Mitigation of penalties. General forms of mitigation of penalty, &c. Distribution of penalties. To be distributed [or, paid, as the case may be] according to the form of the statute in that case made and provided.] The mitigation of penalties is not of course, but depends upon the power given to justices by particular acts of parliament, to exercise their discretion in this case, within certain bounds, in the instances mentioned in those acts. It is common to entrust the convicting magistrates with a discretionary power of mitigating penalties. The extent to which this authority may be exercised, in any instance, must depend entirely on the power given in each particular case by statute; but, whatever it be, if exercised, it ought to be so stated in the conviction (Paley, Conv. 154.); for otherwise it cannot appear to the court, upon appeal, how, or in what degree, the magistrate has exercised the authority with which he was invested. Thus the conviction must first adjudicate the whole penalty inflicted by the statute, and then, in a separate sentence, state to what inferior sum the justice has mitigated it; for otherwise, it could not appear that he had exercised his authority, in both points, according to the terms of the statute. As, for example, (after the formal part of the conviction, say), "And I [or, we] do award and adjudge that the said A. B.hath forfeited for his said offence the sum of -1. of lawful money of Great Britain, the one moiety thereof to the use of and the other moiety to (the informer, or as the statute directs), according to the form of the statute, &c. And I the said justice, seeing cause to mitigate or lessen the said penalty, do, at the request of the said defendant, according to the statute, mitigate and lessen the same to the sum of -1. over and above the reasonable costs and charges of the said informer, by him laid out and expended in and about the said information, &c. to be distributed, and go, and be applied, one moiety thereof to, &c. (as before) and the other moiety to, &c.; and which costs and charges of the said A. B. the said informer, I [or, we] do allow, assess, and adjudge to him at the sum of - -l. of like lawful money, according to the statute in that case made and provided." Talf. Dick. Sess. 595, 596. It may be doubted whether the general form given by stat. 3 G. 4. c. 23. (antè, p. 695.), "to be distributed according to the form of the statute in such case made and provided," will be sufficient in instances where, from the nature of the case, these general terms of adjudication do not suffice to ascertain that which the express provisions of the statute, on which the conviction proceeds, require to be ascertained; as, for instance, where a part of the penalty, the amount to be fixed by the magistrate in his discretion, is given to the party grieved, or where the person to whom the penalty is to be paid is to be ascertained or selected by the justice. (a) Thus, by the annual Mutiny Act, 26 G. 3. c. 10., the penalty for not receiving a soldier, according to billet, was directed to be applied, in the first place, to make satisfaction to the soldier for his expenses, and the remainder to the overseers of the parish. A (a) Even before the passing of stat. 3 G. 4. c. 23. it was held, that wherever the statute applies the penalty with such certainty, that the judgment can be unequivocally carried into effect, it was sufficient to award the penalty to be distributed as the act directs: as where the statute orders the penalty to be divided equally between the poor of the parish and the party grieved. R. v. Barrett, 1 Salk. 383. Paley, Conv. 168. conviction under this act, adjudging only that the defendant had forfeited 5., " to be disposed of as the law directs," was deemed irregular: for, in that case, the distribution of the penalty was held to be a necessary part of the judgment, which ought to appear on the record, not merely in the general terms of the act, but specifying the exact sum. R. v. Dimpsey, 2 T. R. 96. Paley, 169. (a) Another case arose on the statute 42 G. 3. c. 119. § 5., prohibiting unlawful lotteries, which act directs the penalty to be applied, one-third to the king, one-third to the informer, and the other third to the person apprehending or securing the offender. The conviction in question stated the offender to have been brought before the convicting magistrates by W. C. and J. P., two of the beadles of the parish. The adjudication, after declaring the defendant to be convicted of the offence, proceeded in these terms, viz. “ For which said offence I do adjudge her to forfeit and pay the sum of 1007., to be applied and distributed, when paid, as the law doth direct." This case was very fully considered, upon the objection, that the person entitled to the last third of the penalty, for apprehending and securing the offender, should have been distinctly named and pointed out by the magistrate. It was contended, in answer to the objection, that the persons by whom the offender was stated to have been brought before the magistrates," sufficiently answered that description, or, if not, that the unappropriated portion remained in the crown. But the court decided, that the objection was well founded; that the application of the penalty should have appeared distinctly upon the face of the conviction; and that it was bad, for the uncertainty in the objects of the distribution. R. v. Seale, 8 East, 568. Paley, Conv. 170. By stat. 12 G. 3. c. 61. § 18., two justices may adjudge a forfei. ture of gunpowder, conveyed in larger quantities than those allowed by the act, to the person seizing the same. But in order that such adjudication may be good, the conviction must shew that the person to whom the forfeiture is adjudged is the person who seized; and its being stated