evidence be clearly set out, and that on the part of the prosecution sufficiently applies to the facts alleged; and constitutes the offence charged, whatever be the evidence brought to rebut it by the defendant, every thing respecting the credit to be given to the one or the other, which would be fit to be left to a jury, must in like manner be considered as left to the opinion of the justice; and his conclusion fairly drawn from it cannot be disturbed except on appeal (g).

It follows, from what has been advanced, that the evidence adduced, and stated in the convictions, must be considered as entirely distinct from the allegations of the information, in support of which only it is exhibited; in other words, that although the information be on oath, and a sufficient general description of the offence be given in it, yet the proof of every particular which goes to establish such offence, as well as every thing adduced to exempt the defendant from the consequences of it, if any, must be exhibited on the proof. Thus it is insufficient in most cases to say, "it appears the defendant is guilty of the premises charged in the above information;" for though in convictions on the game laws, while qualifications were necessary, they were negatived in the information (h) (in order to give the justice jurisdiction, and cannot in all probability, in the nature of things, be separately and individually negatived in the evidence) (i); yet in most instances the facts which contribute to the establishment of the charge in the whole, or of some of its essential parts or bearings, (as age, quality, numbers, &c.) are open to proof by the testimony of witnesses, and necessary to be so proved (k). Thus, ex. gr. (1) under the statute against profane swearing, the quality of the defendant, under the coach regulating act, the ages of the supernumerary passengers, and under the hawker's act, the repetitions of the fact charged, go to the essence of the respective offences, and are facts susceptible of testimony, in accusation and defence (m). The evidence on both sides, it has already been observed, must be stated, that the court, on appeal, may judge whether the offence be sufficiently charged and supported; or whether the defence comprehend an excuse, a qualification, or an exemption; so as to ascertain whether the justice have drawn a right conclusion.

If the evidence set forth is such as might reasonably warrant the conclusion drawn by the justice, it will be sustained. Thus, in a con

(g) R. v. Davis, 6 T. R. 177; R. v. Smith, 8 T. R. 588; Paley, 3rd ed. 179. Exceptions, id. 181-183.

(h) See cases, Paley, 170-176.
(i) R. v. Davis, 6 T. R. 177; R. v.

Smith, 8 T. R. 588.

55.

(k) R. v. Stone, 1 East, 639; Nares,

(7) 7 East, 397; Paley, 3rd ed. 169. (m) R. v. Crisp, 7 East, R. 397.

viction for causing to be acted at a place called the Cobourg Theatre, for gain and reward, a certain entertainment of the stage called Richard the Third, where the evidence set forth was, that the defendant was seen once or twice at the rehearsals of the piece, engaged an actor to perform, and gave him a cheque for the amount of his benefit, it was held that the justices were warranted in drawing the conclusion that the defendant caused the play to be acted (n). And in the same case it was held that, from a statement that certain witnesses came before the justices, upon their oaths to them severally and respectively administered, it substantially appeared that the oath was administered to the witnesses in the presence of the magistrates (o).

Adjournments, if granted by the justices, should be stated to show that they were not made to a time beyond that limited by the act for the conviction to take place in (p).

6th. Adjudication and Form of Judgment.]-Every conviction must contain an adjudication of the defendant's having been convicted, whether the punishment be or be not fixed by the statute (q). There must also be a judgment of forfeiture (r); for it is said, where there is an appeal," it is not from the judgment of the justice as to the fact, but because he has ordered a penalty to be paid, or has committed the defendant, who wants to stay execution, or be released" from prison (s).

The conclusion of a conviction may be, and commonly is, "the said defendant is accordingly (t) convicted of the offence so charged upon him (or against him), as aforesaid, contrary to the form of the statute, &c., and I do therefore adjudge and declare that the said defendant hath forfeited for his said offence the sum of -," &c. However, the justice is not restricted to these exact words; for in one case, where the conviction (after stating the evidence) concluded thus:" and thereupon the said defendant, the said —— day of &c. before me the same justice, by the oath of one credible witness aforesaid, according to the form of the statute aforesaid, is convicted,

(n) R. v. Glossop, 4 B. & Ald. 616; Paley, 3rd ed. 180.

(0) See ante, p. 876.

(p) R. v. Tolley, 3 East, 467; Paley, 183.

