The Queen v Charleton

• Jurisdiction: Ireland
• Judgment Date: 18 November 1839
• Date: 18 November 1839
• Court: Queen's Bench Division (Ireland)

QUEEN'S BENCH.

The QUEEN

and

CHARLETON.

See report of the trial at te Assizes, 1 Crawf. & Dix. Circuit Cases, 315.

Rex v. Whelan Hayes Cr. Law, 586, note

Rex v. Baker Carthrew, 6.

Rex v. NicollsENRENR 2 Str. 1227; S. C. 13 East, 412, note.

Rex v. KenworthyENRUNK 1 B. & C. 711; S. C. 3 Dow & Ry. 173.

Rex v. BourneENR 7 Ad. &E. 53.

Regina v. PorterENR 1 Salk. 149; S. C. 2 Lord Ray. 937.

King v. BakerENR 13 East, 414, noe.

Rex v. Garside 4 New. & M. 33.

Upper PapworthENR 2 East, 413.

Rex v. HartleyENR Russ. & Ry. 139.

Rex v. Boyce 1 Jebb & S. 214.

Rex v. BourneENR 7 Ad. & El. 58.

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

Rex v. Little Russ. & Ry. C. C. R. 130.

Rex v. JolliffeENR 4 T. R. 285.

Rex v. ReadENR 16 East, 404.

Rex v. JacksonENR 6 T. R. 145.

Rex v. LovedenENR 8 T. R. 615.

Rex v. James 2 M. & Sel. 321.

Rex v. ReasonENR 6 T. R. 375.

Rex v. NicollsENR 13 East. 416, note.

Dyer v. HamsworthENR 3 T. R. 614.

Regina v. BoyceENR 4 Burr. 2073.

Rex v. NicollsENR 13 East, 415.

Rex v. NicollsENR 13 East, 412.

Rex v. BakerENR 13 East 414; note,

Rex v. AtholENR 1 Str. 553.

Rex v. BoyceENR 4 Burr. 2073.

Mary SpraggENR 2 Burr. 930, 992, 1027.

CRIMINAL LAW JUDGMENT RESPITED JURISDICTION OF SBSEQUENT JUDGE OF ASSIZE JURISDICTION OF THE COURT.