in the adjudicating part, that the gunpowder is forfeited" to the use of J. C., the person who seized the same," will not supply the omission. R. v. Smith, 5 M. & S. 133. Adjudication of forfeiture of thing seized to the person seizing the same. An adjudication of part of the penalty to the poor of a town- Adjudication ship, where the statute appropriates it to the poor of the parish, to the poor of is bad. (b) This was so decided in the case of a conviction on the the parish. Mutiny Act, 35 G.3. c. 6. § 68., the 85th section of which orders, that the penalty, after making satisfaction as therein ordered, shall be paid to the overseers of the parish where the offence is committed. The act also prescribes a short form of conviction, concluding thus: " And I do hereby declare and adjudge, that the (a) Another case occurred (R. v. Priest, 6 T. R. 538.) on the Mutiny Act, 35 G. 3. c. 6., which contained a similar provision, as to making satisfaction to the soldier aggrieved, and prescribed a short form of conviction, concluding, "And I do hereby declare and adjudge, that the said A. B. hath forfeited the sum of -l. for his offence aforesaid, to be distributed as the law directs, according to the statute in such case made and provided." The court gave judgment on another ground (see post, p. 718.); but Lord Kenyon, with reference to the point in question, said, "Where a form of conviction is prescribed by a statute, it is most safe, in general, to adopt the very words used: but, taking the whole of this act of parliament together, the legislature could not intend that there should be a literal adherence to the form prescribed." (b) But see R. v. Wyatt, 2 Ld. Raym. 1478. 18 G. 3. c. 19. Awarding costs. Sealing. Date. said A. B. hath forfeitedthe sum of -—7. for his offence aforesaid, to be distributed as the law directs, according to the statute in that case made and provided."-In the case in question, the offence was stated "at Ullesthorpe ;" and the judgment was in these terms, viz. "I do hereby adjudge and direct, that out of the said sum of 40s. so forfeited, 15s. be applied in making satisfaction to, &c.; and that 25s., the remainder, be paid to the overseers of the township of Ullesthorpe aforesaid, for the use of the poor of the said township, according to the statute," &c. It was alleged and admitted to be the fact, but it did not appear upon the face of the conviction, that Ullesthorpe was a township supporting its own poor. But the court, without admitting that, if the fact had so appeared, it would have supported the conviction, were clearly of opinion that, as it stood, it could not be supported. R. v. Priest, 6 T. R. 538. In a conviction of defendant for causing to be acted at a certain place called the Coburg Theatre, in the parish of St. Mary, Lambeth, for gain and reward, a certain entertainment of the stage called "Richard the Third; the evidence stated, that the Coburg Theatre was in the parish of Lambeth, and the adjudication of the penalty was to the poor of the parish of St. Mary, Lambeth: and it was held, that this was no variance, it not appearing that there were two distinct parishes so named. R. v. Glossop, 4 B. & A. 616. By stat. 18 G. 3. c.19., where any complaint shall be made before any justice or justices of the peace, and any warrant or summons shall issue in consequence of such complaint, then it shall be lawful for such justice or justices, who shall have heard and determined the matter of the said complaint, to award such costs to be paid by either of the parties, and in manner and form as to him or them shall seem fit, to the party injured. (a) Given under my hand (or, our hands, &c.) and seal, the day of in the year of our Lord.] A conviction should be under the hand and seal of the magistrate; and a justice ought to give the defendant a copy of the conviction, if he demands it: it is a record (b), and he is entitled to it. R. v. Midlam, 3 Burr. 1720. An impossible or an incongruous date, if the conviction be complete without it, may be rejected as surplusage, and will not vitiate. As, if the justice in the concluding part states that he has, in witness of conviction, put his hand and seal on a day prior to that on which the offender was convicted, and the offence committed. R. v. Picton, 2 East, 196. But the date of the conviction is material, when the statute, on which it is founded, requires that the conviction shall take place within a prescribed period, after the offence committed. In such a case, the date must be within that period, when compared with the date alleged for the offence. Paley, Conv. 174. R. v. Bellamy, 1 B. & C. 500. (a) For the manner of levying such costs, and other regulations made by 18 G. 3. c. 19. see post, tit. Costs; where also the Forms, given by the statute, of awarding Costs of the warrant of Distress, and Commitment upon nonpayment, will be found. (b) A record is a memorial or remembrance in rolls of parchment. 