(q) R. v. Harris, 7 T. R. 238. Relied on per Cur., Day v. King, 5 Ad. & E. 365; 6 Nev. & Man. 845. See Taylor v. Clemson, 3 Q. B. 1004.

(r) Paley, 191, 192, 3rd ed.

(8) Nares on Conv., 65.

(t) "Duly" held unnecessary to be added, even where the form given by the act, and intended to be followed, used that word, R. v. Jefferies, 4 T. R. 768. See R. v. Thompson, 2 T. R. 18. "It is considered that" is an unnecessary preface, R. v. Speed, Carth. 502; Ld. Raym. 583, S. C.; Paley, 3rd ed. 191-193.

and for his offence aforesaid hath forfeited, &c. :" though it was objected, that it did not appear of what the defendant had been convicted, the court held it to be sufficient (u). The conclusion, however, now advisable, is that given by 3 G. IV. c. 23 (see post). Magistrates should be careful, lest in awarding punishment, whether corporeal or pecuniary, they step beyond their powers, or an action of trespass will lie against them, though the conviction has not been quashed on appeal (x).

A defendant may be convicted of several offences of the same kind, and of several penalties in one conviction; for it is the constant practice in actions (on the game laws), and not unfrequently in convictions (y).

But whenever several acts are charged to have been committed, it must depend on the words of the statute inflicting the penalties, whether they are distinctly incurred for distinct offences, or whether the several acts done form only one aggregate offence requiring but one penalty (z). The same question often arises in regard to the acts of joint offenders, who may in some cases be liable to separate penalties, and in others, e. g. for using greyhounds, &c., to one collective penalty (a). Acts done on different days must always be treated as distinct offences (b); but different acts done on one day are liable to the distinction just taken (c), and each particular case must be decided by the wording of the statute on which the conviction is founded, assisted and fortified by the analogy of similar cases (d). It must, however, be observed that adjudication on every point to which it refers, must be precise and exact; for a judgment for too little is as bad as a judgment for too much; and this is so, whether it respect the fine, the costs, or any other portion of the penalty which has been attached to the commission of the offence (e).

In a case where the commitment was, that "the defendants should

(u) R. v. Thompson, 2 T. R. 18. See also R. v. Chandler, 14 East, R. 267.

(x) Groome v. Forrester, 5 M. & S. 314; and see Newman v. Bendyshe, 2 P. & D. 340; 10 Ad. & E. 11; Newman v. Hardwicke (Earl), 8 Ad. & E. 124; 3 N. & P. 368. As to remedy against magistrates where the conviction has been quashed, see ante, p. 95. (y) R. v. Swallow, 8 T. R. 284, 286, Lord Kenyon.

(z) Paley, 3rd ed. 196.

(a) See p. 892; and Paley, 3rd ed.

197.

(b) R. v. Matthews, 10 Mod. 27.

Brooks v. Millegan, 3 T. R. 509. Two sales of books on one day, contrary to a statute, were held to subject defendant to two penalties, the acts of sale being distinct, Bull. N. Pri. 189; 8 T. R. 284; Paley, 3rd ed. 199.

(d) R. v. Clarke, Cowp. 610. See infra; and cases collected, Paley, 3rd ed. 197, et seq.

(e) R. v. Salomons, 1 T. R. 251.

lie in prison till they pay their fine;" no precise fine being mentioned, the court quashed the conviction (ƒ).

Where a statute enacted that, on non-payment of the penalty and costs, the offender shall be committed for such a time, or until the penalty and charges shall be paid (as was the case under 6 G. I. c. 16, (repealed 7 & 8 G. IV. c. 27,) for cutting down timber trees), a conviction which adjudged him to be imprisoned a certain time, or until the forfeiture, together with the charges previous to, and attending the said conviction, be paid, but did not ascertain what the charges were, was held bad (g).

So, where 7 G. II. c. 11 (local), gave power to a magistrate for a borough, on a summary conviction there against that act, to levy the penalties by distress, together with the reasonable charges of taking and keeping such distress; a conviction, returned upon certiorari, which did not adjudge what the defendant was to pay for those charges, was admitted to be bad, and quashed (h).

a

Magistrates having power to award damages "not exceeding certain sum stated, have not power to award that sum at all events, but are to ascertain the amount of damage in each case, and award reasonable compensation according to the amount of injury proved. They cannot go beyond the extreme sum, but are not to award that sum unless damage is proved to a like amount (i).

