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1-225 (Raw)

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James Charland was indicted, under the Act commonly called Lord Ellenborough's Act, for wilfully, maliciously, and unlawfully assaulting one John Proctor, with intent to kill and murder, at Penrith on the 11th of July last. Upon a second count in the information, the prisoner was charged with a common assault.
In the opening of the case, the Learned Attorney General gave the Court to understand, that it seemed no longer a question whether the Act, under which the present information was found, extended to this Colony, or otherwise; but that the late New South Wales Act decided that it did extend to the Colonies, in all its provisions. This circumstance is mentioned in reference to the superseded highest Legal Authority in the Colony, whose Judicial opinion was at variance with the principle now laid down; which we take the opportunity of promulging [sic] for general information.
John Proctor was the first witness called. He is the gaoler at Penrith. Upon Sunday evening, the 11th of July last, he was despatched by John M'Henry, Esq. one of the Magistrates in that district, to the ferry at Emu Ford, upon a particular service. On his return, about mid-way between the ferry and his own house, he was suddenly and violently attacked by a man, who struck him on the back part of the head with a stick; upon turning to face the assailant, he met with another blow upon the left side of the mouth; and this was followed by one more violent on the left temple, which felled him to the ground. In the act of rising he was again struck. The ruffian and the witness having closed, a struggle ensued, in which the latter was wounded on the right shoulder, hand, and thumb, with a knife. The deadly instrument having dropped from the hand of the assailant, the witness threw it some yards distant beyond his reach. He then was fortunate enough to grasp the bludgeon with which he had been so maltreated, and , acting defensively, turned upon his antagonist, till he cried - "murder!" Immediately on rising, the prisoner at the bar, whom the prosecutor knew by this time, enquired for his knife (a large butcher's knife), saying he had it to grind, or had been grinding it. With assistance the prisoner was secured, and lodged in custody.
Upon being cross-examined by Mr. Rowe, for the prisoner, the prosecutor adds, that the prisoner came in the ship with him; that he is a married man; and that he has been subject to considerable distress of mind, of late, owing to an illicit intercourse that was said to exist betwixt his wife and one of the prosecutor's crown servants. He thinks that the prisoner is far from being right in his mind, else he would not have acted in such a way towards him (the prosecutor), as they had been upon the most friendly terms. About six months ago, in a fit of insanity, he attempted the life of his wife.
Thomas Lewis, deposed, that he was called upon by John Proctor, the last deponent, between the hours of 9 and 10 o'clock at night, on the 11th of July, to aid in apprehending the prisoner at the bar; by whom the prosecutor had been wounded in several places.
John Wilcox deposed, that on the morning after the attack upon Proctor, he accompanied him to the spot in search of the knife, with which Proctor said he had been wounded. He described the instrument; it was found upright a few yards from the place where Proctor said he had contended with the prisoner; and it was covered with blood.
George Godfrey deposed, that he is acquainted with the prisoner, and that the knife now before the Court he had seen in his possession prior to this transaction. Here the prosecution closed.
Upon the part of the prisoner, John M'Henry, Esq. Justice of the Peace, deposed, that he knows the prisoner. From the improper conduct of his wife, at times, the prisoner was in a distracted state of mind. Some months since he endeavoured to destroy her. In other respects he is a quiet inoffensive man.
John Loftus deposed, that he heard the prosecutor say, he would endeavour to have the prisoner removed to Port Macquarie, as no one's life would be safe while he was at large.
His Honor the Chief Justice, in summing up this case, and giving his charge to the Jury, with accustomed perspicuity, remarked that the hour of the night, and the circumstances of the attack, must too clearly shew premeditated malice. His Honor briefly and forcibly animadverted upon the attempt that had been made to set up the plea of mental imbecility, observing the danger that would be likely to arise if such excuses, as aberration of intellect, were once to be admitted in justification of such atrocious acts. The Jury retired for about half-an-hour, and returned a Verdict of Guilty - Remanded.
The prisoner was tried under the statute 43 Geo. III. called Lord Ellenborough's Act. The offence was stated to have taken place at Penrith, on the 11th of July last.
The information contained a second count against the prisoner for an assault with intent to murder, but the statute being omitted, the second charge resolved itself into a mere misdemeanor at common law. The Jury found a general verdict of "guilty." Afterwards the Attorney General entered a nolle prosequi on the first count, and prayed judgment on the second; but it was contended by the counsel for the prisoner, in arrest of judgment, that the information was irregular, because it did not lay the offence in any county, although the facts were proved to have been done in the county of Cumberland; that the offence charged amounted in fact to felony, and could not receive judgment as for a misdemeanor. The Court took time to consider the points, and on this day gave judgment, of which the following will be found to be a correct summary:-
The Chief Justice.- "The objections which have been raised in the present case, are partly matter of fact, and partly matter of law. I shall make a few observations upon them, in the order in which they have been raised. The first objection goes to the omission of the county, in which the offence charged against the prisoner was proved to have been committed. But it appears to me there is a preliminary question to determine, - has this Colony ever been, in fact, divided into counties? and, supposing it to have been so divided, are all the legal considerations incident to counties in England, necessarily applicable to the present condition of this Colony? The King, in virtue of his executive authority, may, I conceive, cause any of the Colonies dependant upon his Crown to be divided into counties and parishes; there is an opinion of Sir Dudley Rider, and Lord Mansfield, at the time he was Solicitor General, to that effect. But, I apprehend, that in order to give the full force of law to such a measure, it must be done in pursuance of an express authority from the Crown. I feel rather confirmed in this opinion, by referring to the patent commission of the Governors of the Colony, in which, although a great number of specific powers are given, and amongst others the power to appoint fairs and markets, as well as ports and harbours; there is no power expressly given to divide the settlement into counties, nor does the commission contain any general words from which such a power can be inferred. It was doubtless in the recollection of the advisers of the commission, that this Colony had not yet received the right of choosing representatives, or of trial by a jury of the county, and therefore the power of erecting counties, with all those incidents which are essential and inseparable from counties in England, appears to have been wisely reserved for a more advanced age of the Colony. The King may indeed communicate to his representative as many of his royal powers as he may deem necessary for the government of his Colonial subjects; but all such powers, unless they be clearly incidental, can only be communicated by express words; for the grant of the prerogatives of the Crown, like all other royal grants, are to be taken strictly against the grantee, and cannot be extended by construction. It does not appear to me that there has been any power within the Colony to divide it into counties, with the legal incidents of counties; nor do I collect, from the orders issued by the Governors of New South Wales, which I have been enabled to find, that any thing more was intended by them, in giving the names of counties to particular divisions of the territory, than to afford convenience and certainty in the description of particular places. The first order upon the subject I have met with is one of Governor King, in the year 1802.
"The order of Governor Bligh, dated, the 22d of September, 1806, professes merely to define the limits of the several military commands within the Settlement. That of Governor Macquarie, in 1819, in which his Excellency was pleased to call the newly discovered county beyond the mountains by the name of the county of Westmoreland, was, I apprehend, dictated in the same spirit.
"Entertaining the opinion which I do upon the matter of fact, it is the less necessary to observe upon the law of the case. I shall therefore briefly state, that the rule of law which requires the specific county to be named in the indictment or information, does not, in my opinion, apply here. In England, the institution of counties is coeval, at least, with the trial by jury. It is part of the law of trial by jury, that the jury should be returned from the county where the offence is alleged to have been committed. Hence, for the convenience of trial, circuits were instituted throughout the different counties in England. It was always, however, in the power of the Court of King's Bench to try at bar, if the necessity of the case should require such a manner of trial. This Court is a Court of Ki[n] g's Bench; and, in virtue of its Supreme Jurisdiction, may hear and determine every case which can regularly be brought before it. Although trials at bar are rarely resorted to at home, it is merely because it is more convenient to proceed at the assizes. In the application of this principle of convenience, the Court is governed by circumstances; and applying the same principle of convenience, I should feel inclined to hold, independently of any express law, that it would be more convenient in this Colony to bring offenders to the bar of this Court, than to remove the Court, composed as it is, of officers whose presence at the garrison is essential to the security of the Colony. Again, by the express words of the Act, this Court is constituted a Court of Oyer and Terminer, and General Gaol Delivery, in and for New South Wales;- not for the counties or divisions of New South Wales but for the whole colony at large. Had the Legislature intended it to be itinerant, it would have added the Commission of Assize and Nisi Prius; but in adding to its authority as the Supreme Court of the Colony, the commission of Oyer and Terminer, and Gaol Delivery, it appears merely to have intended to simplify its proceedings, and render them more active.
"Upon the whole case, I am of opinion, that it is not necessary, in any criminal proceeding in this Colony, to state the offence to have been committed in any particular county, provided there be words sufficiently descriptive of the place to bring it within the jurisdiction of the Court, and to give the party accused every benefit of defence.
"Upon the second ground I am of opinion, that as the offence charged as a misdemeanor, does in fact amount to a felony, that judgment must be arrested upon it. There is another ground which leads to the same conclusion; it is this:- The party has been prosecuted for a felony, and consequently deprived of those benefits which he would have been entitled to, if he had been tried for a misdemeanor - a copy of the information, a special jury, and the advantage of a full defence by counsel; therefore judgment must be arrested."