Gray v The Queen

CourtHouse of Lords (Ireland)
Judgment Date04 Sep 1844

H. of Lords.


Reading's case 7 St. Trials, 264.

482 CASES AT LAW. 1844. H. of Lords. fn tjt VouiSt of torU. GRAY v. THE QUEEN. A WRIT of error having been brought to the House of Lords on a judgÂÂment delivered in this case by the Court of Queen's Bench ;* and having been argued by Mr. Napier and Mr. V. T. Dawson, for the plaintiff in error; and the Attorney-General for Ireland, and Mr. Waddington, for the Crown At the conclusion of the argument, the House of Lords requested the opinion of the Judges upon the following question :-" A. B. being "indicted under the statute 1 Vic. c. 85, s. 3, for the commission of " felony of shooting [at another person] with intent to murder, chalÂÂ" lenged peremptorily one of the Jurors called to be sworn upon the "trial. It was objected to by the prosecutor. Ought the Court to "have allowed or disallowed such challenge F" To which question the Judges answered seriatim. WIGIITMAN, J. The offence in question is a felony, but the punishment is not capital; and it is to be considered whether the privilege of peremptory challenge depends upon the quality of the offence or the punishment. It has been so invariably the practice in all the Courts of criminal judicature in England to allow a prisoner, charged with any felony whatever, whether capital or otherwise, to challenge peremptorily any of the Jurors called to be sworn, to the number of twenty, that the first impression upon the mind of any one accustomed to practise in those Courts would be, that, unless it clearly appeared that such practice was founded on error, its existence so long without dispute or controversy raises a strong presumpÂÂtion that its origin was legal, and its continuance of right ; and that the privilege is attached to the quality of the offence, and not to the punishÂÂment. It is said, however, that it is a privilege allowed only in favorem and does not extend to cases in which the punishment is not capital. This position appears to be founded upon an observation made by some (a) See ante, 250. CASES AT LAW. 483 of the text-writers, of the ground upon which a peremptory challenge is allowed to persons charged with treason or felony, that it is in favorem vita. It is hardly necessary for the purpose of the present question, to inquire critically into the etymology or original meaning of the term " felony ;" but it is said by Sir William Blackstone, 4 Com. 94, that the distinctive incident in felony is forfeiture, and not capital punishment, and that at common law there are offences which are felonies,-thotigh not capital, and that there are offences the punishment of which is capital, though they are not felonies. He gives instances of these, to which it is not necessary to refer ; but he further remarks, that "the idea of felony " is so generally connected with that of capital punishment, that we find "it hard to separate them ; and to this usage the interpretations of the "law do now conform ; and, therefore, if a statute makes any new offence "felony, the law implies that it shall be punished with death, as well as " with forfeiture." This passage tends to explain how it would happen that the privilege of peremptory challenge allowed in felony should be conÂÂsidered as originating in favorem ritc-e ; and accordingly, we find in books of the highest authority, that the privilege is stated to be incident to felony generally ; and the reason assigned by some is, that such a priviÂÂlege is in favorem vita. It is said by Mr. Justice Foster, in his Discourse on Homicide, p. 305, that, " At common law, all felonies, except petty " larceny, rape, and mayhem, were capital offences, unless in eases where "the offender was capable of holy orders, and qualified for them ;" and it may very well be, that felony generally being capital, the privilege was allowed generally to cases of felony, because the great majority were capital, though there were some few that were not. In Finch's Law, book 4, c. 36 (of Trial by Jury), p. 414, it is said, " In indictments and " appeals of felony, the defendant may challenge thirty-five Jurors without " showing cause, which is called a peremptory challenge." In Doctor and Student, p. 29, it is said, "that he that is arraigned upon an indictÂÂ" ment of felony shall be admitted, in favour of life, to challenge thirtyÂÂ" five Jurors peremptorily." Lord Coke, in the 1st Inst. 156 b, speaking of peremptory challenge, says, " This is so called, because he may chatÂÂ" lenge peremptorily, upon his own dislike, without showing of any causes " and this only is, in case of treason or felony, in favorem vita ; and, by "the common law, the prisoner, upon an indictment or appeal, might " challenge thirty-five, which is under the number of three Juries." In Comyn's Digest, tit. " Challenge," C., it is said, " So, in petit treason or felony, by the common law, he might challenge thirty-five." Each of the four eminent authorities I have cited states the privilege of perempÂÂtory challenge as applicable to all cases of felony, without making any exception, though the reason added by two of them does not apply to three or four of the common law felonies. If the privilege did not extend to all felonies, it seems strange that no exception should be made by the writers to whom I have referred. 