Where magistrates are invested with discretion as to awarding corporeal punishment, their judgment must be stated on the conviction with equal certainty as if it was for paying a penalty (k). Where no discretion is given to magistrates, they must inflict the whole punishment provided by law (1).

In affixing the punishment of an offence which may be proceeded against on one or other of two different statutes, care must be taken not to blend the penalties under both (m). If distinct offences are

(f) R. v. Elwall. Stra. 794; 2 Ld. Raym. 1514, S. C. Cited, R. v. John Wilson, 3 Ad. & E. 817. See also Morgan v. Brown, 4 Ad. & E. 515; 6 Nev. & Man. 57.

(g) R. v. Hall, Cowp. 60. (h) R. v. Symonds, 1 East, R. 189; R. v. Hall being cited.

(i) R. v. Harper, 1 D. & R. 222, dict. Best, J. The conviction was set aside for not showing an offence within the act.

(k) Thus at the time when magis. trates might order incorrigible rogues to serve his majesty either by sea or land,

a conviction ordering one to be employed in "his majesty's service," without adding whether by sea or land, was held bad, R. v. Patchett, 5 East, 341.

(1) R. v. Hoseason, 14 East, 606, on 20 G. II. c. 19, inflicting, on conviction by a magistrate, the punishment of commitment to the house of correction, there to remain and be corrected, and held to hard labour. Correction, i. e. whipping, was held a necessary part of the judgment. See R. v. Salomons, 1 T. R. 252; Paley, 202, 208.

(m) R. v. Clarke, Cowp. 35; R. v. Hoseason, 14 East, 605; Paley,206,3rd ed.

charged in the information, judgment that the defendant is convicted of the said offence will be bad, for uncertainty to which offence the single penalty inflicted was referable (n).

If two Commit a Joint Offence, only one Penalty accrues.]—It is to be observed that, where a statute imposes a penalty on any person or persons who shall do an act prohibited there, if two persons do such act together, and are jointly convicted, it is deemed but one offence, and the magistrate can only inflict one penalty. Thus, where two defendants were convicted in 51. each, under 5 A. c. 14, s. 4, for using a greyhound to destroy game without being qualified, the court at once quashed the conviction; for it was only one offence, so that the magistrate should only have convicted them in one penalty (o). The selling rolls at different times on a Sunday, was also held to be only one offence (p). But if either the penalty imposed by the statute be upon each person convicted, or if the offence be several in its nature, so that the guilt of each of the parties is essentially distinct from that of the others, the parties ought to be convicted in several and distinct penalties (g). Where two were jointly convicted of an assault, under 9 G. IV. c. 31, s. 27, and a joint fine was imposed, it was held illegal, and the conviction bad in substance, so as to make them liable in trespass (r). If the penalty is ascertained by the conviction when returned to the sessions, the court above will not inquire when it was so fixed (s).

A conviction must be good in all its parts (t). The judgment in particular being an entire act, cannot be severed, so that if bad as to part, the whole is thereby vacated, though the parts may be in their nature distinct (u).

Adjudicating Distribution of the Penalty on Conviction.]-In general, the distribution of the penalty makes also a necessary part

(n) R. v. Salomons, 1 T. R. 251. Held otherwise where the particular offence for which the penalty was inflicted was stated, R. v. Chandler, 14 East, 267, 4th objection.

(0) R. v. Bleasdale and another, 4 T. R. 809; R. v. Swallow, 8 T. R. 286; Marriot v. Shaw, Comyns's Rep. 274. (p) Crepps v. Durden, Cowp. 640. (9) R. v. Drake, Stra. 489, a deerstealing case;—R. v. Clarke, 610, cases of several killing one hare, or drawing one net for birds, or rescuing goods

from custom-house officers, resisting and assaulting them ;-R. v. Hube, 5 T. R. 542, joint disturbance of tolerated congregation; Crepps v. Durden, Cowp. 640; R. v. Elwall, Stra. 794; 2 Ld. Raym. 1514, S. C. Ante, p. 890, 891. (r) Morgan v. Brown, 4 Ad. & E. 575; 6 N. & M. 57, S. C.

(8) 2 Ld. Raym. 1514; R. v. Layton, 1 Salk. 352; Paley, 207, 3rd edit. (t) 1 T. R. 251; Paley, 208.

(u) R. v. Catherall, Stra. 900; Paley, 205, 208.