1840. REGINA v. WHILEY. Cockburn, in reply.—I submit, that, as the grand jury are allowed to find this bill under this act, there must be such averments as will shew their jurisdiction. To give the jurisdiction, it must be proved that the party was in custody when the bill was found, and if it must be proved, it must be averred on the face of the indictment. PARKE, B.-The same observation would have applied to the treason case in 1746. ALDERSON, B.-That case is quite in point. COLERIDGE, J.-Suppose that the prisoner had de murred? COLTMAN, J.-The whole record would then have been made up, and by the caption it would have appeared that the party was in custody. Lord DENMAN, C. J.-In Eneas Macdonald's case (a), the indictment was different from that of Berwick and several of the other rebels, because the indictment and proceedings were after the 1st of January, 1746. Cockburn. If we had demurred, I apprehend that the caption could not be referred to. Lord ABINGER, C. B.-The record would then have been made up to the time of the joinder in demurrer, and would have had the caption. Lord DENMAN, C.J.-The present indictment seems to state an immaterial fact as to the jurisdiction. PARKE, B.-The question is, whether Mr. Cockburn is (a) Fost. C. L. 59. correct in his position that it is necessary to state in the indictment all things which are necessary to give the Court jurisdiction. As this case comes before us on a point which is in arrest of judgment, we should have the record and caption. BOSANQUET, J.—Mr. Cockburn, how do you distinguish this from the case of the rebels? Cockburn. I do not at present see any distinction; but your Lordships would not perhaps be bound by one case, against the broad principle, that all that must be proved must be averred. GURNEY, B.-Some very eminent Judges sat on the special commission in 1746 (a). The case was afterwards considered by the Judges, who held the conviction right, on the ground that the prisoner's being in custody in the county of Southampton would have sufficiently appeared from the caption of the indict ment. 1840. REGINA v. WHILEY. (a) It appears, from Fost. C. L. p. 1, that that commission was directed to every privy councillor by name, and to all the Judges; and it appears, from Berwick's case, (18 St. Tr. 367), and Deacon's case, tried on the same day, (Id. 365), that the Judges then present were Willes, C. J., Abney, J., and Fos- 1843. NORTHERN SUMMER CIRCUIT, 1843. YORK ASSIZES. (Crown Side). BEFORE MR. JUSTICE CRESSWELL. A certificate REGINA V. ACKROYD and JAGGER. ROBBERY.-The indictment charged that the prisoners had been previously convicted of felony. The robbery having been proved, and the prisoners found guilty of it, Overend, for the prosecution, put in a certificate, signed by the clerk of assize of the Northern Circuit, which certified that, at the assizes and general gaol delivery, holden &c., the prisoners were, in due form of law, "tried and convicted" of a felony, the particulars of which were set out in the certificate; but in the certificate there was no statement that any judgment had been given on that conviction. It CRESSWELL, J.-This certificate is not sufficient. does not state that any judgment was given. The judgment may have been arrested. Overend. The stat. 7 & 8 Geo. 4, c. 28, s. 11, provides that "a certificate, containing the substance and effect only, omitting the formal part of the indictment and conviction for the previous felony," signed by the proper officer, shall be sufficient evidence. All these requisites have been complied with. The statute uses the word "convicted;" and this certificate states that the prisoners were "convicted.” CRESSWELL, J.-I think that it is not sufficient. Overend, for the prosecution. Bliss, for the prisoners. [Attornies-Mitchell, and Hardisty.] 1843. REGINA บ. ACKROYD. REGINA V. SPENCER and Others. BURGLARY.-The indictment, after stating the principal felony, proceeded, "And the jurors aforesaid, upon their oath aforesaid, do further present, that at the general quarter sessions of the peace, holden" &c., the said &c. "were duly convicted of felony," without any further allegation as to the judgment. The prisoners having been found guilty, and the jury having found that they had been previously convicted felony, of Overend moved in arrest of judgment, and referred to the preceding case of Regina v. Ackroyd and Another, and contended that, as his Lordship had held that it was necessary for the certificate of a previous conviction to contain a statement of the judgment, à fortiori, it was essential for the indictment to contain such an allegation. CRESSWELL, J.-I think it is sufficient for the indictment to allege generally that the party has been convicted; though I have held, and do hold, that the certificate of a previous conviction cannot be given in evidence without a statement of the judgment on the first indictment. Where a pri soner is indict ed for a felony after a previous conviction un der 7 & 8 Geo. 4, c. 28, s. 11, it is sufficient to allege in the indictment that the prison er was "con victed of felony," without stating the judgment. 1843. REGINA v. SPENCER. Sentence was passed on the prisoners (a). Bliss, Pashley, and Hardy, for the prosecution. Wilkins and Overend, for the prisoners. [Attornies-Clough, and Battye & Clay.] (Civil Side). BEFORE MR. JUSTICE WIGHTMAN. Semble, that a plea puis darrein continuance at Nisi Prius should be tendered to the judge within the eight days allowed by the Reg. Gen. of Hilary Term, 1834, though the cause may not have been reached in its turn. PASHL TOWNSEND v. SMITH. ASHLEY, for the defendant, on the fifth day of the assizes, applied on behalf of the defendant for leave to plead a release given by the plaintiff to the defendant since the issuing of the jury process, and within eight days of the day on which the application was made. The plea was accompanied by the affidavit required by Reg. Gen. 2, Hilary Term, 4 Will. 4. WIGHTMAN, J.-Why not wait until the cause is called on in its turn, and then the counsel for the plaintiff will be present? (a) The stat. 7 & 8 Geo. 4, c. 28, s. 11, in providing for the form of indictment, enacts, that "it shall be sufficient to state that the offender was, at a certain time and place, convicted of felony, without otherwise "describing the previous felony." And, with respect to the certificate, the same section enacts, that it is to contain the substance and effect" of the indictment and conviction." In the case of Grif fith v. Harries, (2 Mees. & Wels. 341), Lord Abinger said, "All convictions before magistrates should embrace two things, first, the adjudication of the fact which forms the crime; and, secondly, the pronouncing the judgment, which the magistrate is empowered to pronounce upon the crime and if either of these essentials be imperfect, then the conviction is bad." |