R v Charlesworth
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1861 |
| Date | 26 June 1861 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 786
IN THE COURT OF QUEEN'S BENCH, AND EXCHEQUER CHAMBER.
S. C. 2 F. & F. 326; 9 Cox, C. C. 44; 31 L. J. M. C. 25; 5 L. T. 150; 8 Jur. N. S. 1091; 9 W. R. 842. Referred to, Winsor v. R., 1866, L. R. 1 Q. B. 303, 393.
[460] the queen against john barff charlesworth. Wednesday, June 26th, 1861.-Criminal trial. Discharge of jury without giving verdict. Collusion. Double pleading.- 1. Where, in a case of misdemeanor, the jury are improperly, and against the will of the defendant, discharged by the Judge from giving a verdict after the trial has begun, this is not equivalent to an acquittal, nor does it entitle the defendant to judgment quod eat sine die.-2. Quaere, whether the same holds in treason and felony t-3, Semble, that in a criminal case a Judge is not justified in discharging the jury from giving a verdict because material evidence on the part of the Crown is not forthcoming, the absence of which will be productive of a defeat of justice ; but-4. Quaere, whether he may not do so if tbe absence of the evidence is occasioned by collusion between a witness and the accused ?-5. Information by the Attorney General for bribery at an election of a member of Parliament. Plea, not guilty. At the trial, a material and necessary witness for the Crown refused to give evidence, and was committed for contempt; whereupon, at the application of the counsel for the Crown, the defendant objecting, the Judge discharged the jury from giving any verdict: Quaere, whether he was right in so doing!-6. The Court in that case refused to (a)1 See 2 Burn, E. L. 444, 445, 9th ed., by Phillimore. (6) 1 Com. 318. S. C. nom. Butler v. Gastrill, Gilb. Ca. Eq. 156. S. C. nom. Butler v. Gastrell, Bunb. 145. (a)2 1 Com. 2 ; S. C. nom. Hains v. Jeffell, 1 Ld. Raym. 68 ; nom. Haines v. Jescolt, 5 Mod. 168; nom. Hains v. Jefcott, Comb. 356. IB. kg. 1. THE QUEEN V. CHARLES WORTH 787 allow the defendant to add a plea puis darrein continuance, stating the above facts: on the ground that this would be to allow double pleading; and also, as the facts would be set out on the record, the defendant could take advantage of them. [& C.2F.& F. 326; 9 Cox, C. C. 44 ; 31 L. J. M. C. 25 ; 5 L. T. 150; 8 Jur. N. S. 1091; 9 W. E. 842. Referred to, Wmsm- v. R., 1866, L. E. 1 Q. B. 303, 393.] Information for bribery, filed by the Attorney General. The first count charged that the defendant unlawfully and corruptly advanced and caused to be paid to one Jose Louis Fernandas the sum of 37501., with intent that it should be expended in bribery at the election of a member of Parliament for the borough of Wakefield, in April, 1859, contrary to stat. 17 & 18 Viet. c. 102. There were seven other counts charging the defendant with distinct acts of bribing voters. Plea: Not guilty. On the trial, before Hill J., at the Spring Assizes for the county of York, in 1861, J. L. Fernandas, who had received a certificate from the Commissionera appointed under stat. 15 & 16 Viet. c. 57, to examine into corrupt [461] practices at the election for the borough of Wakefield in 1859, was called as a wicness for the prosecution. He refused to answer a certain material question put to him upon the ground that the certificate was riot a sufficient protection. The learned Judge was of opinion that, by sect. 10, the certificate freed him from all prosecutions for any corrupt practice at the election, and therefore he was bound to answer the question. When the witness still refused to answer, the learned Judge adjudged him to be guilty of a contempt of the Court, and sentenced him to be imprisoned for that contempt for six calendar months, to pay a fine of 5001., and to be imprisoned until that fine was paid (a). The Solicitor General, who conducted the case for the Crown, then stated that it was impossible to proceed with the prosecution without the evidence of this witness, and asked the learned Judge to discharge the jury instead of directing a verdict of acquittal for want of evidence, and cited Newton's Case (13 Q. B. 716) and The King v. Stokes (6 C. & P. 151). For the defendant it was contended that the Judge had no discretionary power in the matter, and that, when a person was once placed on his trial, be had a right to be tried. The learned Judge, after consulting Keating J., said that the conclusion at which he had arrived was to discharge the jury; that, if he had not the power to do so by law, the fact of the discharge, with the reason of [462] it would appear on the record; but that, if he had the power, he ought to exercise it where a witness had wilfully tampered with the ends of justice. The jury were discharged accordingly. In Trinity Term (May 30), Sir F. Kelly, on behalf of the defendant, moved for leave to file a plea in the nature of a plea puis darrein continuance, the plea of not guilty remaining on the record. The plea will raise the question whether the defendant, having been