/////

THE PRACTICE

OF THE

CRIMINAL LAW

OF THE

(&0I01TJT 0f fflirtaxm.

HENRY FIELD GURNER,

CROWN SOLICITOR OF THE COLONY.

MELBOURNE : STILLWELL & KNIGHT, PRINTERS, COLLINS STREET EAST. 1871.

PREFACE.

The long service of the compiler of these pages, in the office of Crown Solicitor of the Colony of Victoria, has in­ duced him to believe the publication by him of a concise and practical exposition of the ordinary course of procedure in a Criminal case in the Colony will be a useful work. The design of this publication is to apply the practice of the Criminal Courts in England, as found in the various writers on Criminal Law, and as altered by the Statutes of the Imperial and Colonial Parliaments, to the Criminal Courts of this Colony, and to give to those engaged in the apprehension and prosecution, or in the defence, of accused persons, the various necessary steps and forms, arranged in a familiar and practical order. How far the compiler has succeeded in his object, it is not for him to determine. On the one hand, he is aware many defects may, and not improbably will, be discovered in this publication; but, on the other hand, he trusts that his labours may receive the indulgence usually accorded to the efforts of a new author; and on the whole he hopes his labours will be found not altogether useless.

CONTENTS

CHATTER I. PAGE Of Crimes and their Division ...... 1

CHAPTER II. Persons capable of committing Crimes ...... 4

CHAPTER III. The Prosecutor ...... 11

CHAPTER IY. . Arrest ...... 12

CHAPTER Y. Extradition ...... ' ...... 21

CHAPTER YI. Breaking open Doors—Searching and Hand-cuffing Prisoners ... 21

CHAPTER YII. Seizing Property of Persons Arrested ...... 2(3

CHAPTER YIII. Search Warrants ...... 28

CHAPTER IX. Special Constables ...... 30 CHAPTER X. Summary Jurisdiction of Magistrates over certain Offences ... 33

CHAPTER XI. Examination and Commitment ...... 38 CHAPTER XII. Examinations before Coroners, and Exhumation of Dead Bodies 41 CHAPTER XIII. Bail •...... 45 VI CONTENTS.

CHAPTER XIV. page Transmitting Depositions etc., and filing Information ...... 52

CHAPTER XV. Supreme Court ...... 53 CHAPTER XVI. Opening and Sitting of the Court ...... 55 CHAPTER XVII. Venue...... 58 CHAPTER XVIII. The Information ...... 60 CHAPTER XIX. Ex officio Informations and Informations by leave of the Court 89 CHAPTER XX. Process on an Information ...... 91 CHAPTER XXI. Arraignment ...... 95

CHAPTER XXII. Particulars of the Charge ...... 102 CHAPTER XXIII. Oaths ...... 103 CHAPTER XXIV. Holle Prosequi...... 106 CHAPTER XXV. Demurrers, motion to quash the Information, and Pleas...... 107 CHAPTER XXVI. Insanity...... 116

CHAPTER XXVII. The Jury ...... 124

CHAPTER XXVIII. Postponing Trial ...... 141

CHAPTER XXIX. Opening Statement of Council ...... 145 CONTENTS. Vll

CHAPTER XXX. PAGE Confessions and Admissions...... 146

CHAPTER XXXI. Dying Declarations ...... 149 CHAPTER XXXII. Adjourning Trial ...... 156 CHAPTER XXXIII. Defence and Statement of the Accused ...... 158 CHAPTER XXXIV. Reply and Rebutting Case ...... 162

CHAPTER XXXV. Verdict...... 163 CHAPTER XXXVI. Judgment ...... 169 CHAPTER XXXVII. Hew Trial ...... m . CHAPTER XXXVIII. Arrest of Judgment...... 176 CHAPTER XXXIX. Crown Cases reserved...... 177 CHAPTER XL. Commitments for Contempt and ...... 182 CHAPTER XLI. Restitution of Stolen Property ...... 184 CHAPTER XLH. Estreating and Discharging Recognizances ...... 186 CHAPTER XLirr. Discharging Prisoners...... 188

TABLE OF IMPERIAL STATUTES.