1 Inst. 260. -In general, I think, a conviction ought to be upon parchment, but if on paper it is good in law, unless the statute directs otherwise. (Note to former edition.) (b) Where a Form is given by the Statute on which the Conviction proceeds. Almost every modern penal statute authorizing summary convictions (including Peel's Acts, Lord Lansdowne's Act, and the Game Act,) provides a form of conviction for offences against the act, and enacts that the convicting justice may cause the conviction to be drawn up in the given form, or in any other form of words to the same effect, as the case may require. offence. But it must be observed, that these forms almost invariably Accuracy releave a blank for the specification of the offence. And in filling quired in deup such blank, the same accuracy and certainty is required, in scribing the describing the offence, as in the information, in cases where no particular form of conviction is provided. See R. v. Nield, 6 East, 419. R. v. Hazell, 13 East, 139. Ex parte Hawkins, 2 B. & C. 31. (stated antè, p. 701, 702.) Where the act (as is usually the case) merely declares that the Stating more justice may draw up the conviction in the following form, or in than the given any other form of words to the same effect, there exemplified, form requires then, provided the conviction contains every thing required by will not vitiate. the form given, it will not be vitiated by unnecessarily stating more than is required. Thus, on stat. 31 G. 3. c. 21. which, by § 4., directs the conviction to be drawn up according to a form there specified, or to the effect thereof, the magistrates having, besides all the requisite particulars, unnecessarily inserted what was not required by the specific form, viz. the information, summons, appearance, and names of the witnesses, but not the evidence; it was objected, that the conviction was neither good at common law, for want of setting out the evidence, nor by the statute, as it did not strictly follow the form there directed; but the objection was over-ruled, because it was held, that, as the conviction contained all that the form required, it was not invalidated by stating what was unnecessary. R. v. Jefferies, 4 T. R.768. Paley, Conv. 48. (a) It is not unusual that the statutes which provide a particular form, proceed to enact that no conviction under it shall be set aside in consequence of "any defect of form." Yet, notwithstanding these or the like words, every fact material for the proper description of the offence must be stated; for the omission will not be cured by reference to such a clause. Thus, where a conviction omits to state that the defendant knowingly did the act charged, where the scienter is essential to constitute the offence, such a defect is not aided by a proviso in the statute, that "no conviction for any offence in the act shall be set aside for want of form, or through the mistake of any fact, circumstance, or other matter, provided the material facts alleged were proved." R. v. Jukes, 8 T. R. 536. (antè, p. 706.) So a conviction under 48 G. 3. c. 143., upon an information for selling ale or beer without a licence, was held bad for uncertainty, notwithstanding the evidence applied to selling ale alone, and the 3d sect. of the act declared, that in all cases where it (a) But if any particular form be prescribed as indispensably necessary, that must be strictly complied with. 4 T. R. 769. (See also Davison v. Gill, 1 East, 79. Goss v. Jackson, 3 Esp. 198.) What defects are cured by a provision, that a conviction shall not be set Walsh, antè, Conviction to be returned to the session. May be returned in a more formal shape than when first drawn up. A conviction may be drawn up after the penalty has been levied. appeared by the conviction that the defendant had appeared and pleaded, and the merits had been tried, no advantage should be taken of any defect of form. For the court considered that this was not a mere formal objection, but a matter of substance. R. v. North, 6 D. & R. 143. (See the judgment of Bayley J., antè, p.703.) II. Of the Proceedings subsequent to Convictions ; and herewith, of enforcing and resisting them. (1.) Of drawing up and returning the conviction, and giving a copy to the defendant. (2.) Of enforcing convictions. (3.) Of resisting convictions. II. (1.) Df Drawing up and returning the Conviction, and giving a In all cases a justice of the peace ought to return a conviction by him to the sessions, whether the party appeal or not, or whether an appeal is or is not given, that the crown may not be deprived of its share of forfeitures. R. v. Eaton, 2 T. R. 285. This is sometimes further enforced by the express direction of the Acts themselves which impose the penalties: as in the Game Act, 1 & 2 W. 4. c. 32. § 43., and Peel's Acts, 7 & 8 G. 4. c. 29. § 74., and 7 & 8 G. 4. c. 30. § 40. If the justice, after receiving due notice of appeal, neglects to return the conviction, whereby the party is prevented from prosecuting his appeal, the justice is liable, in an action on the case, for the special damage. Proser v. Hyde, 1 T. R. 414. Paley, Conv. 195. R. v. Barker, 1 East, 185. On a motion for a criminal information against a magistrate, for returning to a writ of certiorari, a conviction of a party in another and more formal shape than that in which it was first drawn up, and of which a copy had been delivered to the party convicted by the magistrate's clerk, Ld. Kenyon C. J. said," If the magistrate has done no more than return the conviction in a more formal shape, instead of sending it up in the informal manner in which it was first drawn, and supposing that the facts as they really happened will warrant him in the return he has now made, I am of opinion, that it was not only legal but laudable in him to do as he has done; and he would have done wrong if he had acted otherwise. It is a matter of constant experience for magistrates to take minutes of their proceedings without attending to the precise form of them at the time when they pronounce their judgment, to serve as memorandums for them to draw up a more formal statement of them afterwards, to be returned to the sessions; and it is by no means unusual to draw up the conviction in point of form after the penalty has been levied under the judgment, nor is there any legal objection to this method, provided the facts will warrant them in stating what they do. It is no answer to say, that a party convicted may be thereby induced to incur an unnecessary expense in suing out a certiorari, to get rid of an informal conviction; for a mere informality in the manner of drawing up a conviction ought not to |