The Queen v Thomas Galvin Jun., Thomas Galvin Sen., and Michael Farrell

• Jurisdiction: Ireland
• Judgment Date: 01 June 1865
• Date: 01 June 1865
• Court: Court of Criminal Appeal

Crim. Appeal.

THE QUEEN

and

THOMAS GALVIN jun.,

THOMAS GALVIN sen., and MICHAEL FARRELL.

Regina v. NewtonENR 1 F. & F. 641.

Regina v. LangbridgeENR 1 Den. C. C. 448.

Johnson's caseENR 2 Car. & K. 335.

Regina v. Mullen 9 Cox, Cr. Cas. 339.

Regina v. Smith 2 Starkie Rep. 208.

Regina v. WalshENR 5 Cox, 115, 125.

Regina v. BeestonENR 1 Dearsley, Cr. C. 405; 6 Cox, 425.

Candle v. Seymour 1 Q. B. 889.

Regina v. ClerkeENR 2 F. & F. 2.

Regina v. NewtonENR 1 F. & F. 641.

Regina v. Langbridge 1 Den. C. C. R. 448.

The Queen v. LangbridgeENR 1 Den. C. C. 448; S. C., 2 Car. and Kir. 973.

Fearshire's caseENR 1 Leach, 202.

The Queen v. LangbridgeENR 1 Den. C. C. 448.

