Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Thomas Mansell v The Queen, in Error

State Trials Cited authorities 19 Cited in 1 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date24 June 1857
Date24 June 1857
CourtState Trial Proceedings
13 Edw. 1. st. 1. c. 38 Juries
33 Edw. 1. c. 4. Challenge of Jurors(Ordin. de Inquis.)
38 Edw. 3. st. 1. c. 12. Jurors
17 & 18 Vict. c. 125. Common Law Procedure Act, 1854
60 & 61 Vict. c. 18. Juries Detention Act, 1897
MANSELL against THE QUEEN (in error). JUDGMENT OF THE COURT OF QUEEN”S BENCH ON WRIT OF ERROR, BEFORE LORD CAMPBELL, L.C.J., ERLE AND CROMPTON, JJ., MAY 6TH, 1857. PROCEEDINGS IN THE COURT OF EXCHEQUER CHAMBER, BEFORE COCKBURN, C.J., POLLOCK, C.B., WILLIAMS AND WILLES, JJ., AND BRAMWELL, B., WATSON, B., AND CHANNELL, B., IN ERROR, FROM THE COURT OF QUEEN”S BENCH, JUNE 24TH, 1857. (Reported in 8 E. & B. 54; Dears. & 375 ; 27 L.J. N.S. M.C. 4.) In a trial for murder at the Maidstone Assizes, the 55 jurors impauelled were called in the order in which their names appeared on the panel, omitting 12 who were considering their verdict in the previous case. Of the jurors so called 18 were challenged peremptorily by the prisoner, 15 were ordered by the Crown to stand by, the prisoner”s counsel objecting, one did not appear, and 9 were elected and tried with the intent that they should be sworn. Thereupon the first juror who had been ordered by the Crown to stand by was called again, and counsel for the Crown prayed that he might again be ordered to stand by, and the prisoner”s counsel, that the Crown should show its cause of challenge. Before any judgment was given on these applications the 12 jurors who had been omitted came into Court ; and counsel for the Crown again prayed that the aforesaid juror should be ordered to stand by until they had been called, and the prisoner”s counsel, that in default of challenge he should be sworn. The Court ordered him a second time to stand by ; the calling of the 12 was proceeded with, and 3 of them were elected and tried with the intent that they should be sworn, making a full jury. Before the jury was sworn, one of the 3 stated that he had conscientious scruples against capital punishment. Counsel for the Crown prayed that he should be ordered to stand by, and the prisoner”s counsel, that if he were challenged, cause should be shown. The Court directed him to withdraw, and a twelfth juror was elected from the remaining 9. It is provided by 6 Geo. 4. c. 50. s. 29, re-enacting 33 Edw. 1. st. 4. c. 1., that in all inquests wherein the King is a party, "notwithstanding it be alleged by them that sue for the King that the jurors of those inquests, or some of them, be not indifferent for the King, yet such inquests shall not remain untaken for that cause ; but if they that sue for the King will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the custom of the Court, and it shall be proceeded to the taking. of the same inquisitions, as it shall be found if the challenges be true or not, after the discretion of the Court." Held by the Court of Exchequer Chamber, affirming the Court of Queen”s Bench on writ of error I. Calling over panel Right of Crown to order jurors to stand by-6 Geo. 4. c. 50. s. 29. That, under the above section, when the panel is called over the Crown may order jurors to stand by, and postpone assigning a cause of challenge, until the panel is exhausted. That the panel is not to be considered exhausted until, according to the usual practice of the Court and what reasonably may be done, it is ascertained that there are no more jurors on the panel whose attendance can be procured. That the Crown may order a juror to stand by at any time before the jury are sworn if the panel be not exhausted. Semble that the Court, even without challenge or objection on the part of the Crown or the prisoner, may order a juror who is manifestly unfit to withdraw. That the order in which the names on the panel are called is not matter of law, though the practice of the particular Court should be followed ; and therefore the twelve jurors in the previous case were properly called. 2. Error Form of Record. Qucere, whether any of the matters above set out were properly entered on the record and examinable in error ? Held, that the record was not had for omitting to aver that the jurors were good and lawful men of the county, such averment being supplied by intendment from the award of the venire to the Sheriff therein set out ; or for averring that some of the jurors were ordered to stand by. 833] Mansell against the Queen (in error), 1857. [834 This case, which was argued on writ of error, first in the Court of Queen”s Bench and afterwards in the Exchequer Chamber, raised questions as to the right of the Crown on a criminal trial to order a juror to stand by and defer showing a cause of challenge until the panel has been exhausted. The plaintiff in error was indicted for murder, and convicted, at the Winter Assizes for Kent, December 1856, before BRAMWELL, B. ; and judgment of death was passed upon him. A writ of error returnable in the Court of Queen”s Bench was afterwards