* * * Did not the court below pass sentence upon the offences charged in the first, second, third, fourth, sixth, and seventh counts in the indictment, as well as upon the offences charged in the other counts? The record of that court tells us that it did; and if we are to see whether there be any error on that record, and adopt the unanimous opinion of the judges, that those six counts, or the findings on them, are so bad that no judgment upon them would be good, how can we give judgment for the defendant, and thereby declare that there is no error in the record? The answer which has been given to this objection appears not only unsatisfactory, but inadmissible. It is said that we must presume that the court below gave judgment, and passed sentence, only with reference to the unobjectionable counts and findings. That would be to presume that which the record negatives. By that record the court tells us that the sentence on each defendant was 'for his offences aforesaid,' after enumerating all those charged in the indictment. Are we, after and in spite of this, to assume that this statement is false, and that the sentence was upon one-half only of the offences charged? * * * We can look to the record only for what passed in the court below; and as that tells us the sentence was passed upon all the offences of which the jury had found the defendants guilty, we cannot presume to the contrary of such a statement. It would be the presumption of a fact, the contrary of which was known to all to be the truth. The argument supposes the court below to have been right in all particulars; but the impossibility of doing so on this record was felt so strongly, that another argument was resorted to, (not very consistently with the judgment, for it assumes that the jury may have been wrong upon every count but one,) namely, that a court of error has to see only that there is some one offence properly charged, or a punishment applicable to it inflicted; and then, that being so, that as to all the other counts the court below was wrong – all such other counts or findings being bad.
"Consider what is the proposition contended for. Every count in an indictment for misdemeanour is supposed to apply to a different offence: they often do so, and always may; a prosecutor having the option of preparing a separate indictment for each, or of joining all as one. If he adopt the former course, he must, to support the sentence, show each indictment to be right. If he adopt the latter course – viz. going upon one indictment containing several counts, and one sentence is pronounced upon all the counts, according to the proposition now contended for; suppose the sentences to be bad on all the counts but one, that one applying to the most insignificant offence of the whole; a court of error, it is said, has no right to interfere! That is to say, it cannot correct error except such error be universal; – no matter how important that error, no matter how insignificant the portion which is right, nor what may have been the effect of such error! The proposition will no longer be 'in nullo est erratum,' but that the error is not —universal. If neither of these arguments prove that there is manifest error upon the record, and it is not for a court of error to enter into any consideration of the effect which such error may have produced, it has no power to alter the verdict, and can form no opinion of its propriety and justice from mere inspection of the record, which is all the judicial knowledge a court of error has of the case. Upon what ground is it to be assumed, in any case, that the court below, if aware of the legal insufficiency of any of the counts, or of the findings upon them, would have awarded the same punishment? It could, probably, do so in many cases – but in many it as certainly would not. If the several counts were only different modes of stating the same offence, the insufficiency of some of those counts could not affect the sentence; but if the different counts stated – as they well might – actually different misdemeanours, and, after a verdict of guilty upon all, it were found that some of such counts – that is, that some of the misdemeanours – charged, must be withdrawn from the consideration of the court, by reason of defects in either the counts themselves or the findings upon them, it cannot, in many cases, be supposed that the sentence could be the same as if the court had the duty thrown upon it of punishing all the offences charged. This may be well illustrated by supposing an indictment for two libels in different counts – the first of a slight, the other of an aggravated character – and verdict and judgment upon both; and the count charging the malignant libel, or the finding on it, held to be bad. Is the defendant to suffer the same punishment as if he had been properly found guilty of the malignant libel?" The reason why the rule in civil actions does not apply to motions in arrest of judgment in criminal cases, is plainly this: – because the court, having the sentence in its own hands, will give judgment 'on the part which is indictable' – and the failure of part of the charge will go only to lessening the punishment. These reasons, however, have plainly no application to writs of error; because a court of error cannot, of course, confine the judgment to those parts which are indictable, or lessen it, as the different charges are found to fail."
"The only inconvenience," added his lordship, "which can arise from the rule we are laying down, will be, that the prosecutor must be careful as to the counts on which he means to rely: the evidence at the trial must afford him the means of making the selection – and the defendant has now the means of compelling him to do so."
Such was, in substance, Lord Cottenham's judgment. He read it in his usual quiet, homely, matter-of-fact manner, as if he were not at all aware of, or cared not for, the immense importance and public interest attaching to the publication of the conclusion at which he had arrived.
Then rose Lord Campbell. In a business-like and satisfactory manner he went briefly over all the points which had been made by the plaintiffs in error, disposing of them all in favour of the crown, (expressing, however, doubts on the subject of the challenge to the array,) till he came to the point – which he thus approached: – "I now come, however, to considerations which induce me, without hesitation, humbly to advise your lordships to reverse this judgment." He was brief but pithy in assigning his reasons.
"According to the doctrine contended for on the part of the crown," said his lordship, adopting two cases which had been put by, we believe, Mr Peacock in his argument, "the following case may well happen. There may be an indictment containing two counts, A and B, for separate offences; A being a good count, B a bad one. The court below may think A bad and B good; and proceed to sentence the defendant to a heavy punishment merely in respect of B, which, though it may contain in reality not an offence in point of law, they may consider to contain one, and of signal turpitude. On a writ of error, the court above clearly sees that B is a bad count; but cannot reverse the judgment, because there stands count A in the indictment – and which, therefore, (though for a common assault only,) will support the heavy fine and imprisonment imposed in respect of count B! Let me suppose another case. An indictment contains two counts: there is a demurrer13 to each count: each demurrer is overruled, and a general judgment given that the defendant, 'for his offences aforesaid,' shall be fined and imprisoned. Is it to be said, that if he bring a writ of error, and prove one count to be bad, he shall have no relief unless he shows the other to be bad also?"
He concluded a brief commentary (substantially identical with that of Lord Cottenham) on the authorities cited, by affirming that "there was neither text-book, decision, nor dicta to support a doctrine so entirely contrary to principle."
This is how his lordship thinks the like mischief may be obviated in future: —
"If bad counts are inadvertently introduced, the mischief may be easily obviated by taking a verdict of acquittal upon them – by entering a nolle prosequi to them, or by seeing that the judgment is expressly stated to be on the good counts only, which alone could prevent the bad counts from invalidating the judgment upon a writ of error."
As to the notion that the judges were uninfluenced in passing sentence by the first three counts, on which there were numerous findings, he observed, that – "We cannot resort to the palpably incredible fiction that the judges, in violation of their duty, did not consider the guilt of the parties aggravated by the charges in these three counts, and proportionally increase their punishment."
After an unsuccessful attempt on the part of one or two lay peers who had not heard the whole