Mr. Kelly. I say both: it would not support the indictment, and it would not amount to felony.
Mr. Justice Maule. Inasmuch as you say it would not support the indictment, that is going on the very ground you have gone on before, only giving another reason. If you do not see that—if you tell me you do not think it—I will hear you.
Mr. Kelly. I beg to state with the most perfect sincerity, I do not feel that.
Mr. Justice Maule. You mean to insist that the indictment is not supported, having previously insisted that the indictment was not supported?
Mr. Kelly. Yes; but on a totally different ground.
Mr. Justice Maule. I do not say you are not entitled, not on the same ground to say that the indictment is not supported, but you are not entitled to say that the indictment is not supported twice over; that you cannot put forward one set of reasons, and when they are overruled, put forward another set of reasons; for if you could, in case they were overruled, you might then put a third.
Mr. Kelly. If I had had the slightest idea that it would be deemed inconvenient that I should submit one point for your Lordship’s consideration, and ask for a decision on one before I proceeded to the other, I should have submitted both; I have only to ask your Lordship’s pardon for the course I have taken.
Mr. Justice Maule. I am quite sure that you must see that where there are several grounds for making that motion, it is desirable that they should be all stated in the outset, for otherwise they might split into separate motions. The universal course is, that all the grounds should be stated, and the unity of the object preserved; and the Court yields with apparent reluctance to a different course. The object you now have is to induce the Court to rule that there is no evidence to go to the Jury. That, you have before submitted; you say you have a different reason, but that different reason does not raise a ground for the Court hearing the application repeated. I only regret you did not take the course which the Court thinks the best. If you insist upon it, I shall feel bound for the convenience of the Court, not to allow an old and very able counsel to do that which would not be fair in ordinary cases; but if you say you have made some slip or omission I will hear you.
Mr. Kelly. That is really so. If your Lordship will pardon me one moment, I will take what course your Lordship thinks most convenient for practice.
Mr. Justice Maule. You omitted something?