REG. v. MILES. 1890. Practice unlawful consisted of an examined copy of a record of the court of summary jurisdiction sitting at West Ham (a), and of evidence that the offences charged in the first four counts of the indictment related to the same matter as the offences mentioned in the said record. The counsel for the prosecution did not dispute that the Plea of autre- first four counts of the indictment referred to the same matter fois convict as the offence mentioned in the said record, but argued that the Indictment for said record did not disclose any conviction within the meaning wounding- of 24 & 25 Vict. c. 100, s. 45, on the ground that the court had Previous con- neither ordered the defendant to pay a fine nor to be imprisoned; viction sum- and in support of that contention he referred to the case of marily for assault - Defen- Hartley v. Hindmarsh (ubi sup.). The counsel for the defence dant dis- argued that by the 42 & 43 Vict. c. 49, s. 16, sub-sect. 2, express charged on re- power was given to the magistrate, upon convicting a person of good behaviour assault, to discharge him conditionally on his giving security to -24 & 25 Vict. be of good behaviour, and that the 24 & 25 Vict. c. 100, s. 45, c. 100, ss. 42 & must now be read with the section of 42 & 43 Vict. c. 49, above 45; 42 & 43 referred to, and that consequently the case quoted by the counsel for the prosecution was no longer in point. cognisances for Vict. c. 49, s.16. I determined to hear the facts of the case upon the plea of not guilty, and, if necessary, to reserve the point raised on the pleadings for the consideration of the court. The defendant was ultimately convicted on the first four counts of the indictment, and acquitted on the fifth count, and I reserved the question of the sufficiency of the plea in bar for the opinion of this court, and admitted the prisoner to bail pending its decision. The question for the opinion of the court is: Whether the proceedings before the court of summary jurisdiction against the defendant in respect of the assault upon Charles Living were a bar to the proceedings against him at the Central Criminal Court by indictment for the same offence. In the event of the court being of opinion that such proceed (a) A copy of the record accompanied the case, and was as follows: "West Ham Police Court. In the Borough of West Ham. Before the Court of Summary Jurisdiction, sitting at the Police Court, West Hamlane, Stratford, within the said borough, the 28th day of October, 1889. George James Miles (hereinafter called the defendant) is this day convicted for that he on the 26th day of October, 1889, within the borough of West Ham aforesaid, did unlawfully assault and beat one Charles Living. But the Court being of opinion that the said offence was of so trifling a nature that it is inexpedient to inflict any other than a nominal punishment, and the defendant having given security to the satisfaction of this court to be of good behaviour, is discharged. Police Magistrate, Justice of the Peace for the Borough of West Ham aforesaid, W. H. FOWLER. Clerk of the Court of Summary Jurisdiction aforesaid." ings were a bar to the proceedings at the Central Criminal Court the conviction is to be quashed, and judgment entered for the defendant on his special plea; otherwise it is to be affirmed. 24 & 24 Vict. c. 100, s. 44, enacts that: REG. v. MILES. 1890. Practice Plea of autre If the justices, upon the hearing of any such case of assault or battery upon the merits, where the complaint was preferred by or on behalf of the party aggrieved, under either of the last two preceding sections, shall deem the offence not to be fois convictproved, or shall find the assault or battery to have beer. justified, or so trifling as not Indictment for to merit any punishment, and shall accordingly dismiss the complaint, they shall unlawful forthwith make out a certificate under their hands stating the fact of such dismissal, woundingand shall deliver such certificate to the party against whom the complaint was prePrevious conviction sumferred. marily for assault-Defendant dis Sect. 45 enacts that: If any person against whom any such complaint as in either of the last three pre- charged on receding sections mentioned shall have been preferred by or on behalf of the party cognisances for aggrieved, shall have obtained such certificate, or, having been convicted, shall have good behaviour paid the whole amount adjudged to be paid, or shall have suffered the imprisonment -24 & 25 Vict. or imprisonment with hard labour awarded, in every such case, he shall be released c. 100, ss. 42 & from all further or other proceedings, civil or criminal, for the same cause. 