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
Let us see how the new rule laid down by the House of Lords will operate
in future, in such a case as the one above supposed; bearing in mind
that it will have to be acted upon, not merely by the judges of the
superior courts at the assizes, but by the chairmen--the _lay_
chairmen--of the courts of Quarter-Sessions. Let us imagine the
indictment to be a long one, and each count necessarily complicated in
its allegations and refinements, to meet very doubtful facts, or very
doubtful language in an Act of Parliament. A great number of prisoners
are to be tried; but, nevertheless, the judge (lay or professional) has
mastered the formidable record, and points out to the jury two bad
counts, A and B, as either not hitting the facts of the case or the
language of the act--possibly neither. He orders them to be quashed, or
directs a verdict of not guilty upon them. He then has the verdict and
judgment entered accordingly on count C, (the count which he considers
good.) The record is afterwards made up; a writ of error brought; the
only count on which the judgment is given being C, the court of error
_decides that it is bad_, reverses the judgment, and the prisoner is
discharged; or the country is put to the expense and trouble of
bringing, and the prisoner unjustly harrassed by, fresh proceedings,
which may, perhaps, end as disastrously as before!
To escape from these serious difficulties, it is proposed by Lord
Denman,[18] to leave the legal sufficiency of the counts for discussion
before a court of error, and to pass, not one sentence, but three
distinct sentences on each count respectively, apportioning to the
offence thereby apparently charged, the degree of punishment due to the
guilt disclosed. Keeping his eye on the alarming possibility of a
reversal of judgment, what difficulties will not beset the path of the
judge while engaged on this very critical duty? And why may not the
indictment, for _necessary_ caution's sake, contain, as there often are,
ten, fifteen, or twenty counts? we shall then have ten or fifteen
distinct sentences delivered in open court--engrossed on the record--and
dangling at once around the neck of the astounded and bewildered
prisoner. Is _such_ a method of procedure calculated to secure respect
for the administration of justice, even if, by means of such devices,
the ends of justice should be ultimately secured, though it is easy to
imagine cases in which such devices would, after all, fail; and we had
framed several illustrations of such possibilities, but our limits
forbid their insertion: instances illustrating the mischievous operation
of the rule, equally in cases of defective and unproved counts--of
felonies and misdemeanours--and in the latter case, whether the
indictment contained several offences, or only varied statements of one
offence. In the case first put, what a temptation the new rule holds out
to criminals who may be able to afford to bring a writ of error, and so
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account