The Queen v Samuel Otway

Judgment Date10 December 1850
Date10 December 1850
CourtCourt of Criminal Appeal

Crim. Appeal.



The King v. JonesENR 10 B. & Ad. 611.

Bristow v. WrightENR 2 Doug. 665.

H. T. 1849. Cris. Appeal. THE QUEEN v. SAMUEL OTWAY.* (Court of Criminal Appeal.)t Dec. 8, 10. TRE prisoner had been tried and convicted at the Commission of An indictment found that, in Oyer and Terminer for the county of the city of Dublin, held at pursuance of a certain Act of Green-street in October 1849, before CHAIIIPTO/q, J., and BALL, Parliament, by on an indictment under 11 & 12 Vic. c. 2 roclama , " An Act for the better a ption duly published in Prevention of Crime and Outrage in certain parts of Ireland."t the " Dublin and" Gazette," It appeared from the evidence on the trial that a proclamation duly posted, under the said Act for the county of the city of Dublin was issued with an abÂstract of the and published in the " Gazette " in the month of July 1848, and provisions of the said Act duly posted within the Castle Division of the district of Dublin at the foot according to metropolis ; but there was no proof of any posting in the other the provisions thereof, after a divisions as directed by the second section of this Act. certain day in said Amen- Counsel for the traverser contended that evidence ought to be tion men- boned said given of a posting in all the modes prescribed by this 2nd section. Act should to an The learned Judges, however, left the case to the jury, notwith- begin force in standing the deficiency of this proof, reserving the question for the the county of D., and consideration of this Court. The prisoner was convicted. charged that after that day The case coming on to be heard- the and whilst proclamation was in force and not re The Attorney-General, for the Crown, abandoned the first count yoked, and whilst the Act of the indictment, and stated he relied solely on the second count. did apply to the county of D., the prisoner, on the day and at the place specified in the proclamation, unlaw fully, &c., did carry and have a certain pistol, not being licensed so to do, contrary to the form, &c. The 2nd section of the Act (on which this indictment was founded) enacted that printed copies of every proclamation issuedj under the Act should, with an abstract of the provisions of, the Act, be posted in certain specified places. Held, that the posting of this proclamation was not a fact necessary to be averred or proved to warrant this indictment. Held also, that when an indictment contains distinct averments, one material and another immaterial, the immaterial may be rejected as surplusage ; but if the whole averment cannot be struck out without getting rid of a material part, the whole must be proved. * BLACKB1JRNE, C. J., DOHERTY, C. J., PERRIN, 5., BALL, J., and JACKSON, J., presiding. t For references see end of case. J. A. Curran, for the traverser. The 11 & 12 Vic. c. 2, s. 2, makes it imperative on the Lord Lieutenant to have published and posted the proclamation and abstract in the manner directed thereby before any jurisdiction is created to try or punish for offences under this Act ; and according to the authority of the cases cited in Dwarris on Statutes, p. 704, on the proper construction of Penal Acts, the words of the 2nd section must be construed as mandatory, and a full compliance therewith is indispensable to give force and effect to the law ; and further, the Crown having in the indictment averred the due publicity and posting, and that it was done in pursuance of the statute, they could not sever that averment and say that any portion thereof was immaÂterial, and therefore unnecessary to be proved. The Attorney-General and Solicitor-General, contra. The 2nd section is only directory ; that is clear from the reading of the 9th section. In that latter section there is no mention whatever of posting, and the last count is framed according to its provisions ; not so in the 11th section ; there the publishing and posting of the notice, requiring all persons (save those exempted) to deliver up their arms within a given time, is expressly required pursuant to the provisions of that section ; so it is quite manifest that proof of the due issuing and publishing of the proclamation is all that is necessary to support the charge under the 9th section in that respect. But it is said that it being averred that such proclamation was posted as well as published pursuant to the statute, it must be proved as laid; that this was not the law is clearly demonstrative on authority. If the...

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