484 CASES AT LAW. The opinion, that the privilege was incident to the quality of the offence, and not to the punishment, although the severity of the latter, as generally applicable to the offence, may have been the first cause of it, is supported by the fact of the privilege having always been exercised in cases where benefit of clergy might be claimed, and the felony was virtually and practically no longer capital. It may, indeed, be said, that, down to the statute of the 5th of Anne, c. 6, the prisoner might not always be qualified to receive the benefit of clergy, as he might not be able to read ; but, in the fifth year of the reign of Queen Anne, the necessity of reading, to entitle a prisoner to the benefit of clergy, was done away with, and any person from that time was entitled to the benefit of clergy in all clergyable felonies, merely for asking for it ; and from that time those felonies practically and virtually were no longer capital ; but the parties charged were still allowed their challenges as in other cases of felony, although there was no longer any danger of their lives in case of conviction. Several statutes have at various times been passed, apparently recogÂÂnising the privilege as incident to felony generally, and without reference to the punishment upon conviction. As long ago as the passing of the statute of the 22 Hen. 8, c. 14, it was enacted, " That no person " arraigned for petit treason, murder, or felony should be admitted to "any peremptory challenge above the number of twenty." By the Irish statute of 10 & 11 Car. 1, c. 9, s. 1, it is enacted, " That no person "arraigned for any offence of high treason, petty treason, murder, manÂÂ" slaughter, or of any other felony whatsoever, shall be admitted to " challenge peremptorily above the number of twenty." The 6 G. 4, c. 50, s. 29, is to the same effect, that " no person arraigned for murder " or felony shall be admitted to any peremptory challenge above the " number of twenty." And the statute 9 G. 4, c. 54, s. 9, contains a similar enactment for Ireland, and nearly in the same terms. Upon the whole, it would seem, that the origin of the privilege in felony may have been the capital punishment usually incident to that quality of crime; but that the privilege was annexed to the quality of crime called felony, and continued so annexed in practice, in England at least, down to the time when the present question was raised, in all cases of felony, whether the punishment was capital or not ; and that it has been recognised as incident to felony generally by the statutes to which I have referred. I am, therefore, of opinion, that the Court ought to have allowed the challenge. COLTMAN, J. It appears to me, on the best consideration which I can give to this very intricate and difficult question, that by the common law of England the right of peremptory challenge was given in all felonies, except in the case of petty larceny ; and that the reason why it was allowed was, because the CASES AT LAW. 485 party's life was in jeopardy ; but that there is no sufficient ground for 1844. saying that the right was given conditionally only, and to continue only so 11. L°rdg• long'as felony should continue to be a capital offence. There is no decision GRAY of any Court of Law in England, that the existence of the right is so limited. There is, indeed, a dictum of Lord Chief Justice North, in THE QUEEN. Reading's case (a), which is supposed to go to this extent. The indictÂÂment was for a misdemeanour, and the Chief Justice is reported to have said, " You cannot challenge peremptorily in this case, it not being for your life." Now, as far as the overruling of the challenge was concerned, this was a decision, and one that is quite unobjectionable ; what is added seems to have been said, perhaps unnecessarily, by way of justifying the law from any imputation of hardship in disallowing peremptory challenges in misdemeanours, and not by way of laying down any general rule as to the cases in which peremptory challenges ought or ought not to be admitted. Even if this dictum had been stronger than it is, it would hardly be of more weight than what was said of an opposite nature by Chief Justice Parker, in the case of The King v. Macartney, which was an indictment for murder, where on a motion for a Special Jury he said, " That there cannot be a Special Jury in treason or felony, for the party must have the advantage of challenging twenty without cause shown." Via. Abr., tit. " Trial," D. a. 2, pl. 5. This case is the more deserving of attention, inasmuch as a Special Jury is never granted in criminal cases, except for...

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