1839. TISDALL TISDALL. 50 CASES IN THE QUEEN'S BENCH. devises to William and Philip Tisdall took effect, by way of executory devise. Seventhly, that the leases executed by Philip Tisdall, bearing date respectively the 20th March, 1834, and 31st August, 1835, are not, nor is either of them valid against the said Sidney Tisdall. We further certify, that the 8th 9th and 10th questions submitted to us, not having been argued before us by counsel, but counsel having declined to argue the same, we forbear from giving any opinion upon these questions.* CHARLES BUSHE. CHARLES BURTON. P. C. CRAMPTON. L. PERRIN. • These three questions related to the questions as to dower assets and Escheat, which were withdrawn from the consideration of the Court. Monday, Nov. 18th. CRIMINAL LAW-JUDGMENT RESPITED-JURISDICTION OF SUBSEQUENT JUDGE OF ASSIZE-JURISDICTION OF THIS COURT. The QUEEN v. CHARLETON.* A. was indictÂÂed at theAsÂÂsizes of MonÂÂaghan, for bigÂÂamy, and a verdict of guilÂÂty recorded, subject to cer tain objections taken to the evidence by the defendant's counsel, and which were reserved for the consideration of the Judges. No judgment was pronounced. The majority of the Judges having subsequently decided against the objections, at the following Assizes counsel for the Crown called upon the Judge, who was then presiding in the Criminal Court, to pronounce judgment upon the prisoner, which he declined to do, upon the ground that the punishment being discretionary, he had not jurisdiction. The proceedings were then removed by certiorari into the Court of Queen's Bench, when it was Held, that the next going Judge of Assize has jurisdiction, in such cases, to pronounce judgment. Htld also, that this Court has an inherent jurisdiction to do so in cases in which, in the exercise of its discretion, it deems it advisable to do so. (a) See report of the trial at the Assizes, 1 Crawf. & Dix. Circuit Cases, 315. 1- 10 Car. 1, sess. 2, c. 14, s. 5, enacts, " That in all cases where "any person or persons heretofore "have been or hereafter shall be "found guilty of any manner of "treason, murder, manslaughter, " rape, or other felony whatsoever, "for the which judgment of death" should or may ensue, and shall be " reprieved to prison, without judgÂÂ" ment at that time being given " against him, her, or them so found " guilty, that all and every person " or persons that at any time hereÂÂ" after, shall by the King's cornÂÂ" mission be assigned Justice or MICHAELMAS TERM, THIRD VICTORIA. 51 was passed, in order to take the opinion of the Twelve Judges upon an objection taken to the evidence of the first marriage. A majority of the Judges thought the evidence sufficient, two holding an opposite opiÂÂnion; and, at the following Summer Assizes, the prisoner was brought up before PENNEFATHER, B., and counsel on behalf of the Crown prayed for the sentence of the Court, but the learned Judge thought he he had no jurisdiction to pass sentence ; that the Judge before whom the case was tried should have recorded the sentence, but suspended its execution, because there was a discretion in the amount of punish 1839. THE QUEEN CHARLETON. "Justices, to deliver the gaole " where any such person or persons "found guiltie shall remaine, shall "have full power and authority to "give judgment of death against " such person or persons so found " guilty and reprieved, as the same "Justice or Justices (before whom " such person or persons was or " were found guiltie) might have " done, if their commission of gaole "delivery had remained and conti nued in full force and strength." 6th section.-" And be it also enÂÂ" acted by the authority aforesaid, " that in all cases where any person " or persons heretofore have been, " or hereafter shall be adjudged "and condemned of any manÂÂ" ner of treason, or felony whatÂÂ" soever, and shall be reprieved, " or the execution respited for "any cause whatsoever, that every "person or persons which at any "time hereafter shall, by the King's "commission, be assigned Justice " or Justices, to deliver the gaole " where any such person or persons "adjudged and condemned as aforeÂÂ" said shall remaine not executed, "shall have full power and authoÂÂ" rity to award execution upon "every such judgment against " every such person or persons adÂÂ" judged and condemned as aforeÂÂ" said, in as large and ample manÂÂ" ner and form, to all intents, conÂÂ" structions, and purposes as the "same Justice or Justices by whom "such judgment was given might "have done (if no cause had to " hire or them appeared for the "stay, respiting, or deferring of the " execution), and. as if his or their " commission of gaole-delivery had " remained and continued in full "force and strength. And over " that, that no manner of processe, " or suite made, sued or had before " any Justices of Assize, gaole deliÂÂ" very;oyerand terrniner,J ustices of "peace, or other of the King's comÂÂmissioners, shall in anywise be "discontinued by the making and " publishing of a new commission " or association, or by altering of "the names of the Justices of AsÂÂ" sizes, gaole-delivery,oyer and terÂÂ" miner, Justices of peace, or other " the King's commissioners ; but " that the new Justices of Assize, " gaole-delivery, and of the peace, "and other commissioners, may " proceed in every behalfe, as if the "old commissions and Justices and " commissioners had still remained "and continued not altered." 10 G. 4, cap. 34, sec. 26, enacts, " That if any person, being marÂÂ" ried, shall marry any other perÂÂ" son during the life of the forÂÂ" mer husband or wife, whether the "second marriage shall have taken "place in Ireland or elsewhere, " every such offender shall be guilty " of felony, and being convicted " thereof, shall be liable to be transÂÂ" ported beyond the sea for the " term of seven years, or to be imÂÂ" prisoned, with or Nithout hard " labour, in the common gaol, &c., " for any term not exceeding two " years." 52 CASES IN THE QUEEN'S BENCH. ment. The proceedings were then removed into this Court by certiorari, and the prisoner having been called upon, answered to his name, when the Attorney-General moved that he might be remanded to MonÂÂaghan, to be sentenced, or that he should be then sentenced in this Court. Mr. Napier moved in arrest of judgment. Wherever the sentence is discretionary, it can only be passed by the Judge who tries the case, for he alone can award the appropriate punishment. The principle upon which this rests is a most reasonable one : for whatever Court awards the punishment should be acquainted with all the circumstances of the case; and if this were not so, a party might always be deprived of the benefit of a discretion in his favor. The 10 Car. 1, less. 2, c. 14, enables any Judge at a commission of gaol delivery to pass sentence of death where there has been judgment before a former Judge, and a reprieve of the execution. But this only extends to capital felonies ; and it was so held, after argument, by Baron PENNEFATHER ; and there is a similar decision under 9 G. 4, c. 54, s. 9, Rex v. Whelan (a). The jurisdiction of this Court, at common law, to pass sentence on a conviction from an inferior Court, is only where the punishment is specific. In Rex v. Baker (b), the proceedings were removed into the Queen's Bench before judgment, by certiorari, and motion for judgment opposed, because this Court never gives judgment upon a conviction in another Court; and in Rex v. Nicolls (c), which was a similar proceeding, the same objection was taken as to the certiorari being brought before judgment; and it is stated, " but then a doubt arose what the Court could do, the certiorari " being brought before judgment ; and this Court, not being apprised of " the circumstances of the offence, could not tell what judgment to give : " and in Carthrew, 6, it is said they cannot give judgment," and the rule for quashing the certiorari was made absolute. The rule in the King v. Baker should be qualified to this extent, that the Queen's Bench may pass sentence, if the punishment is specific, and not discre,- tionary. At common law, the issuing of the new commission extinÂÂguished the old commission, and every thing commenced under the old commission and not completed, ceased and determined. 2 Inst. 419. In_ Rex v. Kenworthy (d), Lord Tenterden said, " There is no doubt that, "at common law, where the punishment is not discretionary, the record "of an inferior Court may be removed into this Court, and we may proÂÂ" flounce judgment, but in this instance we cannot do so ;" and upon these authorities, it is manifest that this Court cannot now pass a disÂÂcretionary...