Full Judgment
W. Comer Petheram, C.J.
1. We think that this rule must be made absolute and made absolute on the legal ground alone. With reference to the merits of the case they have not been gone into, and therefore this Court is not in a position to form any judgment whatever, but the ground upon which we base our judgment is that these two charges have been tried in one trial, and that is an illegal proceeding under Section 233 of the Code of Criminal Procedure.
2. The charges were, first of all, a charge against five men of having committed a riot on the 5th December, 1886, and against four out of the five men of having committed criminal trespass on the 9th December, 1886. These two charges were tried together in one trial and were decided by one judgment.
3. In our opinion this proceeding was illegal within the terms of Section 233, and does not, as the Judge supposes, come within the terms of Section 234. The only matter which is common to both charges is that the dispute in each case arises out of the same land, but the charges are absolutely distinct, and the persons charged are not the same body of men. It is quite true that there were some of the persons common to both charges, but the second charge did not include all the persons charged under the first charge.
4. Under these circumstances we think that the trial was illegal, it having been a trial which is prohibited by the terms of the law as contained in Section 233, and we do not think that Section 537, which cures errors, omissions, or irregularities, is intended to cure, or does cure, an absolute illegality. For these reasons we set aside the trial and the conviction, and direct that the prisoners be discharged from custody.