Patrick Hayes and Patrick Rice, in Error, v The Queen. William Fogarty v The Queen

• Jurisdiction: Ireland
• Judgment Date: 02 June 1846
• Date: 02 June 1846
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

PATRICK HAYES and PATRICK RICE, in Error,

and

THE QUEEN.

WILLIAM FOGARTY

and

THE QUEEN.

Rex v. Browne 7 A. & E. 58.

Rex v. Marshall 1 Mood. Cr. Cas. 158.

Rex v. Jennings Rus. & Ry. Cr. Cas. 388.

Rex v. EllisENR 5 B. & C. 395.

Rex v. Brady Rus. & Ry. Cr. Cas. 268.

Cole's case Plow. 401.

Hales v. Pettit Plow. 253.

Whitehead v. ReginamUNK 9 Jur. 594.

Rex v. NicholasENR 7 C. & P. 538.

Regina v. Durkin Cr. & Dix., N. Cas. 35.

Regina v. Green 1 C. & Dix. C. C. 77.

Godd's case Popham's Rep. 211.

Cottingham v. Griffith Cro. Eliz. 258.

Fines v. NortonENR Cro. Car. 278.

Charlton v. BurfittENR 1 M. & S. 450.

O'Connell v. The Queen 11 Cl. & F. 267.

Lessee Earl of Norbury v. Kennedy 3 Cr. & Dix, 125, 127.

Calthorp v. NewtonENR Cro. Jac. 647.

Regina v. Hughes 1 C. & Kir. 235.

Rex v. EdmondsENR 4 B. & Al. 471.

O'Connell v. The QueenENR 11 Cl. & fin. 189.

CASES AT LAW. 53 T. T. 1846. Queetestench. PATRICK HAYES and PATRICK RICE, in Error, v. THE QUEEN. WILLIAM FOGARTY v. THE QUEEN.* ERROR, upon a conviction had, and a judgment pronounced thereon at the Spring Assizes of 1846 of the County of Tipperary. Rice and Hayes, two of the plaintiffs in error, were tried and convicted on a charge of conspiring, with Michael Hawkins, to murder Patrick Clarke. At the trial, Hayes tendered a challenge to the array, in which he assigned as cause of challenge that the jurors on the panel were not duly or at all summoned as by law they ought ; that the entire of the jurors on the panel were not summoned six days before the Commission, or six days before the day on which they were to attend ; that the names of the jurors were not specified in a warrant signed by the Sheriff, and directed to any bailiff or other officer appointed by the Sheriff to summon juries ; that the Sheriff had returned on the panel the names of persons not contained in the jurors' book ; that there were not thirty-six jurors on the panel summoned, as by law they ought, six days before the day on which they were to attend. The array was challenged, on similar grounds, on behalf of Patrick Rice. To these challenges Counsel for the Crown demurred ; and BALL, J., before whom the prisoners were tried, allowed the deÂmurrer. John Russell, one of the jurors named in the panel, was then • PERRIN, J., absence. 54 CASES AT LAW. called, and having answered to his name, Hayes and Rice tendered a challenge to the poll, on the following grounds :--That the said John Russell had not been duly summoned to attend as a juror, pursuant to the statute 3 & 4 W. 4, c. 91 ; and also that his name was not specified in a warrant or mandate signed by the Sheriff or Under-sheriff, and directed to the bailiff or other officer appointed by the Sheriff to summon juries. Upon the first cause of challenge the Crown took issue, and triers being appointed, they found against the challenge. To the other cause of challenge the Crown demurred, and this demurrer being also allowed by the Court, John Russell was sworn on the jury. William Fogarty, the other plaintiff in error, at the same Assizes, was convicted on an indictment containing two counts ; the first of which charged, "That William Fogarty, on, &c., with force and arms, " that is to say, with swords, sticks and soforth, at, &c., in and upon " one Michael M`Donald, a true and faithful subject of our said " lady the Queen, in the peace of God and of our said lady the " Queen, then and there being wilfully, maliciously, unlawfully, " feloniously and of his malice prepensed, did make an assault ; " and that the said William Fogarty wilfully, maliciously, unlawÂ" fully and feloniously and of his malice prepensed, did then and "there shoot at the said Michael M`Donald, by then and there " wilfully, maliciously, unlawfully and feloniously and of his malice "prepensed, discharging a certain loaded fire-arm, to wit, a certain " pistol loaded with gunpowder and a leaden bullet, at, towards and " against the person of him the said Michael M'Donald, and did then " and there, by means of the discharging and shooting of which said "pistol so charged and loaded as aforesaid, he the said William "Fogarty, the said Michael M'Donald in and upon the left breast of " him the said Michael M'Donald then and there with the leaden " shot aforesaid, out of the pistol aforesaid, so by him the said " William Fogarty discharged and shot as aforesaid, then and there "wilfully, feloniously and of his malice prepensed, did penetrate and " wound, with intent, then and there in so doing and by means "thereof, wilfully, maliciously, unlawfully, feloniously, and of his "malice prepensed, to murder him the said Michael M'Donald, " against the peace, &c., and contrary to the form of the statute," &c. The second count charged, "That the said William Fogarty, on " &c., with force and arms, at, &c., in and upon the said Michael " M`Donald, a true and faithful subject of our said Lady the Queen, " in the peace of God and of our said Lady the Queen, then and "there being, wilfully, maliciously, unlawfully, feloniously and of CASES AT LAW. 55 " his malice prepensed, did make another assault, and that the said " William Fogarty wilfully, maliciously, unlawfully, feloniously, and " of his malice prepensed, did then and there by certain means cause " to the said Michael 3/Donald a certain bodily injury dangerous to "life, to wit, by then and there shooting at and discharging a certain " loaded fire-arm, to wit, a pistol loaded with gunpowder and a " leaden bullet at, towards and against the person of the said Michael " 3/Donald, and by means of the said shooting and discharging as "aforesaid, then and there striking, penetrating and wounding the "said Michael MDonald in and upon the left breast of him the said " Michael M'Donald, with the leaden bullet aforesaid, so that the " body of him the said Michael 3/Donald was then and there "grievously wounded and injured, and the life of him the said "Michael MDonald was thereby then and there endangered, with " intent then and there in so doing and by means thereof, wilfully, "maliciously, unlawfully, feloniously and of his malice prepensed, to "murder him the said Michael MDonald, against the peace," &c. Fogarty challenged the array...