45; 42 & 43 Vict.c.49, s.16. The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 16, enacts that: If upon the hearing of a charge for an offence punishable on summary conviction under this Act, or under any other Act, whether past or future, the court of summary jurisdiction think that, though the charge is proved, the offence was in the particular case of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment .. (2) the court, upon convicting the person charged, may discharge him conditionally upon his giving security, with or without sureties, to appear for sentence when called upon, or to be of good behaviour, and either without payment of damages and costs or subject to the payment of such damages and costs, or either of them, as the court think reasonable. Poland, Q.C. (with him Warburton), for the defendant, contended that, both at common law and by statute, the previous conviction before the court of summary jurisdiction was a bar to the present proceedings, which, although they charged the offence in a different manner, were in respect of the same offence: (Reg. v. Elrington, 5 L. T. Rep. N. S. 585; 1 B. & S. 688; 31 L. J. 14, M. C.; Reg. v. Walker, 2 M. & R. 446; Holden and Wife v. King, 46 L. J. 75, Ex.) The argument of the prosecntion amounted to this, that, because the magistrate did not impose a day's imprisonment or inflict a fine of a few pence the case did not come within 24 & 25 Vict. c. 100, s. 45. That section, however, merely means that the defendant "shall have paid " if ordered to pay, or "shall have suffered imprisonment" if imprisonment was actually imposed. The question was set at rest by the subsequent enactment in 42 & 43 Vict. c. 49, s. 16, and the conviction in the court of summary jurisdiction was drawn up in the form prescribed by rule 47 of the rules under that Act. The conviction remains as it was previously, and the Act of 1879 merely imposes a new form of punishment. The case of Hartley v. Hindmarsh (ubi sup.) is distinguishable on two grounds. First, the conviction there, if there was one, was not proved by an examined copy of the record, and in the second REG. v. MILES. 1890. Practice unlawful place it does not appear from the reports of the case that there was ever any conviction at all. In Wemyss v. Hopkins (L. Rep. 10 Q. B. 378) it was held that the fact that a person had been convicted by justices under one Act of Parliament for what amounted to an assault was a bar to a conviction under another Plea of autre- Act for the same assault; the rule at common law being, that fois convict where a person has been convicted and punished for an offence Indictment for by a court of competent jurisdiction, the conviction is a bar to wounding- all further proceedings for the same offence. Under sect. 44 of Previous con- 24 & 25 Vict. c. 100, there was power before the Summary Jurisviction sum- diction Act to give a certificate of dismissal. Here, however, marily for as- the magistrate thought it right to convict, but imposed a nominal punishment. If, then, a certificate of acquittal was a bar to charged on re- subsequent proceedings, à fortiori must a conviction be a bar. cognisances for good behaviour In order to support their contention the prosecution must rely -24 425 Vict. upon the strict words of the statute, and not upon good sense or c. 100, ss. 42 & law. sault- Defen dant dis 45; 42 & 43 Vict. c. 49,s. 16. Lockwood, Q.C. (with him Besley), for the prosecution, contended that what had taken place before the magistrate was no bar to the subsequent proceedings, for there had been no punishment imposed or penalty inflicted. The magistrate did not act under 24 & 25 Vict. c. 100, at all, but under the Summary Jurisdiction Act, 1879. Under the former statute he had no power to impose a nominal punishment, and yet the defence had to rely upon the provisions of that statute, because there was no bar independently of the express statutory provision, otherwise the provision would have been unnecessary. [HAWKINS, J.-What is there in the old law to prevent the magistrate from requiring the defendant to receive sentence? There has been no judgment on the conviction before him.] It is to be presumed that the security would be to be of good behaviour, and in default to come up for judgment; and if the defendant is at large without any judgment having been passed upon him, he cannot avail himself of the bar, for he cannot say he has been punished, and he cannot say that the matter was too trivial for punishment, for he has not the necessary certificate. The protection which was held to exist in Reg. v. Elrington is a statutable one, and there is no protection at common law where the offence in respect of which subsequent proceedings are taken is a different offence. [Lord COLERIDGE, C.J.: If a person is acquitted on a graver charge which includes a lesser charge, that supports a plea of autrefois acquit in respect of the lesser offence: (Reg. v. Bird, 5 Cox C. C. 11; 2 Den. C. C. 94; 20 L. J. 70, M. C.; 15 Jur. 193; T. & M. 437.)-POLLOCK, B.: I should like you to deal with the common law principle. In Reg. v. Walker (2 M. & Bob. 446) Coltman, J. says: "I see no difference between a conviction and an acquittal;" and that is cited with approval by Cockburn, C.J. in Reg. Elrington (ubi sup.).] The case of Hartley v. Hindmarsh shows what kind of conviction was contemplated by the courts in those days as a bar. REG. V. MILES. 1890. Practice Previous con riction sum-", marily for assault - Defen 45; Poland, Q.C. in reply.-It is a fundamental principle of law that a man shall not be twice tried for the same cause; and the statute merely re-enacted what was the common law, and applied the principle applicable to criminal cases for the purposes of the civil law. Here the defendant was either convicted or acquitted. If he forfeited his recognisances he might still Plea of autrebe brought before the magistrate and punished; and he clearly fois convictought not to be in worse position than he would have been in if Indictment for unlawful he had asked for punishment rather than be allowed to go free. woundingFeb. 8.-The following judgments were read :HAWKINS, J.