R v Bowen
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1844 |
| Date | 25 July 1844 |
| Court | High Court |
English Reports Citation: 173 E.R. 933
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
(Grown Side) before Mr Justice Williams. regina v bowen. (pefore the Spring Assizes, 1840, A. was committed to take his trial at those assizes for shooting B. The trial was postponed to the Summer Assizes, on the ground, that B. was too ill from his wounds to be able to attend to give evidence. Before the Summer Assizes B died, and at those assizes a true bill for the murder of B was found against A , aad application was made on the part of the prosecution to postpone the trial to the next Spring Assizes, on the ground of the illness of a material witness The Judge granted the application, and held that A. was not intitied to his discharge under the 7th section of the Habeas Corpus Act ) Murder -The prisoner was indicted for the murder of Richard Yarworth, by ahooting him with a pistol The prisoner had been committed for trial before the Spring Assizes, 1840, on a charge of having shot Mr. Yarworth, and a true bill found ; but the trial had been postponed to the present assizes, on the ground that Mr Yarworth was too ill from lis wounds to be able to attend the assizes. Since that time Mr Yarworth had died. As soon as the prisoner had pleaded to the indictment for the murder, W J. Alexander, ior the prosecution, applied to postpone the trial till the next assizes, upon an affidavit, entitled to all and every beueht and protection of this Act , dnd the creditor in that behalf shall be entitled to the benefit of all the provisions made for creditors by this Act, in respect of the actual amount of such debt, claim, or balance, and neither more nor less than the same, to all intents and purposes, such error in the said schedule notwithstanding." (a) That section relates to the Insolvent Court inquiring into the truth of the but does not specifically relate to mistakes in describing debts. 934 BEGESTA V. BO\TEN 9 CAB. & P. 610. that Thomas Sharp, a material witness against the prisoner, upon the indictment for th$ murder of Mr. Yarworth, [510] was too ill to attend these assizes without endangering his life. Maplean, for the prisoner, urged the great hardship of postponing the trial till the next assizes, the prisoner's trial having been once previously postponed. Greaves, on the same side.-This application is entirely novel and unprecedented, and no instance can be cited of a similar application having been granted, and I submit, that, in point of law, the trial cannot, be postponed ; but the trial must take place, or the prisoner be discharged. The question is one of great importance, and depends on the 7th section of the Habeas Corpus Act, 31 Car. II. c 2, which enacts, " That if any person or persons shall be committed for high treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer or petition in open court the first week of the term, or first day of the sessions of oyer and termmer, or general gaol-delivery, to be brought to his trial, shall not be indicted some time in the next term, sessions of oyer and termmer, or general gaol-delivery, after such commitment; it shall and may be lawful to and for the judges of the Court of Kmg-'s Bench and justices of oyer and termmer or general gaol-delivery, and they are hereby required, upon motion to them made in open court the last day of the term, sessions, or gaol-delivery, either by the prisoner or any one in his behalf, to set at liberty the prisoner upon bail, unless it appear to the judges and justices upon oath made, that the witnesses for the King could not be produced the same term, sessions, or general gaol-delivery ; and if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term, or first day of the sessions of oyer and terminer and general gaol-delivery, to be brought to his trial, shall not be indicted and tried the second term, sessions of oyer and terminer or general gaol-delivery, after his commitment, or upon [511] his trial shall be acquitted, he shall be discharged from his imprisonment." Now this case would be precisely within the words of the Act, if the prisoner had applied to be tried on the 1st day of the assizes, and his having omitted to do so can afford no reason for ousting him of the benefit of such a provision, which ought to be liberally construed in favour of personal liberty. In point of law the whole of the Assizes are considered as only one day, and any act done, or judgment given, at any period during the Assizes, is, in contemplation of law, the same aa if it had taken place on the first day of the