against each WHERE an indictment charges an ordinary conspiracy, it is not necessary Individual acts to prove a common design between the defendants before proving the acts may be proved of each defendant, for the acts of each defendant are only evidence party before against himself, and may be the only means of establishing the conspiracy. proving a comIn high treason the overt act of one is the overt act of all, and therefore a common design must in each case precede the proof of individual acts. (Reg. v. Brittain and another, 3 Cox's Crim. Cas. 76.) mon design. Constable. constable, appointment of. A DEPUTY parish constable, nominated by his principal, and approved Deputy parish of by the justices at special sessions, may be sworn in and act as such deputy, although his name is not contained in the list made out by the inhabitants in vestry assembled, and returned to the justices as the list of persons qualified to serve such office pursuant to the stat. 5 & 6 Vict. c. 109. (Reg. v. Booth, 3 New Sess. Cas. 303.) Contagious Diseases (see “Nuisances,” post, “Animals,” ante.) N give a form of conviction, yet if it do not set Conviction. See "Administration of Justice Act, No. 2," ante, “Master and Though a statute WHERE a statute gives a form of conviction not fully describing the offence, the conviction nevertheless must fully describe it, but in the part which awards the penalty it is sufficient to follow the statute form, although the enacting part of the statute gives part of the penalty to the informer, and the form is not so drawn as to show who he is. (Reg. v. Johnson, 8 Q. B. 102.) out an offence, a conviction in that form will not be sufficient. Conviction for an assault bad for directing the penalty to be paid to the wrong party. By stat. 9 Geo. 4, c. 31, s. 27, it is enacted, that in cases of assault against the person it shall be lawful for two justices "to hear and determine such offence, and the offender upon conviction thereof before them shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with the costs (if ordered), the sum of five pounds, which shall be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place in which the offence shall have been committed, to be by such overseer or officer paid over to the use of the general county rate of the county, riding, division, in which such parish, &c., shall be situate." Sect. 26 enacts that no conviction under this act shall be quashed for want of form. A conviction under sect. 27 ordered the penalty to be paid to the treasurer of the county in which the offence was committed, and upon this it was held that the conviction was bad in this respect, and no defence to an action of trespass against the convicting justice. (Chaddock v. Wilbraham and another, 3 New Sess. Cas. 226.) Costs (see "Administration of Justice Acts, Nos. 1 & 2,” ante, 66 Criminal Justice (Amendment.) 11 & 12 VICT. BY the 11 & 12 Vict. c. 46, intituled "An Act for the Removal of Defects c. 46. in the Administration of Criminal Justice" (passed 14th August, 1848), after reciting that the technical strictness of criminal proceedings might in some instances be further relaxed, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence: and that it is expedient to make further provision for the effectual prosecution of accessories before and after the fact of felony: and that it is also expedient that an accessory before the fact to felony should be liable to be indicted, tried, convicted, and punished in all respects like the principal, as is now the case in treason and in all misdemeanors: it is enacted, from and after the passing of this act, if any person shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon.” Accessories before the fact in the same Trial and conviction of acces sories after the fact. "that Sect. 2. "And whereas an accessory after the fact to felony can at present be tried only along with the principal felon, or after the principal felon has been convicted, and not otherwise, which is sometimes productive of a failure of justice: be it therefore enacted, that from and after the c. 46. passing of this act, if any person shall become an accessory after the fact 11 & 12 VICT. to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, he may be indicted and convicted either as an accessory after the fact to the principal felony together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony if convicted as an accessory may be punished, and the offence of such person, howsoever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon in the same manner as the act by reason of which such person shall have become an accessory had been committed at the same place as the principal felony: provided always, that no person who shall be once duly tried for any such offence, whether as an accessory after the fact or as for a substantive felony, shall be liable to be again indicted or tried for the same offence." of counts in property. Sect. 3. "And whereas, according to the present practice of courts of As to addition criminal jurisdiction, it is not permitted in an indictment for stealing pro- indictments for perty to add a count for receiving the same property knowing it to have stealing and been stolen, or in an indictment for receiving stolen property knowing it receiving stolen to have been stolen to add a count for stealing the same property, and justice is hereby often defeated: be it therefore enacted, that from and after the passing of this act, in every indictment for feloniously stealing property, it shall be lawful to add a count for feloniously receiving the same property, knowing it to have been stolen, and in any indictment for feloniously receiving property, knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing the same property: and where any such indictment shall have been preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property or of receiving it knowing it to have been stolen ; and if such indictment shall have been preferred and found against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving it knowing it to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving it knowing it to have been stolen." (a) may cause certain cases. Sect. 4. "And whereas a failure of justice frequently takes place in Courts of oyer criminal trials by reason of variances between writings produced in evi- and terminer dence and the recital or setting forth thereof in the indictment or informa- indictments to tion, and the same cannot now be amended at the trial, except in cases be amended in of misdemeanor; for remedy thereof, be it enacted, that it shall and may be lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit to do so, to cause the indictment or information for any offence whatever, when any variance or variances shall appear between any matter in writing or in print produced in evidence and the recital or setting forth thereof in the indictment or information whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had appeared." (b) (a) Under this section it will be prudent in all larcenies to join counts for stealing and receiving. Upon such an indictment against one prisoner, he may be found guilty of either, and against two or more, some may be found guilty of stealing and others of receiving. (b) This power already exists in misdemeanors. It is now very properly extended to felonies. It should be observed that this power of amendment is given only to a "court of oyer and terminer and general gaol delivery." Hence, it does not extend to the courts of quarter sessions. 