-The indictment in this case contains five counts. It is, however, only necessary to notice the first, second, third, and fourth, for upon the fifth the defendant was acquitted dant disgenerally upon a plea of not guilty. The first count charged an charged on reindictable offence under sect. 20 of 24 & 25 Vict. c. 100, good behaviour cognisances for namely, that on the 26th day of October, 1889, at the parish of -24 & 25 Vict. West Ham, the defendant unlawfully and maliciously did wound c. 100, ss. 42 & one Charles Living. The second count charged an indictable vict.c. 49,s.16. 42 & 43 offence under the same section, namely, that on the same day, and at the same place, the defendant unlawfully and maliciously did inflict grievous bodily harm in and upon the said Charles Living. The third count charged an indictable offence under sect. 47 of the same Act, namely, that on the same day, and at the same place, the defendant unlawfully did assault the said Charles Living, and beat, wound, and ill-treat him, thereby occasioning to him actual bodily harm. The fourth count charged an indictable offence under the same section, namely, that on the same day at the same place the defendant unlawfully did assault the said Charles Living, and beat, and wound, and illtreat him. To these four counts the defendant pleaded not guilty, and also a plea in bar founded upon the forty-fifth section of the same Act of Parliament, a copy of which plea forms part of the case. The material allegations contained in that plea are, that on the 28th day of October, 1889, the defendant was, upon the complaint of the said Charles Living, duly convicted before the court of summary jurisdiction sitting in and for the borough of West Ham, " for that he, the defendant, on the 26th day of October, 1889, did unlawfully assault and beat the said Charles Living, and that the said court, being of opinion that the said offence was of so trifling a nature that it was inexpedient to inflict any other than a nominal punishment, the defendant, having given security to the satisfaction of the said court to be of good behaviour, was discharged." The plea then alleges that the "assault and battery" of which the defendant was so convicted, and the wounding, assault, and battery in the first four counts of the indictment mentioned, are one and the same assault and battery, and not other and different. No question arises on the form of the reply, which substantially puts in issue the validity of the plea. On the trial before the Recorder of London, the defendant was found guilty upon each of the said counts, subject to REG. V. MILES. 1890. Practice the validity and proof of his 'special plea, in support whereof the record of the convictions before the court of summary jurisdiction was put in, and it must be taken as found by the jury upon due proof that the first four counts referred to the same matter as the offence mentioned in the record of the summary conviction. Plea of autre. The enactments under which the plea in question is pleaded are fois convict sects. 41 and 45 of the statute relating to offences against the Indictment for person (24 & 25 Vict. c. 100). Sect. 42 enacts that where any unlawful wounding person shall unlawfully assault or beat any other person, two con- justices of the peace may, upon complaint by or on behalf of the viction sum- party aggrieved, hear and determine such offence, and upon sauit-Defen. conviction such justices may either fine the offender a 45; 42 43 dant dis- not exceeding 51., or commit him to prison for a term not charged on re- exceeding two months. The assaults mentioned in this cognisances for section are in sect. 43 referred to as common assaults and good behaviour -24 & 52 Vict. batteries." Then comes sect. 44, which enacts: "If the c. 100, ss. 42 & justices upon the hearing of any such case of assault or battery Vict. c. 49, s.16. upon the merits shall deem the offence not to be proved, or shall find the assault and battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint they shall forthwith make out a certificate under their hands stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred." By sect. 45 it is enacted: "If any person against whom such complaint shall have been preferred by or on the behalf of the party aggrieved, shall have obtained such certificate, or, having been convicted, shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment, or imprisonment with hard labour, awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause." The record of the proceedings before the justices is in these terms: "West Ham, Police Court in the borough of West Ham, before the court of summary jurisdiction, sitting at the police-court, West Ham-lane, &c., the 28th day of October, 1889. George James Miles (hereinafter called the defendant) is this day convicted, for that he on the 26th day of October, 1889, within the borough of West Ham, did unlawfully assault and beat one Charles Living. But the court being of opinion that the offence was of so trifling a nature that it is inexpedient to inflict any other than a nominal punishment, and the defendant having given security to the satisfaction of this court to be of good behaviour, is discharged." This conviction was under the hand and seal of the police magistrate for the borough of West Ham. It is obvious that, if the defence rested solely upon the provisions of the 24 & 25 Vict. c. 100, above set forth, grave objections might be made to its validity, for the case was not dismissed, and, even had it been so, no certificate of dismissal was given to the defendant. Moreover, although the record alleges that the defendant was convicted, and intimates the inexpediency of inflicting more |