each count thereof respectively mentioned, be imprisoned in the gaol of Springfield, in &c., six calendar months; each and all of such several terms of imprisonment to commence on the same day and end on the same day; and that, for the said offence in the first count of the first of the said indictments mentioned, the said John Keen do also pay a fine to our sovereign lady the Queen of £50, of &c., and do also enter into his own recognizance in the sum of £100, and find two sureties in the sum of £50 each, for his good behaviour towards our lady the Queen and all her liege subjects, and especially towards Sophia Keen, his wife, for the further term of twelve calendar months from the expiration of this sentence; and be further imprisoned in such gaol until he pay such fine, and until such recognizances shall be entered into; and the said John Keen is forthwith committed &c." The grounds of error assigned were, first, that a court of quarter sessions has no authority to respite a judgment from one sessions to another; and that the judgment at the Midsummer sessions was, therefore, without jurisdiction. Secondly, that it appeared on the record that the sessions had pronounced two distinct judgments, and that the latter, therefore, was without jurisdiction. Peacock, for the plaintiff in error.-First, as to the second point. The case of Regina v. Dunn (a) shows, that where justices sentence a defendant to be committed to prison in default of his entering into recognizances to keep the peace, that is a part of their judgment, and may be reviewed by this Court; and in Rex v. Bourne (b), it was held, that a judgment of an inferior court, though clearly erroneous, was so far final that it could not be (a) 12 A. & E. 599. (b) 7 A. & E. 58. 1847. ΚΕΕΝ v. The QUEEN. 1847. KEEN v. The QUEEN. sent back to them to be reconsidered, and that the defendant must be discharged. If, then, those cases are to be considered as authorities, and the court of quarter sessions had already pronounced a judgment in this case when the defendant below (plaintiff in error) had pleaded guilty, and had entered into recognizances, this Court will order him to be discharged. [Patteson, J.It was on the defendant's (plaintiff in error) entering into recognizances that the sessions respited their judgment; judgment would have been given at the time, if he had not entered into them.] The words on the record, "it is considered and adjudged," would shew that a judgment was given. In Rex v. Kenworthy (a), it was held, that the words "it is ordered" alone, amounted to an order only, and not a judgment; and it was said that the judgment was incomplete for want of the words "it is considered." [Erle, J.-The introduction of those words, "considered and adjudged," cannot alter the legal effect of what took place in fact. We must look at the whole record, and by that it plainly appears that the judgment was respited.] Then, as to the first point: It is submitted that a court of quarter sessions has no power to respite their judgment from one sessions to another. In Dickenson's Quarter Sessions, 5th edit., p. 61, it is said, "Justices may, before the actual close of the sessions, on whatever day, alter their orders of sentences, but they cannot do so after the session is closed, e.g., at the next sessions." "Again, if an indictment cannot be disposed of after verdict of guilty, owing to the justices present being equally divided in opinion as to the sentence, or from any other cause operating on the court, so that no judgment is given, an adjournment of the session should be entered by the clerk of the peace to some day previous to or not (a) 1 B. & C. 711. later than that appointed for the next ensuing original general or quarter sessions, so as to enable the justices to reconsider the question." "But if no such adjournment of the sessions be made (for it cannot be made of the matter itself only), no subsequent session has any power to make an order in the case." And the case of Rex v. Grince is cited from Vin. Abrid., vol. 19, p. 358. [Coleridge, J.-The power of adjourning appeals is given to the sessions by statute in cases of insufficient notice; but could not they do so on other grounds, for instance, the absence of a material witness? We adjourn cases from one assize to another, though we sit under a different commission.] That case is especially provided for by the 1 Edw. 6, c. 7, s. 2. Marsh, contrà.-In Rex v. Bourne (a) and Regina v. Dunn (b) no point arose as to the power of one quarter sessions to deal with the record of a previous sessions; they do not apply to either of the questions raised by the plaintiff in error. As to the general power of quarter sessions to postpone till a subsequent sessions their judgment on an indictment tried at a former, the argument on the other side rests on the authority of Dickenson. The cases, however, there cited, do not in any way support the passage which has been quoted. Rex v. Cuckfield (c), is one; there, and in Pridgeon's case (d), which is another, there had been no adjournment, and consequently one sessions was held incompetent to reverse what had been done by another. In Rex v. Grince (e), a judgment was held bad because it was passed on a day subsequent to the holding of the next sessions after that from which the case had been 1847. KEEN v. The QUEEN. (a) 7 A. & E. 58. (b) 12 A. & E. 599. (d) Cro. Car. 341. (c) 2 Salk. 477. 1847. KEEN v. The QUEEN. may adjourned. Rex v. Fowler (a), however, shews that a subsequent sessions deal with the record of a former sessions, as there was no formal adjournment, but the hearing of the case was merely postponed from one sessions to another. Peacock, in reply.-In Rex v. Fowler the case was directed to be brought on and heard afresh, because there had been a mis-trial. That was not like an adjournment. Lord DENMAN, C. J.-It appears to me that the argument of the plaintiff in error rests on a fallacy. It assumes, that the second court is not the same as the first. The court of quarter sessions is composed of the whole body of the justices; it is true, that it acts only at intervals, but such a court must have the power of adjourning a case if it thinks proper, and there can be no better reason for doing so than here, where the justices had not made up their minds as to their judgment. Defendants, too, should have time and an opportunity for entering into recognizances. PATTESON, J.-I am of the same opinion. I was at first struck with the passage cited from Dickenson, but it does not appear that it is founded on authority. The stat. of 1 Ed. 6, c. 7, was passed to provide for the nonabatement of process, where the names of the same justices of assize did not appear in successive commissions. The court of quarter sessions, however, is always under one and the same commission, and must, therefore, be taken to have the power of adjourning cases from one sitting to another. COLERIDGE, J.-The court of quarter sessions is a (a) 4 B. & A. 273. continuing court, and has power, as such, to continue and respite process. ERLE, J.-I am of the same opinion. The practice of adjournment is highly important, and constantly adopted by justices at Quarter Sessions, and there is no authority for the position laid down in Mr. Dickenson's book. I have turned to the authority cited from Bott, 756, Bodmin v. Warligen. That was an appeal, and, the justices being divided at the sessions, no order was made; and the Court said, "If the justices were divided in opinion, that was a sufficient warrant to the clerk of the peace to enter an adjournment, and it was his duty so to have done; and," the judgment continues, "if the parties will not consent to quash both orders, we will consider whether we cannot send it down again to have the entry of the first order amended. The first order was subsequently quashed, because made without adjournment, but no opinion was given." It is of the greatest importance that the sessions should have this power. If they had not, it would follow that if a witness were taken ill, a prisoner must be acquitted. Judgment for the Crown. 1847. KEEN v. The QUEEN. END OF TRINITY VACATION. |