452 COMMON LAW REPORTS. E. T. 1865. Crim. Appeal. COURT OF CRIMINAL APPEAL. THE QUEEN v. THOMAS G-ALVIN jun., THOMAS GALVIN sen., and MICHAEL FARRELL.* May 10. June 1. A, B, C and D were brought before a J. P., in custody, and E being sworn by the Petty Sessions clerk, was examined by him, in the presence of the prisoners, and the presence of the Justice, as to certain alÂleged acts of the said A, B, C and D. The Petty Sessions clerk took down the stateÂment of E, in writing ; read it over to E, in the presence and hearing of the prisoners, of whom A and B cross-examined E. To the written statement so read, E affixed his mark. E having died before the trial, this statement was tendered in evidence against the prisoners, under the 14 & 15 Vic , c. 93, sec. 14. It began The information of E, of &c. Informant being duly sworn on his oath deposed as follows." It was signed by the J. P. before whom it was taken. Prisoners' Counsel objected to the admission of the document in evidence ; and the point being reserved on the followÂing objections ;- First ; That the deposition ought to be taken by the J. P. himself. Secondly ; That it had no caption. Thirdly ; That nothing to show on its face that the prisoner had been made aware of the charge on which he was in custody. Parol evidence was given that the document had been read over to the prisoners previous to the cross-examination. Held (dissentientibus O'HAGAN, J., HUGHES, B., HAYES and CHRISTIAN, JJ.), that the document was not admissible, as it was not preceded by a statement of the charge to which it had reference. Held (per CHRISTIAN and HAYES, JJ., HUGHES, B., and O'HAGAN, J.), that all the statute requires is that the charge should be made to the Magistrate before he proceeds to take the deposition, Semble-That the Justice need not take down the deposition himself, but it is sufficient if he is present and attending to the work of the clerk. v. "rick, fisherman. Informant, being duly sworn on his oath, saith GA LVIN. " as follows :-That on Tuesday, the 20th day of September inst., "I had an argument with Thomas Galvin jun., at the racecourse ; "he was after striking James M'Inerney, and I struck him with a " stick. I returned to Limerick at about seven o'clock the same "evening, when I saw the prisoners Thomas Galvin sen., and " Michael Farrell, in contact with James M'Inerney ; I went "between them to separate them. I made a blow at the prisoner " Thomas Galvin sen. ; I do not know whether I hit him or not ; " the prisoner Michael Farrell then caught me and held me, when "the prisoner now present, Thomas Galvin jun. stabbed me with "some sharp instrument under the arm, then, in the belly, at both "sides. I put down my hand and felt the blood coming, and " immediately went to the hospital.'" " Cross-examined by the prisoner Michael Farrell:-' You spoke "nothing to me, but caught me by the cravat ; you said to me, let " go of me ; for I respect your years ; I let go of you ; you had one " hand loose, and you had hold of me with the other. Thomas "Galvin jun., was there at the time I had a hold of you." "CrossÂ" examined by Thomas Galvin sen.:-' I struck you because you "struck M'Inerney: Further examined by Michael Farrell It "was while you had a hold of me that I was stabbed.' " "Sworn before me, at the city of Limerick, this 23rd day of " September 1864. J. O'SHAUGHNESSY, J. P.-Informant bound " in the sum of £50 to prosecute when called on. His 4 4 JOHN X HICKIE." mark. " The following evidence was given at the trial as to said inforÂmation :-First witness for the Crown (J. O'Shaughnessy, Esq.)Â"' I am a J. P. for the city of Limerick. I knew John Hickie "(deceased). I saw him on the evening of the 23rd of September "last, in Barrington's Hospital in this city, in bed, in a bad state " of health. I took an information from him at that time. I saw " Hickie put his mark to it. Before that, the prisoners T. Galvin 454 COMMON LAW REPORTS. E. T. 1865. "sen. and M. Farrell cross-examined Hickie. T. Galvin jun. was Crim. Appeal. " present. I cannot say that the three prisoners were present the THE QUEEN " whole of the time."-[Identifies the information].-"' I cannot v. GALVIN. " state from my recollection whether I read it to Hickie or not.' " Second witness (E. M. Beauchamp) :-" 'I am Clerk of Petty " Sessions:-[Information produced]- was present when that " was taken. Hickie was then in bed. The information was written "out by me. Mr. O'Shaughnessy, the head constable, the three "prisoners, and some others, were present in the room the entire " time that I was writing the information. I had gone into the "room with Mr. O'Shaughnessy and the three prisoners, up to the " bed where Hickie was. I then swore Hickie, in the presence "of and before Mr. O'Shaughnessy, that the evidence he would "give before the Magistrates in the charge lie had against the " prisoners should be the truth, the whole truth, and nothing but " the truth ; but I did not mention what the charge was. I " then asked Hickie certain questions, and I took down his answers " truly, and read over each answer to him after I had taken it " down, as I went on. I did that with all the questions that I " put, and the answers ; and, when I had taken down the whole " of his answers to my questions, I read the whole over to him " truly ; and I told the three prisoners that they were at liberty " to cross-examine him, and ask him any questions they liked. "All the answers given by Hickie, and what I took down as "above mentioned, were given by him and read by me in the " presence and hearing of the three prisoners. The prisoners " M. Farrell and Thomas Galvin sen. then cross-examined Hickie ; "and I took down truly the answers he gave to their questions ; "and I read them truly for Hickie, in the presence and hearing " of the prisoner ; and when those answers were taken down, I "I then read over truly the entire information again for Hickie, "in the presence and hearing of the prisoners. After that was " done, I put the paper before Hickie, and gave him a pen : he "held the pen, with which I put his mark while he held it ; he " then acknowledged it to be his mark, and I then handed it to " Mr.,0'Shaughnessy, who signed it in my presence. I did not COMMON LAW REPORTS. 455 " read it again, to or in the hearing of the prisoners, after it was E. T. 1865. m. Ap "so signed. Mr. O'Shaughnessy was present, and quite near me, Gri peal. "the whole time. Hickie died the following morning. It was THE QUEEN v. "not, on the occasion of taking down the information, stated at GALVIN. " any time in the presence of the prisoners, or of any of them, " either by me or by any other person, what the charge against "the prisoner was. I merely swore Hickie, as above mentioned, "that the evidence he should give, in the charge he had against the prisoner, should be the truth, &c. Nothing was said by "Hickie in the presence of the prisoners, either before or after "I swore him, about his state of health. Hickie was very ill "at the time. " " The Crown proposed to read the informations. Prisoners' " Counsel objected, on the following grounds :-First ; that there " was no caption to it : Regina v. Newton. (a); Roscoe, p. 68. " Secondly ; that it did not appear that Hickie was sworn by " Mr. O'Shaughnessy ; and that, on the contrary, it appeared he was " not. Thirdly ; that the document did not state what the charge "against the prisoner was, and that the document was not in conÂ" formity with the Petty Sessions Act, 1851. Fourthly ; that the " charge against the prisoner was not stated in the caption of "the document, and was not stated to Hickie, or in the presence " of any of the prisoners, either at the time of Hickie being "sworn, or of taking his information, or at all on that occasion. " Fifthly ; that the document was not read over to or for the priÂ" soners after it was completed by the mark of Hickie, and the "signature of Mr. O'Shaughnessy. Counsel for the Crown relied "on Regina v. Langbridge (b), and contended that the document was " admissible independent of the statute. I admitted the document, " subject to the decision of this Court." " Several other witnesses were examined for the Crown; but it " is not necessary, for the purposes of this case, to give their eviÂdence in detail. With respect to Thomas Galvin sen., it appeared "that the conflict between him and MInerney (which is stated " in Hickie's information) took place some time previous to the (a) 1 F. & F. 641. (6) 1 Den. C. C. 448. 456 COMMON LAW REPORTS. E. T. 1865. " stabbing of Hickie. At the close of the case for the Crown, it Grim. Appeal. " was contended that there was not sufficient evidence to go to THE QUEEN "the jury to sustain the charge against Thomas Galvin sen. I v. GALVIE. " was of that opinion ; and Crown Counsel did not press the case " against him. I therefore directed the jury to acquit him, which "they accordingly did. With respect to Thomas' Galvin jun., the " evidence of some of the Crown witnesses corroborated that apÂ" gearing against him on the information. As to Farrell, it was " questionable whether, upon the entire of the evidence, he held "Hickie at the time of the stabbing, as would appear from the " information, or whether he in any way...