Mr. Kelly. My Lord, after what has fallen from your Lordships, of course I shall not hesitate to address the Jury upon the evidence which has been offered by my learned friend. There are one or two points, however, to which I would call your Lordship’s attention, and bring the terms of the statute under the attention of the Court; which, I apprehend, will be fatal to the prosecution, without troubling the Jury with observations which may extend to a considerable length of time, and which I shall feel it my duty to bring before the Court.
Mr. Justice Maule. Do you mean something in arrest of judgment?
Mr. Kelly. No, my Lord; on the effect of the evidence.
Mr. Justice Maule. I cannot think it is at all right that the question whether the case should go to the Jury should be twice put.
Mr. Kelly. No, my Lord. I say, supposing even that the charge is well made, that it is not an offence within the Act of Parliament.
Mr. Justice Maule. It comes to the same thing; I cannot see what you mean to say to the Court, except that the indictment is bad. That you state you do not propose to say?
Mr. Kelly. It is not that which I first contended.
Mr. Justice Maule. You did not propose to say that, and you now propose to say that the indictment is bad?
Mr. Kelly. My Lord, there is one point on which I do contend that the indictment is bad, though that is not the point to which I would call your Lordship’s attention. I was first about to submit to your Lordship, that the offence charged upon the evidence is not a felony within the Act of Parliament.
Mr. Justice Maule. That it does not support the indictment?