R v Elrington
| Jurisdiction | England & Wales |
| Judgment Date | 09 November 1861 |
| Date | 09 November 1861 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 870
IN THE COURT OF QUEEN'S BENCH, AND EXCHEQUER CHAMBER.
S. C. 9 Cox. C. C. 86; 31 L. J. M. C. 14; 5 L. T. 284; 8 Jur. N. S. 97; 10 W. R. 13. Distinguished, Wemuss v. Hopkins, 1875, L. R. 10 Q. B. 381. Discussed, R. v. Miles, 1890, 24 Q. B. D. 432.
[688] the queen, on the prosecution of E. H. finney, against R. J. elrington and H. H. elrington. Saturday, November 9th, 1861.-9 G. 4, c. 31, as. 27-29. Certificate of justices.-Where, under 9 G. 4, c. 31, ss. 27-29, a complaint of assault or battery has been made to two justices of the peace, who dismiss the complaint and give the party a certificate accordingly, the certificate may be pleaded in bar to an indictment, founded on the same facts, charging assault and battery, accompanied by malicious cutting and wounding so as to cause grievous or actual bodily harm. [S. C. 9 Cox, C. C. 86 ò 31 L. J. M. C. 14; 5 L. T. 284 ; 8 Jur. N. S. 97; 10 W. K. 13. Distinguished, Wemyss v. Hopkins, 1875, L. R. 10 Q. B. 381. Discussed, R. v. Miles, 1690, 24 Q, B. D. 432.] This was an indictment, preferred 25th November, I860, containing three counts, the first of which was as follows : "The jurors for our lady the Queen upon their oaths present that Richard John Elrington, late of the parish of Heston, in the county of Middlesex, labourer, and Henrj Handley Elringtou, late of the parish of Heston, in the county of Middlesex, labourer, on the 5th September, 1860, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one Edward Hamilton Finney, in the peace of God and our lady the Queen then and there being, did make an assault, and him the said E. H. F. then did beat, wound and illtreat, and that the said It. J. E. and the said H. H. E., with certain large walking sticks which they the said K. J. E. and the said H. H. E. in their right hands then and there had and held, unlawfully, maliciously and violently did cut and wound him the said E. H. F. in and upon the head, face, shoulders and arms, thereby causing to the said E. H. F. grievous bodily harm, against the form of the statute in such [689] case made and provided, and against the peace of our lady the Queen, her crown and dignity." The second count was similar to the h'ist, except that it alleged "actual bodily harm" instead of "grievous bodily harm." The third count was for a common assault and battery. To the first count the defendant .Richard John Elrington pleaded this plea. "And now, that is to say on the 2d November in this same Term, before our said lady the Queen at Westminster, cometh the said .Richard John Elriugtou, by Thomas Henry Strangwaya his attorney, and, having heard the said indictment read, he saith that, as to the first count of tne said indictment, our said lady the Queen ought not further to prosecute the said indictment against the said R. J. E. in respect of the offence in the said first count of the said indictment mentioned; because he saith that heretofore, to wit on the 22d September, 1860, at the Town Hall, Brentford, in the said county of Middlesex, the said R. J. E. was, upon a certain information and complaint of the said E. H. F. in the indictment mentioned, he being the party aggrieved in that behalf, brought before Benjamin John Armstrong and George Cooper, Esquires, two of Her Majesty's justices of the peace in and for the said county of Middlesex, charged by the said information and complaint with having, within three calendar months then last past, at Heston, in the said county, unlawfully and violently assaulted the said E. H. F. on the 5th September in the year aforesaid, contrary to the statute in that case made and provided. And the said justices then and there had jurisdiction 1B.&S890. THE QUEEN l . ELRlNGTON 8? I to hear and determine [690] the said complaint, and did then and there, to wit, at Brentford aforesaid, on the 22d September aforesaid, duly proceed to hear...
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... ... The Legal Principles ... 40 We turn to the applicable principles and the authorities on which they are founded ... 41 A convenient starting point is to be found in the statement of Cockburn CJ in the old case of Elrington [1861] 1 B & S 688 at p. 688, where he said this: “…whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form” ... The rationale for this restriction on subsequent trials is obvious ... ...
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