obtained, upon the fiat of Sir B. Bethell,(a)Attorney-General, to which a return was made. In the ensuing Easter Term under a writ of habeas corpus ad satisfaciendum, directed to the Governor and keeper of Maidstone gaol, the plaintiff in error was brought into court, in custody of the said Governor, and, by his counsel, Francis Russell, prayed oyer of the writ of error and the return thereto ; and the same I were read as follows : WRIT OF ERROR. " Victoria, by the grace," &c. "To our justices of oyer and terminer in and for our county of Kent, assigned to deliver the gaol of the said county," &c., " greeting. Because in the record and proceedings, and also in the giving of a judgment, in a certain indictment made against Thomas Mansell for murder, whereof he was indicted, and, by a certain jury of the said county impanelled thereupon between us and the said Thomas Mansell, was convicted, as it was said, manifest error has intervened, to the great damage of the said Thomas Mansell, as by his complaint we are informed. We, being willing that the error (if error there be) should in due manner he corrected, and full and speedy justice done to the said T. Mansell in this behalf, do command you that, if judgment be given thereupon, you send to us distinctly and openly, under your seals or the seal of one of you, the record and proceedings aforesaid, with all things touching the same which are in your custody, and this writ ; so that we may have them before us on the 12th day of January instant, wheresoever we shall then be in England ; that, the record and proceedings aforesaid being inspected, we may cause to be further done thereupon for correcting that error what, of right and according to the law and custom of our realm of England, ought to be done. Witness," &c. "The execution of this writ appears by the record and proceedings and schedule hereunto annexed." "The answer of the parties within named. THE RECORD. " Kent, Z Be it remembered that at the General to wit. S Session of oyer and terminer," &c., (setting forth the caption, and indictment, which charged the plaintiff in error with the murder of Alexander M”Burney, the plea of Not guilty, (a) Afterwards Lord Westbury, L.C. 91500. the joinder by the clerk of the Assizes and clerk of the Crown and the award of the venire as follows : ) " Therefore let the jury thereupon, here and for this purpose by the said sheriff impanelled and returned, immediately come before the said justices of our said Lady the Queen, last above named, and others their fellows aforesaid, of good and lawful men of the county aforesaid, qualified according to law, by whom the truth of the matter may be better known, and who are not of kin to the said T. Mansell, to recognize, upon their oath, whether the said T. Mansell be guilty of the felony and murder in the indictment aforesaid above specified, or not guilty ; because as well the said," &e. (clerk of the Assizes) "as the said T. Mansell have put themselves upon that jury. And the said sheriff, for the purpose aforesaid, impanels and returns the persons following, and arrays them in a panel in the order following ; that is to say, viz., i Matthew Nicholson," &c. (naming 55 in all). The record then stated that seventeen of the persons on the panel being called in the order in which their names appeared, were peremptorily challenged by the prisoner, and that the three persons whose names came next were elected and tried with the intent that they should be sworn on the jury, and that a fourth came not, and a fifth was peremptorily challenged by the prisoner. And the said William Iremonger" (the juror whose name stood 26th) " being next called, comes. And hereupon William Ribton, esquire, barrister-at-law, who prosecutes for our Lady the Queen in this behalf, on behalf of our said Lady the Queen prays the Court here that the said William Iremonger may be ordered to stand by. And the said T. Mansell by Francis Russell, esquire, barrister at law, his counsel, prays the Court here that, if our said Lady the Queen challenge the said W. Iremonger, she so challenge forthwith, and that the cause of such challenge may be shown to the Court here forthwith, and before any other person on the said panel be called; and saith that, by the laws of this realm, the said W. Iremonger ought not to be ordered to stand by. And hereupon it is considered and adjudged and ordered by the Court here that the said William Iremonger do standby." The record then stated that twenty-eight persons were called, of whom six were tried and elected with the intent that they should be sworn, making nine in all, and twenty-two (of whom Jacob Jacobs was the first) were ordered to stand by after objection taken by the prisoner”s counsel, thus exhausting the panel with the exception of the twelve furors in the previous case whose names had been passed over. " And forasmuch as the remainder of the said several persons so impanelled and returned as aforesaid, are a...

To continue reading

Request your trial
1 cases
  • Johns v R
    • Australia
    • High Court
    • Invalid date

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT