ON PETITION FROM THE ISLAND OF IN RE SIDNEY LEVIEN.* 1855. A bill of indictment found at the assizes held forthe County of Cornwall,in the Island of prosecution AT the assizes held for the County of Cornwall, in 27th Nov., the Island of Jamaica, in the month of July, 1854, the Petitioner, Sidney Levien, was indicted for a libel upon the Honourable William Frederick Lewis, the for libel was Chairman of Quarter Sessions of the parish of St. James, in that county. The Court which found the bill consisted of the prosecutor and the Honourable Charles Farquharson, and a motion was made at the Jamaica. The instance of the prosecutor to remove the indictment was a private by Certiorari to the Supreme Court, and for change dictment was of the venue, on the ground, that a fair and impartial removed by trial and an unbiassed verdict could not be obtained certiorari to in the county of Cornwall; but the rule for such Court of the purpose was, after argument, discharged; and the indictment carried down to the Assize Court of Cornwall for trial. At the instance of the prosecutor, an order was obtained ex-parte for a special jury. Petitioner afterwards protested against the award one. The in afterwards the Supreme Island, and tried on the civil side of that Court, when a verdict of guilty was found. Upon The of a motion for arrest of * Present: The Right Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Patteson, and the Right Hon. Sir William H. Maule. judgment, the Supreme Court suspended judgment, pending an application to the Queen in Council upon certain grounds raised: Upon a petition for leave to appeal, their Lordships dismissed the petition, declining to interfere or give any opinion on the merits of the case. Quare-Whether, upon a record so framed, in the absence of a final judgment, an appeal will lie ? 1855. IN RE LEVIEN. special jury, as being unauthorised by the laws of the Island, and also protested against the striking of such jury, and when struck and impanelled the Petitioner formally challenged the array, and the prosecutor's counsel having demurred to such challenge, judgment was pronounced against the Petitioner, and he was forced to proceed to trial before the jury so impanelled. The indictment and the issues joined" therein were tried on the Civil and not on the Crown side of the Court, before the Honourable Charles M. Farquharson, the presiding Judge. At the close of the Judge's charge the Petitioner tendered exceptions, but the Judge adhered to his original directions to the jury, and the jury, under such directions upon the question of law, found a verdict of guilty against the Petitioner. The Petitioner moved the Supreme Court for a rule nisi for a new trial, stating special grounds. The motion was made before the Supreme Court, composed of the Honourable Sir Joshua Rowe, the Chief Justice, and the Honourable Charles Miller Farquharson, before whom the indictment had been tried. The Chief Justice delivered the judgment of the Court, refusing the rule on all the grounds insisted on, except that of impanelling a special jury, which, after argument, was held to have been legal, and within the authority of the Court, and the rule was wholly discharged. Application was then made to amend the record on arrest of judgment, and a motion for that purpose was made before the Supreme Court upon four distinct grounds. First, that the caption of the indictment was defective, and showed the Court improperly constituted before whom the indictment was found; second, for the omission of the allegation that the libel was published falsely and maliciously; third, for that there was no offence charged upon the indictment; and fourthly, that the issues were undisposed of by the jury, a verdict of guilty on the first issue having been returned, and no verdict pronounced on the second issue raised on the plea of justification. Judgment was reserved, and the prosecutor having obtained leave, amended the caption of the record in respect to the ground excepted to on the arrest of judgment. The Supreme Court afterwards gave judgment as follows:-" With regard to the objection raised respecting the caption of the indictment, that has been met by the Court permitting the caption to be amended; there remains, then, three other objections to be disposed of: first, the omission of the words 'falsely and maliciously;' second, that there was no offence charged specifically upon the indictment; and third, that the finding of guilty was only applicable to the first issue, whereby the record was incomplete. The first ground is met by the Jamaica Act, 14th Vict., c. 44, s. 4, which permits these words to be amended at the trial, inasmuch as they need not be proved at the trial; the second objection was not so easily disposed of; no Statute applying; the word 'in,' which creates the difficulty, might be rejected as 'surplusage,' it renders the count nonsensical, ungrammatical, and repugnant to common sense. Now, if this is so, the Court might strike out the word 'in,' or strike out the words in a certain part of which newspaper is contained;' on the authority of The King v. Stephens, and the remarks of Lord Ellenborough in that case, and Wyatt v. Aland (1 Salk. 324), we think the Court has that power. The count will then be good. The error VOL. X. D 1855. IN RE LEVIEN. 1855. IN RE LEVIEN. was clearly a misprision of the clerk; and considering that the Courts of law have hitherto endeavoured to further the ends of justice by doing away with objections merely technical, we think that as the amendment might be made, the objection in arrest of judgment is not tenable. As to the third ground, we think that the verdict is a general verdict, and covers the whole record. The rule in arrest of judgment must, therefore, be discharged." The Petitioner applied for leave to appeal from this judgment to Her Majesty in Council, and the sentence was by the Court suspended until Her Majesty's judgment in the premises should have been pronounced. The Petition to the Queen in Council, after setting forth the above facts, alleged that the costs of the prosecution, which by the laws of the Island attach to private prosecutions, had not yet been taxed as against the Petitioner; that the AttorneyGeneral had taken no direct or active part in the prosecution of the indictment, but that the same had been conducted wholly and entirely by private Counsel retained and paid by the private prosecutor in this that no writ of procedendo had issued transferring the indictment and the record from the jurisdiction of the Supreme Court, and since the removal thereo by writ of certiorari into the Supreme Court in the October term, 1854, the same had remained a record of the civil side of the Supreme Court, and had been dealt with by that Court as a record on the civil side of the Court; and the Petitioner prayed that Her Majesty would take his case into Her consideration, and award him such relief as by the laws of Great Britain and of Her Majesty's dependency of Jamaica the Petitioner was entitled to, and that he might be allowed the liberty of appealing to the Judicial Committee, where he was advised that he would be enabled to make manifest that the fundamental principles of law had been wholly disregarded in the Island of Jamaica, in the ruling of the presiding Judge to the jury before whom the indictment was tried, and also in the several judgments, interlocutory and final, that had been pronounced by the Supreme Court, and the several motions made on behalf of the Petitioner in the matter of the indictment and the record of conviction. Mr. McMahon, for the Petitioner. The Court below has suspended judgment, which is a substantial admission that the proceedings are erroneous. In such a case an appeal of this nature ought to be allowed. The Royal Instructions, No. 48, provide for appeals in cases of misdemeanor, when the fine imposed amounts to £200. In re Harvey (a), In re Ames (b), The Queen v. Alloo Paroo (c), The Queen v. Eduljee Byramjee (d).-[Sir John Patteson: There is no judgment here, and there can be no appeal to the Court of Error in the Island upon a criminal case of oyer and terminer. If it was made a record, then by certiorari it might go to the Court of Error in the Island.]-The refusal of the veniri de novo is a judgment. The Statute, 7th and 8th Vict., c. 69, allows any appeal direct, The Attorney-General of Jamaica v. Manderson (e), without going to a Court of Error in the Island. There is error in not allowing (a) 3 Moore's P. C. Cases, 148. (c) 5 Moore's P. C. Cases, 296. (e) 6 Moore's P. C. Cases, 240. (b) 3 Moore's P. C. Cases, 409. 1855. IN RE LEVIEN |