once put on his trial upon this information, can again be tried upon it. The discharge of the jury in this case was not a matter in the discretion of the Judge, and therefore it may be pleaded as a bar to the information. Unless this plea is allowed, the defendant must be exposed to the anxiety and expence of another trial before he will be able to raise the question by motion in arrest of judgment, or by bringing a writ of error. The defendant cannot compel the Crown to make up the postea. [He cited Omiway and Lynch v. The Queen (7 Irish Law Eep. 149), The Queen v. Newton (3 C. & Kir. 85, 87, 88) and The Queen \. Davism (2 F. & F. 250).] If the plea ought not to be allowed, the Attorney General can move to take it off the file. Cockburn C.J. Where a defendant alleges that some matters have occurred since he pleaded which exempt him from further liability upon the charge made against him on the indictment or information, he has a right to plead puis darrein continu- (a) A habeas corpus was subsequently moved for in the Court of Exchequer, see 6 H. & N. 717, and in the Court of Common Pleas, see 10 C. B. N. S. 3, to discharge the witness from custody, and refused, on the ground that the Judges of assize are Judges of a superior Court, and have a jurisdiction to commit, which is not subject to be reviewed by the Court above. 788 THE QUEEN V. CHARLES WORTH 1B.&S.M3. ance. Upon this ground the application ought to be granted ; and the [463] Attorney General can, if he pleases, move to take the plea off the file, or demur to it. Wightman and Blackburn JJ. concurred. Application granted. The plea was as follows :- " And now (that is to say) on the 22d of May in this same term, before our said lady the Queen at Westminster, cometh the said John Barff Charleswortb, by the said Charles Fiddey his attorney, and saith that the said Attorney General for our said lady the Queen ought not further to prosecute the above mentioned information against him the said J. B. Charlesworth, or to proceed to the trial of the issue above joined, because he says that heretofore (to wit) on the 7th day of March A.D. 1861, at York, in the county of York, at the Assizes then and there holden in and for the said county, before the Honorable Sir Hugh Hill, Knight, and the Honorable Sir Henry Singer Keating, Knight, Justices of our lady the Queen, duly assigned to take the Assizes in and for the said county, the jurors of the jury aforesaid being then and there called, did then and there come ; thereupon [names of jurors] twelve of the jurors last aforesaid were then and there duly called, and did then and there answer to their names respectively, and were then and there duly sworn and empannelled to try the issue above knit and joined between our Sovereign lady the Queen and the said J. B. Gharlesworth. And the jurors bo sworn and empannelled were then and there duly charged with the said J. B. Gharleswortb, who was then and there duly given in [464] charge to the last mentioned jurors so sworn and empannelled as last aforesaid. And Sir William Atherton, Knight, Her Majesty's Solicitor General, of counsel for and on behalf of our said lady the Queen, who then and there prosecuted for our said lady the Queen in that behalf, did then and there produce divers (to wit eight) witnesses for and on behalf of our said lady the Queen, who were then and there duly sworn, and then and there gave evidence to the said Court and the said jury so sworn and empannelled and charged with J. B. Charlesworth as aforesaid touching the said supposed misdemeanours above laid to his charge. And the said J. B. Cbarlesworth further says that, after tbe said jurors were so charged with the said J. B. Churlesworth, and during the trial of the said issue, Jose Louis 1'eriiandes, one of the said witnesses for and on behalf of our said lady the Queen, refused to answer a certain question put to him by the counsel for and on behalf of our said lady the Queen, whereupon the said Sir Hugh Hill, one of the said Justices, having delivered his opinion that the said J. L. Fernandes was bound by law to answer the said queition, and he still refusing to answer the same, the counsel for our said lady the Queen declined further to proceed with the trial of the said issue, and called upon the said Justice to discharge the said jurors from giving any verdict thereon, against which the said J. B. Gharlesworth, by his counsel in that behalf, protested and objected, and requested the said Justice to proceed with the trial of tbe said issue, so that tbe jurors aforesaid might deliver their verdict thereon, which the said Justice refused to do, and thereupon the said Justice then and there, for the reason aforesaid, and for no other cause whatever, with-[465]-out the consent and against the will of the said J. B. Charleiworth, discharged the said jurors of the said J. B. Charlesworth, and from declaring or giving their verdict on the aaid issue. And this the said J. B. Gharlesworth is ready to...
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