of an infamous variable. nature, such as petit larceny, perjury, or forgery at common law, gross cheats, conspiracy, not requiring a villanous judgment, keeping a bawdy-house, bribing witnesses to stifle their evidence, and other offences of the like nature, it seems to be in a great measure left to the prudence of the court to inflict such corporal punishment, and also such fine, and binding to the good behaviour for a certain time, as shall seem most proper and adequate to the offence. 2 Haw. c. 48. § 14.

The court may assess a fine, but cannot award any corporal punishment against a defendant, unless he be actually present in court. 2 Haw. c. 48. § 17.

Per Holt C. J. Judgment cannot be given against any man in his absence for a corporal punishment; there is no such precedent. A ca. sa. pro fine is common, but there never yet was a writ to take a man and put him in the pillory. 1 Salk. 400. S. C. 1 Ld. Raym. 267. See also 1 Ld. Raym. 47.

Judgmen in the offender's

absence.

Sentence for corporal punishment cannot be passed on

a person in his absence.

In a case where defendants had confessed themselves guilty of Acc. an information charging them with a misdemeanor, and where a motion was made to dispense with their personal appearance to receive sentence, the court refused it, saying, it ought to be denied in every case, where it was probable or possible that the punishment would be corporal. R. v. Hann and another, 3 Burr. 1786.

An indictment for an assault, which had been found at the quarter sessions, was removed by certiorari into B. R., and tried on the civil side at the Worcester assizes 1831. After conviction, Patteson J. sentenced the defendants (under 1 W. 4. c. 70.), who

Aliter as to a capias pro fine.

Judgment of a joint fine.

Judgment in mitigation of fine.

Power of alter-
ing orders or
judgments dur-
ing the same
sessions, as
in the same
term.

So during the same assizes.

Judgment against the verdict.

Judgment by particular

statutes.

Statute enact

were not present, to pay a fine each of 10l., and to be imprisoned till they were paid, and directed a warrant to issue to take defendants in execution of the sentence. R. v. Woodward and another, 4 C. & P. 540. n.

Where there are several defendants, a joint award of one fine against them all is erroneous; for it ought to be several against each defendant; otherwise, one who hath paid his proportionable part might be continued in prison till all the others have also paid theirs, which would be in effect to punish him for the offence of another. 2 Haw. c. 48. § 18.

A fine is under the power of the court during the term in which it is set, and may be mitigated as shall be thought proper: but after the term, it admits of no alteration. 2 Haw. c. 48. § 20.

While the quarter sessions last it is in the power of the court to alter their orders or judgments, the sessions as well as the term being considered only one day in law; and so it is of judgments at the Old Bailey during the same session. Per Holt C. J., 2 Salk. 606. acc. 2 Bac. Abr. 160.

In two cases where doubts arose whether the sentences passed on prisoners who had been convicted of murder were or were not erroneous, the judges, who differed in opinion on this point, all agreed that, if there was error, it might have been corrected by bringing the prisoners up again, and passing the proper judgment, as the sentence may be corrected or altered at any time during the assizes. R. v. Jane Fletcher, C. C. R. 58. R. v. Wyatt, Ib. 230. A judgment contrary to the verdict is void.

By many statutes peculiar punishments are appointed for several offences, as stocks, imprisonment, whipping, and the like; and in all these cases, no room is left for the justices' discretion, for they ought to give judgment and to inflict the punishment in all the circumstances thereof, as such statutes do direct. Dalt. c. 188.

Where by 22 G. 3. c. 58. (now repealed) persons convicted of reing punishment ceiving stolen goods were made liable to the punishment of " fine, in the alternaimprisonment, or whipping," it was held by the judges on ca. res. that the word or could not be read and; consequently that both imprisonment and whipping could not be inflicted. R. v. Howell and another, C. C. R. 253.

tive.

Larceny, transportation not exceeding four

teen years.

Under 39 G. 3. c. 85. (now repealed) persons convicted of embezzling were made "liable to be transported for any term not exceeding fourteen years, in the discretion of the court before whom the offender shall be convicted;" and on ca. res. the question for the opinion of the judges was, whether a less sentence than transportation for seven years could be passed. The judges were unanimous that the act having expressly made the offence larceny, the court might inflict the like punishment as in the case of a common larceny. R. v. Hudson, C. C. R. 285.

In perjury, proPrisoner was convicted of perjury at the Chester assizes, and cedendo award- sentenced to seven years transportation; and a writ of error having ed, there having been brought thereon, it appeared that the judgment was erronebeen no regular ous in form, it being entered "it is ordered," whereas it should judgment. have been "it is considered." The court awarded a procedendo, ordering the court below to give judgment, and meantime admitted the prisoner to bail. R. v. Kenworthy, 1 B. & C. 711.

But where a court of quarter sessions had sentenced a prisoner But where to transportation for fourteen years, in a case where they had there is an er only power to sentence him for seven, on writ of error being roneous judg brought for this cause, the court of B. R. reversed the judgment reversed. as erroneous. R. v. Ellis, 5 B. & C. 395.

ment, it will be

Upon a conviction in a court below, the defendants having been Mandamus to found guilty of a nuisance at the quarter sessions, the court of pass sentence B. R. granted a mandamus, commanding them to pass sentence after conviction on the indictment. R. v. Justices of West Riding of Yorkshire, in a court be7 T. R. 467.

The question arose on the return to the mandamus, which stated, that the court below had fined each of the defendants 6d., and it was objected that the judgment was imperfect, because it did not proceed to order the nuisance to be abated; the court of K. B. thought this was unnecessary, as the indictment did not charge a continuance of the nuisance; but that at all events, if the judgment below was erroneous, the only mode of correcting it was by writ of error, and referred to 2 Str. 686. S. C. 7 T. R. 467.

low.

Wrong judgment to be corrected by writ

of error only.

sentence of death on persons convicted

of any capital

By stat. 4 G. 4. c. 48., intituled "An act for enabling courts 4 G. 4. c. 48. to abstain from pronouncing sentence of death in certain capital cases," after reciting § 1., that whereas it is expedient that in all cases of felony not within the benefit of clergy, except murder, the court before which the offender or offenders shall be convicted shall be authorized to abstain from pronouncing judgment of death, whenever such court shall be of opinion that, under the particular circumstances of any case, the offender or offenders is or are a fit and proper subject or fit and proper subjects to be recommended for the royal mercy: It is enacted, that from and after the pass- Court may ing of this act, whenever any person shall be convicted of any abstain from felony, except murder, and shall by law be excluded the benefit pronouncing of clergy in respect thereof, and the court before which such offender shall be convicted shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may felonies, be lawful for such court, if it shall think fit so to do, to direct except murder. the proper officer then being present in court to require and ask, whereupon such officer shall require and ask, if such offender hath or knoweth any thing to say, why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall and may, and is hereby authorised to abstain from pronouncing judgment of death upon such offender; and instead of pronouncing such judgment, to order the same to be entered of record, and thereupon such proper officer as aforesaid shall and may and is hereby authorised to enter judgment of death on record against such offender, in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender, by the court before which such offender shall have been convicted.

§ 2. A record of every such judgment, so entered as aforesaid, shall have the like effect to all intents and purposes, and be followed by all the same consequences, as if such judgment had actually been pronounced in open court, and the offender had been reprieved by the court.

Record of judgment to have the same effect as if nounced.

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