AssizeH A demand, therefore, to be tried, may well be held to be within the meaning of the statute, although made at a later period than the first day of the Assizes Besides, it is the constant practice to do no criminal business on the first clay of the Assizes, and prisoners are never brought into Court on that day, and have, therefore, on that day no opportunity of applying. Again, the commission may be opened so late in the day (of which a jemarkable instance occurred in this very Court), that there may be no time to make any application at all Again, if the prisoner here be not entitled to the benefit of the clause, he can never hereafter claim its advantage, for the clause applies only to the second Assizes Besides, in this case, the prosecutors have so acted, as to lead him necessarily to conclude that they would try the case at these Assizes. I submit, therefore, that the case is to be looked at as if the application had been made on the first day of the Assizes. Then, if that be so, I submit that the prisoner is entitled now either to be tried, or to be discharged The power of postponing the trial on the absence of the witnesses for the Crown, is clearly limited by the earlier part of the section to the first Assizes after the commitment, and it is clear, that at the second Assizes the trial must take place, or the prisoner be discharged ; for the case of a prisoner, tried and acquitted, and of a prisoner not tried, are put in the same position ; and, as in the [512] former case it is obvious the prisoner must be discharged, so it is in the latter. There are also the strongest reasons for so construing the Act The witnesses on the part af the Crown having been examined in the presence of the prisoner, their depositions, in case of their death, are evidence, against the prisoner , but in case any of his witnesses die, or are absent, he will wholly lose the benefit of their testimony ; and in this very case, the life of the prisoner may be sacrificed by postponing the trial, as his funds are wholly exhausted by twice bringing witnesses from Worcester to Gloucester (a) Besides the additional (| The prisoner had been discharged by the magistrates at Cheltenham when first apprehended, upon proof of an alibi by witnesses from Worcester, and had after- 9 CftB. ft P. 513. BEGIN A V. MEEK 935 delay must necessarily prejudice the case of the prisoner, which is an alibi, as facts which are now fresh in the minds of the witnesses will become more indistinct the loager the trial is postponed. At all events, if the statute be not strictly applicable, no better authority can be found for guiding the discretion of the Court in postponing the trial. Williams, J.-I am bound to postpone this trial Who can prevent such an occurrence as this ? I have as great a respect as any man for the Habeas Corpus Act , but it is a human law, and must be humanly interpreted. The proviso is, that the prisoners should be indicted and tried at the second assizes . now he is indicted, but his trial must be subject to human contingency (b). Trial postponed. W, J. Alexander and Skinner, for the prosecution. M'Lean and Greavea, for the prisoner. [Attornies-Harmer and Okey.
English Reports Citation: 174 E.R. 448
IN THE COURTS OF KING'S BENCH, COMMON PLEAS, AND EXCHEQUER, AND ON THE NORTHERN AND WESTERN CIRCUITS.
Attornies-Landor & Gardener, and Passman.
[149] Shropshire Assizes (Crown Side), before Mr. Justice Coleridge reuhsta v bowen. (On an indictment for wounding, with intent to do grievous bodily harm, it appeared that two persons, one of whom was the prisoner, attacked and wounded the prosecutor, and robbed htm ; it was not proved which of the two persons inflicted the wound -Held, that if the prisoner inflicted the wound on the prosecutor with intent to rob him, he having at the same time an intent to do turn grievous bodily harm to effectuate such his intention of robbing, he ought to be indicted on this indictment. Held, also, that even if the prisoner's was not the hand that inflicted the wound, he ought to be convicted on this mdict- () '.' T R 707 |ti that case, Lord Kenyon says, " I admit that this man, who is proved to be insane, is to be considered as to this purpose [the receiving of his deposition in evidence] in the same state as if he were dead , and it has been decided, that in such cases, the party's hand-wr ving may be proved, as it he were actually dead.'' CAHJ4M. 1. REGISTA V. BO WEN 449 ment, ii the jury are satisfied that the two persons were engaged in the common purpose of robbing the prosecutor, and that the other person's was the hand which...
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