Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844 — John Shaqi
Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844Various
History
Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844
Various
England -- Periodicals; Scotland -- Periodicals
To enable the lay reader to appreciate the novel doctrine which has been
sanctioned in the present case, it is requisite to understand clearly
the distinction to which we have already briefly adverted, between a
motion in _arrest of judgment_ and a _writ of error_. When a defendant
has been found guilty of an offence by the verdict of a jury, judgment
must follow as a matter of course, "_judgment_ being the sentence of the
law pronounced by the court upon the matter contained in the
record."[11] If, however, the defendant can satisfy the court that the
indictment is entirely defective, he will succeed in "_arresting,_" or
staying the passing of judgment; but if he cannot, the court will
proceed to _give judgment_. That judgment having been entered on the
record, the defendant, if still persuaded that the indictment is
defective, and consequently the judgment given on it erroneous, has one
more chance; viz. to _reverse_ the judgment which has been so given, by
bringing a writ of error before an appellate tribunal. Now, the exact
proposition for which the traversers' counsel contended was this--that
the rule that "one good count will sustain a general judgment, though
there are also bad counts in the indictment," is applicable to that
stage only of the proceedings at which a motion is made in arrest of
judgment; _i. e. before the judgment has been actually given_, and not
to the stage at which a writ of error has been obtained, viz. _after the
judgment has been actually given_.
This proposition was adopted by Mr Justice Coltman; while Mr Baron
Parke--for reasons substantially identical with those of Lords Denman,
Cottenham, and Campbell--declared himself unable to overthrow it.
As to the "opinion that one good count, properly found, will support a
judgment warranted by it, whatever bad counts there may be," Mr Baron
Parke said,--"I doubt whether this received opinion is so sufficiently
established by a course of usage and practical recognition, though
generally entertained, as to compel its adoption in the present case,
and prevent me considering its propriety. After much anxious
consideration, and weighing the difficulties of reconciling such a
doctrine with principle, I feel so much doubt, that I cannot bring
myself to concur with the majority of the judges upon this question."
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