11 & 12 VICT. c. 46. Not to extend to Sect. 5. "Provided always, and be it enacted, that nothing in this act contained shall extend to Scotland." 11 & 12 VICT. c. 78. Questions of law may be reserved at sessions of the peace for consideration of judges. Questions reserved to be certified to the judges. Criminal Law (Amendment.) BY the 11 & 12 Vict. c. 78 intituled "An Act for the further Amendment of the Administration of Criminal Law" (passed 31st August, 1848), after reciting that it is expedient to provide a better mode than that now in use of deciding any difficult question of law which may arise in criminal trials in any court of oyer and terminer and gaol delivery, and to make further amendments in the administration of the criminal law, it is enacted, "that when any person shall have been convicted of any treason, felony, or misdemeanor before any court of oyer and terminer or gaol delivery, or court of quarter sessions, the judge or commissioner, or justices of the peace before whom the case shall have been tried may, in his or their discretion, reserve any question of law which shall have arisen on the trial for the consideration of the justices of either bench and barons of the exchequer; and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided, as he or they may think fit; and in either case the court, in its discretion, shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case may be." (a) Sect. 2. "And be it enacted, that the judge or commissioner or court of quarter sessions shall thereupon state, in a case signed in the manner now usual, the question or questions of law which shall have been so reserved, with the special circumstances upon which the same shall have arisen; and such case shall be transmitted to the said justices and barons; and the said justices and barons shall thereupon have full power and authority to hear and finally determine the said question or questions, and thereupon to reverse, amend, or confirm any judgment which shall have been given on the indictment or inquisition on the trial whereof such question or questions have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the said justices and barons the party convicted ought not to have been convicted, or to arrest the judgment, or order judgment to be given thereon at some other session of oyer and terminer or gaol delivery, or other sessions of the peace, if no judgment shall have been before that time given, as they shall be advised, or to make such other order as justice may require; and such judgment and order, if any, of the said justices and barons, shall be certified under the hand of the presiding chief justice or chief baron to the clerk of assize or his deputy, or to the clerk of the peace or his deputy, as the case may be, who shall enter the same on the original record, in proper form; and a certificate of such entry, under the hand of the clerk of assize or his deputy, or the clerk of the peace or his deputy, as the case may be, in the form, as near as may be, or to the effect mentioned in the schedule annexed to this act, with the necessary alterations to adapt it to the circumstances of the case, shall be delivered or transmitted by him to the sheriff or gaoler in whose custody the person convicted shall be; and the said certificate shall be a (a) It will be in the discretion of the court, after it has consented to reserve the question, either to respite execution or postpone the judgment until the question is decided. But in either case the prisoner may be committed to prison or admitted to bail at the discretion of the court. c. 78. sufficient warrant to such sheriff or gaoler, and all other persons, for the 11 & 12 VICT. execution of the judgment, as the same shall be so certified to have been affirmed or amended, and execution shall be thereupon executed on such judgment, and for the discharge of the person convicted from further imprisonment, if the judgment shall be reversed, avoided, or arrested, and in that case such sheriff or gaoler shall forthwith discharge him, and also the next court of oyer and terminer and gaol delivery or sessions of the peace, shall vacate the recognizance of bail, if any; and if the court of oyer and terminer and gaol delivery or court of quarter sessions shall be directed to give judgment, the court shall proceed to give judgment at the next sessions." (b) Sect. 3. "And be it enacted, that the jurisdiction and authorities by Quorum of this act given to the said justices of either bench, and barons of the judges; their judgments to be exchequer, shall and may be exercised by the said justices and barons, or delivered in open five of them at the least, of whom the Lord Chief Justice of the Court of court. Queen's Bench, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron of the Court of Exchequer, or one of such chiefs at least, shall be a part, being met in the Exchequer Chamber or other convenient place; and the judgment or judgments of the said justices and barons shall be delivered in open court, after hearing counsel or the parties, in case the prosecutor or the person convicted shall think it fit that the case shall be argued, in like manner as the judgments of the superior courts of common law at Westminster or Dublin, as the case may be, are now delivered." back for amend Sect. 4. "And be it enacted, that the said justices and barons, when a Case or certificase has been reserved for their opinion, shall have power, if they think cate may be sent fit, to cause the case or certificate to be sent back for amendment, and ment. thereupon the same shall be amended accordingly, and judgment shall be delivered after it shall have been amended.” is reversed on Sect. 5. "And be it enacted, that whenever any writ of error shall be When judgment brought up upon any judgment on any indictment, information, present- writ of error, ment, or inquisition, in any criminal case, and the court of error shall record may be reverse the judgment, it shall be competent for such court of error either remitted to court to pronounce the proper judgment or to remit the record to the court judgment. below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment, or inquisition." below for Sect. 6. "And be it enacted, that every person who shall forge or Penalty for alter, or shall offer, utter, dispose of, or put off, knowing the same to be forgery. forged or altered, any certificate of or copy certified by a chief justice, or any certificate of or copy certified by a clerk of assize or his deputy, or the clerk of the peace or his deputy, as the case may be, with intent to cause any person to be discharged from custody, or otherwise prevent the due course of justice, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding ten years, or be imprisoned for any term not exceeding three years, with or without hard labour and solitary confinement, both or either, at the discretion of the court before which he shall be tried." Sect. 7. "And be it enacted, that this act shall not extend to Scot- Act not to extend land." to Scotland. Sect. 8. "And be it enacted, that this act may be amended or repealed Act may be by any act to be passed during this present session of Parliament." (b) The practice will be as follows: 1st. The judge or court will state in writing a case, setting forth the question of law that has been reserved, with the special circumstances upon which the same shall have arisen. 2nd. The case so stated will be signed by the judge or chairman. amended, &c. |