Thomas Mansell v The Queen, in Error
| Jurisdiction | England & Wales |
| Judgment Date | 24 June 1857 |
| Date | 24 June 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 20
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 8 El. & Bl. 85; Dears. & B. C. C. 375; 27 L. J. M. C. 4 Referred to, Levinger v. R., 1870, L. R. 3 P. C. 287.
[54] thomas mansell against the queen, in error, Wednesday, June 24th, 1857. On the record of the trial of an indictment for a capital felony at the Assizes, entries were made by which it appeared that the panel of jurors returned by the sheriff was read over in order, omitting only the names of twelve jurors who, it was known, were then in the custody of the sheriff, deliberating on their verdict in another case. On the names being read, several were challenged peremptorily for the prisoner; and several were, on the prayer of the counsel for the Crown, ordered to " stand by," the counsel for the prisoner insisting that they should be sworn unless the Crown forthwith assigned cause for its challenge. When the panel had thus been read through, nine jurors had been elected. The name of I,, the first who had been ordered to " stand by," was called a second time; and be answered. The counsel for the Crown prayed that he might again stand by ; the counsel for the prisoner objected. Before any thing was done on this request, the absent twelve came in and gave their verdict in the other case. The counsel for the Crown then prayed that I. be again directed to stand by until these twelve jurors were called. The Judge so directed ; and from these a complete jury was made up, to whom the prisoner was given in charge. Verdict, Guilty. Sentence of death.-The record, being thus made up, was removed by writ of error into the Queen's Bench, where the judgment was affirmed. And, on a further writ of error, a transcript of the record of the Queen's Bench was removed into the Exchequer Chamber, where the judgment of the Queen's Bench (a) Reported by Francis Ellis Esq. IBL. 4BL.B. MANSELL V. THE QUEEN 21 waa affirmed.-Qusere, Whether the above matter was properly placed upon the record, or waa exarainable in error at all 1 Semble, that it waa not. But, on the assumption that it waa ao examinable,-Held, by the Queen's Bench, and affirmed by the Exchequer Chamber, that the Crown is entitled, as of right, to set aaide any juror when called, and ia not bound to challenge the juror for cause until the whole panel ia perused, and it is found that without him a complete jury cannot be obtained.-Held that, until the twelve had been called, the panel could in no sense be perused; and that, till then, the time when the Crown was bound to assign cauae had not come. Semble, that the panel cannot be said to be perused until all reasonable steps have been taken to cause the whole of the jurors on it to answer.-It was suggested that the Judge had, of his own mere motion, ordered a juror, who, on being called, declared that he had conscientious objections to capital punishment, to stand aside; but on the record it appeared to have been done at the prayer of the counsel for the Crown,-Semble, that, if it had been done at the mere motion of the Judge, it would have been unobjectionable.-In the instances of the jurors who were passed by upon the objection for the Crown, it appeared that the order of the Court was, in form, that the jurors should "atand by." Held, that the form was unobjectionable.-It was not stated on the record that the jurors on the panel were good and lawful men of the county. It appeared that, by the venire, the sheriff was ordered to return good and lawful men of the county, and that, for the purpose aforesaid, he had impanelled and returned the persons on the panel. Held, that there waa no error.-The practice of the new Court of Exchequer Chamber in error, in criminal cases, was ordered to be the same as the practice of the Queen's Bench in error in similar eaaes. [Affirmed in Exehequer Chamber, 8 El. & Bl. 85; Dears. & B. C. C. 375; 27 L. J. M. C. 4. Referred to, Levinger v. B., 1870, L. R. 3 P. C. 287.] The plaintiff in error was indicted for murder, and convicted, at the Winter Aasizea for Kent, [65] December 1856 ; and judgment of death waa paaaed upon him. A writ of error returnable in this Court waa afterwards obtained, upon the fiat of Sir R. Bethell, Attorney General; to which a return was made. In last Easter Term (a), under a writ of habeas corpus ad satiafaciendura, directed to the Governor and Keeper of Maidstone gaol, the plaintiff in error was brought into Court, in custody of the aaid governor; and, by his counsel, Francis Russell, prayed oyer of the writ of error and the return thereto : and the same were read, as follows. "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 waa indicted, and, by a certain jury of the aaid county impanelled thereupon between us and the said Thomas Mansell, was convicted, as it waa said, manifest error has intervened, to the great damage of the aaid Thomaa Manaell, aa by hia complaint we are informed : We, being willing that the error (if error there be) should in due manner be corrected, and full and speedy justice done to the said T. Manaell in this behalf, do command you that, if judgment be given thereupon, you send to us distinctly and openly, under your seats 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 [56] aforesaid being inspected, we may cauae to be further done thereupon for correcting that error what, if right and according to the law and custom of our realm of England, ought to be done. Witneaa " &c. " The execution of this writ appears by the record and proceedings and schedule hereunto annexed." " The answer of the parties within named." "Kent, to wit. Be it remembered that at the general 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, the joinder (a) April 24th, 1857. Before Lord Campbell C.J., Erie and Crompton Js. 22 MANSELL V. THE QUEEN I EL. ft BL. 67; by the clerk of the Assizes and clerk of the Crown. " 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 your 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 " &c. (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. Matthew Nicholson," &c. (naming 55 in all), "And the said Matthew Nicholson," &c. (naming the first 17), "being severally and successively called in the order in which their names aforesaid appear in the said panel as aforesaid, come, and are severally and successively peremp-[57]-torily challenged by the said T. Mansell, and altogether excepted from the said jury. And hereupon the aaid"&c. (the three jurors whose names were respectively 18th, 19th and 20th), "being next severally called in the order in which their names appear in the said panel as aforesaid, come, and are elected and tried to the intent that they should be sworn to speak the truth of and concerning the premises in the said indictment against the said T. Mansell specified. And the said Thomas Platts " (the juror whose name stood 22d), " being next called, cornea not. And the said Charles Penny " (the juror whose name stood 25th), "being next called, comes, and is peremptorily challenged by the said T. Mansell, and altogether excepted from the said jury. 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. Manaell, by Francis Russell, Esquire, barrister at law, his counsel, prays the Court here that, if our said Lady the Queen challenge the said W. Ireraonger, she so challange forthwith, and that the cause of such challenge may be shewn 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 William 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 stand by. And the said John Shelton Isaac" (the juror whose name stood 27th), " being next called, comes and is elected " &c. (to be sworn as before). " And the said [58] Jacob Jacobs" (the juror whose name stood 28th), " being next called, comes; and the said W. Ribton," &o, (prayer that juror may atand by, objection, and order of Court as before). " And the said John Jewell" (the juror whose name stood 32d), "being next called, comes, and is elected" &c. (to be sworn as before). " And hereupon the said William Jukes and George Jury " (the jurora whose names stood respectively 33d and 34th) " are next severally called and come : and the said William Ribton &c...
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