"In capital cases the sheriff returns the panel of the jury, who being called and appearing, the prisoners are told by the clerk that these good men now called and appearing are to pass upon their lives and deaths; therefore, if they will pass any of them, they are to do it before they are sworn, and if no challenge hinder, the jury are commanded to look on the prisoners, and then severally twelve of them, neither more nor less, are sworn."

Attorney-General: The practice of this Court is that the panel is always called over at the beginning of the Sessions, and the names of those who do appear are ticked off. Every prisoner who chooses may be here then. The jurors are taken by ballot.

A challenge for favour must be such as to satisfy the Court in point of form, so that the prosecutor may demur or counter-plead, and that it may be put upon the record.

Ballantine: The reading over of the panel at the beginning of the Sessions in the absence of the prisoners is not enough. Our challenge is for favour, that he does not stand indifferent. There is nothing to his discredit, or affecting his reputation. It arises from the peculiarity of the times and circumstances under which the trial takes place.

:

PLATT, B. In Rex v. Edmonds, (a) Abbott, C.J. says—

"It is an established rule as to proceedings of this kind that no challenge either to the array or to the polls can be taken, until a full jury shall have appeared; and if twelve of those named in the original panel do not appear, a tales must be prayed, and the appearance of twelve obtained before any challenge be made." Therefore until you have got twelve men into the box, the objections that you are seeking to make cannot be made.

The Clerk of Arraigns then called twelve jurymen from the panel, and on their appearance called on the prisoners to make objection in the usual form.

Huddleston again applied to have the jury panel read over, and cited 2 Hawk.

P.C. c. 43. s. 4

"before any juryman is brought to the book, (b) the prisoner, by leave of the Court, may have the whole panel once called over in his hearing, that he may take notice who do, and who do not appear, in order the better to enable him to take his challenges."

This was done by order of the Court, the Attorney-General not opposing, in

PLATT, B.: I do not understand you to oppose, Mr. Attorney, except on the ground of precedent.

Attorney-General: No, my lord, not if it is understood to be by consent. PLATT, B.: Be it so.

The panel was accordingly read over. Ballantine having stated that the prisoners intended to sever in their challenges, the Attorney-General said he would take the case of Cuffey first.

Ballantine for Cuffey then challenged John Pickworth

"for that the said J. P. does not stand indifferent between the Crown and the prisoner."

The Attorney-General proposed to demur to the above challenge as bad in law, but afterwards stated that he preferred to join

issue.

The Attorney-General objected to this. question as being one totally irrelevant.

Ballantine: This question is allowable, for it does not touch the honour or credit of the witness.

PLATT, B. It is a question which has nothing whatever to do with the issue, and I cannot allow it to be put.

Ballantine (to the juror): Have you ever expressed any opinion as to the guilt of the prisoners ?-No.

Ballantine withdrew the objection, and the triers found the juror was indifferent.

Ballantine challenged several of the other jurors for favour; and after triers had been appointed, asked if they had expressed any opinion as to the result of the trial. One juror answered that since he had been in Court he had expressed his opinion that the prisoners ought to le hung. He was withdrawn. In the other cases the triers found against the challenges.

A full jury having been sworn, Parry stated that the prisoners no longer wished to sever in their challenges.

Attorney-General: The jury have been sworn to try Cuffey.

PLATT, B.: There is no charge to them

Cuffey objected that the jurors were not his equals, as he was a journeyman mechanic.

PLATT, B.: Very well, you have made your objection.

Ballantine: You must leave it to us. The Attorney-General having addressed the jury, evidence was given as in the preceding case, that the prisoners, from July 20th to August 16th, had been in the habit of attending meetings where plans for securing the "People's Charter" and the Repeal of the Union" were suggested and organised; that the prisoners took a prominent part at such meetings; that large bodies of men were formed into societies, with class leaders, wardens, delegates, &c.; that some of the members of such societies were selected and organized as fighting-men, others were in-tructed in erecting barricades, firing houses, and scattering grenades; that an attempt at insurrection was to be made in the night of the 16th of August; and that on that night a great number of the conspirators were found at the several places of meeting previously marked, provided with arms and combustible materials.

The witness Powell having spoken to various meetings between July 28 and August 15 connecting the prisoners with the conspiracy, was questioned as to an earlier meeting on July 20 at the "Black Jack," at which none of the prisoners were present. At that meeting he was asked for his credentials, and produced a leaf of a book which had been given him by a man named Bezer. In giving it to him Bezer made a statement. Payne, the chairman of that meeting, compared the leaf with a book which he had in his hand, and upon that the witness was admitted. Powell was now asked what Bezer said to him when he gave him the leaf, and also what took place at the meeting at the "Black Jack."

Ballantine: It has not been shown that the prisoners were implicated in the common design on July 20th, and therefore they are not answerable for the conduct of other parties at that date. It was ruled in the last case that the statement of Bezer could not be gone into.

Bodkin: In consequence of that ruling we have changed the order of the evidence. Erle, J., ruled that we had not laid sufficient foundation for the question. We have now shown that the prisoners were afterwards connected with the conspiracy.

PLATT, B.: Ought we not to have evidence that these three parties formed a part of the conspiracy before you can make the evidence of any one evidence against the rest?

Attorney-General: This evidence would

at least be admissible to show how this witness became a member of the society, but I shall contend that it is admissible on general principles against these defendants, as proving the conspiracy. Both the prisoners and Bezer are shown to have been parties to the conspiracy at a later date.

Ballantine: This is not a charge of conspiracy, but of felony. If these defendants were indicted for a larceny, could it be contended that conversations had, long before the offence was committed, with persons alleged to be implicated in the transaction, would be admissible against them? Parry followed.

one

Attorney General: This is a felony based upon a conspiracy. The charge is of compassing and intending to depose the Queen, &c., and of declaring such compassing, &c., by certain overt acts; here, assembling, conspiring, &c. The overt acts do not of themselves constitute the offence, they are only evidence of the compassing. If several persons conspired to commit a felony, such as larceny, a man who came in at the eleventh hour and joined in the commission of the offence would be responsible for what they had previously done, for he would have adopted it by his subsequent conduct. In conspiracy, where a man stops short at the moment of commission, you can only convict him by showing he was a party to maturing the plan.

PLATT, B.: But that arises from the rule that in misdemeanors all are principals.

WILLIAMS, J.: The reason why, in a conspiracy, you admit evidence of the acts and observations of others is, that those others are agents; but how is it the act of an agent when the party is not at the time involved in the conspiracy?

Attorney-General: The rule of law is precisely the same as to evidence, whether the charge be felony or misdemeanor. The crime is different, but there is no difference as to the proof. In felony all are principals for the purposes of proof, and you may give evidence of the acts of the parties where there is a common design, though some of them have stopped short of committing the very acts charged. This is a conspiracy-a feloni-, ous conspiracy-and the rules relating to conspiracy must govern this case. If it can be proved that the defendants were parties to it, the ordinary rule is applicable to the acts and declarations of other conspirators, whether they occurred before or after the time when the defendants joined it.

Welsby and Bodkin, on the same side: The substantive charge in the indictment is that of compassing and intending, &c. The overt acts laid are the assem

bling, meeting, and conspiring. The charge is an act of the mind to be evidenced by the overt acts alleged; and this being so, precisely the same rules are applicable as in cases of conspiracy and treason where the principle and nature of the charge are precisely the same. Now, in Reg. v. Lord Grey, (a) it is laid down

"That every person concerned in any of the criminal parts of the transaction alleged as a conspiracy may be found guilty, though there be no evidence that such persons joined in concerting the plan, or that they ever met the others, and though it is probable they never did, and though some of them only join in the latter parts of the transaction, and probably did not know of the matter until some of the prior parts of the transaction were complete."

That rule is adopted in Reg. v. Murphy.(b) in Leigh's case, (c) on Macklin's prosecution for a conspiracy to drive him from the stage. So in Reg. v. Hammond and Webb, (d) the indictment charged the defendants, who were journeyman shoemakers, with a conspiracy to raise their wages, and evidence was offered on the part of the prosecution of a plan for a combination among the journey men shoemakers, formed and printed several years before, regulating their meetings, subscriptions, and other matters, for their mutual government in forwarding their designs. This evidence was objected to; but Kenyon, L.C.J., said that, if a general conspiracy existed, general evidence might be given of its nature and the conduct of its members, so as to implicate men who stood charged with acting upon the terms of it years after those terms had been established, and who might reside at a great distance from the place where the general plan was carried on.

So in Reg. v. Frost, (e) where a party met which was joined by the prisoner the next day, it was held that directions given by one of the party on the day of their meeting as to where they were to go, and for what purpose, were admissible, and the case was said to fall within Reg. v. Hunt,(f) where evidence of drilling at a different place two days before, and hissing an obnoxious person, was held receivable. The first thing to be proved is the conspiracy; then the defendants must be connected with it; and, when this is done, the acts and declarations of any other conspirators, made at whatever time, are admissible.

(a) 9 St. Tr. 127.

(b) 8 C. & P. 297.

PLATT, B.: Your argument is, that the charge being an act of the mind, established in the indictment by certain overt acts, one of those acts is a conspirital act, and must lead to the same evidence that applies to a conspiracy.

Ballantine: The Attorney-General has treated the case as though a compassing was precisely the same as a conspiracy; but it is very different. There must be two persons at least in a conspiracy. Under this Act one may be tried for a compassing. One of the overt acts charged is no doubt a conspiracy; but the basis of the offence was an act of felony; it might be an act committed by one individual or by several at the same time; but if committed by several at different times one only could be charged as principal, and the rest would be accessories either before or after the fact. Suppose that at any meeting, these prisoners, being present, compassed to levy war against the Queen, the offence would be complete, and the Attorney-General would be estopped from giving evidence of compassing upon any subsequent occasion, upon the principle that no two separate and distinct felonies can be included in one indictment; this shows how necessary it is to bear in mind that the basis of this charge is a felony and not a conspiracy, and that evidence other than such as is applicable to cases of felony cannot be given against these defendants. they are proved to have met and compassed on 1st of August, any thing done subsequently would be evidence to explain that act; but what was done by others on the 20th of July could have no bearing on the question of whether felony was committed twelve days afterwards. If what took place on the 20th of July was brought to the knowledge of the defendants afterwards, and they assented to it, then there might be little ground for the evidence; but merely joining the conspiracy at a subsequent time is no presumption that all previous matters were communicated to them. It is incumbent on the prosecution affirmatively to show that such communication was made and its terms adopted.

If

report; see, also, 1 C. & K. 28.

The Attorney-General referred to Reg v. Frost. (a) There this point was virtually

(a) 4 St. Tr. N.S. 243-6; 9 C. & P. 129.

decided: : a witness was called to prove he was with a party at a Chartist lodge on the 2nd of November, when a person named Reed gave them directions to go to Newport on the following night. The witness did not see the prisoner until he was on his march to Newport on the 4th. Serjeant Ludlow, for the Crown, proposed to ask the witness what Reed said as to the purpose for which they were to go to Newport. Sir F. Pollock and Kelly, for the prisoners, contended that directions given in the absence of the prisoners con'd not be evidence against them. Reed was not upon his trial, and what he said on this occasion was said before the prisoners had joined the scheme, but Tindal, C.J., received the evidence. He said, "I think it admissible; the effect of it is quite another thing." Williams, J., observed that, "although the question was not without difficulty, he thought the evidence ought to be received in accordance with what had been done in previous

cases." He cited Reg. v. Hunt, (a) which came before the Queen's Bench on the question how far Mr. Hunt could be affected by the conduct of other parties two days before the meeting at Manchester (Mr. Hunt having made his first appearance at that meeting), it was held that evidence of drilling at a different place two days before, and hissing an obnoxious person, was receivable.

Parry: No doubt Frost was proved to have been a party to the conspiracy long

"One course in cases of conspiracy is to prove the acts of other parties to the conspiracy, and thus prove the conspiracy, and then that the party charged adopted those acts."

That is the course assumed to be taken. but one main point is left out, namely,

that there is not a tittle of evidence here to prove the adoption.

PLATT, B.: But is not the question of adoption for the jury?

Ballantine: No doubt it is if any evidence is given from which adoption may be inferred, but here there is none. Besides, that case was one of treason; this is a

case of felony; and as has been before observed, the rules that govern evidence in conspiracy and treason totally differ from those applicable to felony.

PLATT, B.: It appears to the Court that the examination may be proceeded with, upon the ground that it is competent to

(a) 1 St. Tr. N.S. 491; 3 B. & Ald. 566.

the parties who intend to prove a conspiracy to exist, either as a primary charge or a secondary one, to go into general evidence of the nature of the combination between the persons who may be assembled together, although the particular defendant was not of the number originally congregated. It falls precisely within the doctrine laid down in Frost's case, and, although the word "adopted" is there used, it is a question for the jury hereafter to say whether that which took place at this meeting was subsequently adopted by the several prisoners. In an indictment for conspiracy it is difficult to prove the defendants' privity without first proving the conspiracy, and the parties may, therefore, go into general evidence of it first, and then implicate the defendants by the part that they took on a subsequent occasion. If it may be done in those cases, it seems to me that, a fortiori, it may be done in this.

WILLIAMS, J. One principle usually governs cases of conspiracy. After the conspiracy of which the defendant is a member is shown to exist, the acts of coconspirators, done in his absence, are to be taken as his acts, because they are the acts of his agents. I think the evidence is admissible, because it is charged that the prisoners joined a certain confederacy. That is charged as one of the overt acts by which only their intention is declared, and therefore it is part of the offence charged. That being so, it is competent to the Crown to give a general history of the nature of the confederacy, provided, prima facie, it is shown that it was joined by the prisoners. It must be a general history of the origin and progress of that confederacy.

Ballantine requested their lordships to reserve the point.

WILLIAMS, J.: Hunt's case is extremely strong against you, and we think we ought not to comply with your request.

Evidence was given that on the evening of the 16th of August, the time which had been fixed for the general outbreak,

a number of armed men were found

assembled in a public house in Webber Street. None of the men had been previously connected by the evidence with the conspiracy, nor did it appear that the house had ever been recognised as a place of meeting.

Ballantine, Parnell, Parry, and Metcalfe, objected that proof of what was done at that house could not be adduced. The these transactions. Not one of them was people there were entirely isolated from brought in contact either with the prisoners or with any persons proved to have been a party to the conspiracy. The