PAGE PAGE 3 Edwd. 1, c. 15 - 50 1 & 2 Wm. 4, c. 41, s. 1 32 ------2, de Catallis Felo- 6 & 7 c. 114, s. 1 158 nium - . . 27, 28 1 & 2 Viet., c. 45 - . 50 25------3, st. 5, c. 2 . ]., 63 3 & 4------c. 97, s. 15 80 1 Biclid. 3, c. 3 - - 27 6 & 7 c. 34, s. 1 21 3------3 . . . - 28 b. U9 21 21 Hen. 8, c. 11 - - 186 b.G A. 22 37------8, c. 8 - - 85 s. 5 23 29 Clias. 2, c. 7, is. 6 - 13 s. 6 23 31------2, c. 2 - 50, 188 s. 9 22 s. 7 - 189 c. 75 - 23 lWmlM st.2,c. 1 - 50 c. 76 23 st. 2, c. 2 - 49 7 & 8 c. 66, s. 16 127 22 Geo. 2, c. 58, s. 2 - 28 8 & 9 ------c. 120 - 23 25------c. 36, s. 5 - 13 11 ------c. 12- . 136 14 Geo. 3, c. 20 - 188 11 & 12----- c. 12- . 1 36 c. 7 - 1 c. 46, s. 1 62 36------c. 7, s. 1 - 63 e. 78 - 179 48------c. 58, s. 1 - 91 12 & 13------c. 106, s. 117 148 57------c. 6 - - 1 16 &17----- c. 118 . 21 60------m . . - 90 18 & 19----- c. 91, s. 21 54 1 Geo. 4, c. 4, s. 8 - 90 22 & 23----- c. 17, s. 2 187 s. 9 - 90 24 & 25---- - c. 94, s. 1 62 7&8------c. 29, s. 25 80 c. 96, s .100 186 c. 29, s. 57 186 25 & 26------c. 70- . 23 9------c. 31, s. 6 - 172 29 & 30----- c. 121 . 24 c. 55. s. 50 186 TABLE OF VICTORIAN STATUTES

PAGE PAGE 15 Viet., No. 10, s. 11 - 53 27 Yict., No. 233, s. 237 - 50 ------s. 12 12,53 ------s. 262 - 36 « 19 _ on ------s. 268 - 36 « 17 54 ------s. 274 - 62 . . - r, IQ 59 ------s. 275 - 61 10 1 llTVn U* d D#c X\J10 90 ------s. 280 - 37 Ol AiNo U. 9ft D.a “. 82 ------s. 284 - 37 on 1 111\Tr» U* JLeJ/107 9 b*o U01 JJ 105 ------s. 286 - 170 S 42 105 ------s. 288 - 171 160 ------:----- s. 295 - 37 ... -- « 50 158 ------s. 298 - 170 . - « 53 158 ------s> 299 - 65 - - 57 146 ------s. 302 35, 37 on ...... ii U» muO) o* DO 35 ------s. 303 - 37 " - *- b.« 0%Jon 35 ------s. 307 - 37 b. Lxi 78 ------s. 308 - 171 . ... r, 33 ------s. 315 - 171 67 34 ------s. 321 53, 188 35 ------s. 322 - 58 " 70 37 ------s. 323 - 58 « 73 35 ------s. 325 - 58 « 70 36 ------s. 326 - 58 rt gQ 36 ------s. 327 - 58 « 36 ------s. 328 - 58 " 8° 36 ------s. 329 - 58 - « 93 36 ------s. 330 - 59 36 ------s. 331 - 62 . . r, Oft 36 ------s. 332 69, 74, ■ “- b.« O/97 36 75, 78, 82, 84, 85, 87, 176 36 ------s. 333 - 77 « 09 36 ------s. 335 _ 80 « 00 36 ------s. 336 - 87 « 100 36 ------s. 338 - 83 , q 101 36 ------s. 339 64, 71 - 10° 36 ------s. 342 64, 71, « 103 36 87 « 13H 36 ------s. 343 - 78 1 b.« JL19704 36 ------s. 345 64, 86 b.0, A'lO1 Aft 148 ------s. 346 - 82 36 ------s. 347 - 82 ..... « i nn 36 ------s. 348 - 82 ...... - r, -inn ...... 1 • a. 1/ / 36 ------s. 350 - 82 . _ . - - ino 36 ■------s. 352 - 87 - 100 36 ------s. 353 65, 69, - .... « 101 36 81, 176 ------s. 194 36 ------s. 354 107,141 TABLE OF VICTORIAN STATUTES. xi

PAGE PAGE 27 Yict., No. 233, s. 35G G3, 97, 28 Yict., No. 217, s. 21 - 38 107, 108,109, 110 ------No. 251, s. 3 - 183 ------s. 357 97, 110 ------s. 9 - 111 ------s. 358 99, 123 ------No. 253, s. 7 - 47 188 ------s. 8 - 47 ------s. 359 - 114 ------s. 10 - 41 ------s. 300 - 115 ------2nd sclied. ------s. 301 111, 113 45, 47 ------s. 3G2 - 101 ------No. 254, s. 1G - 77 ------s. 3G4 - 158 ]So. 2(>5, 1st part - 17 ------=------s. 3G5 7G,77,83 ------:------2nd „ - 17 ------s. 3GG - 123 3ul „ - 18 ------s. 3G7 GG, 1G8 ------s. 19 - 37 ------s. 3G8 GG, 141, ------s. 50 - 17 1G8 ------s. 58 - 48 ------s. 3G9 GG, 1G8 ------No. 207, s. 15 - 54 ------s. 370 GG, 1G8 ■------s. 22 - 182 ------s. 371 GG, 1G8 ------s. 20 - 12 ------s. 372 GG, 1G8 ------s. 39 - 182 ------s. 373 G4, GG, ------s. 52 12, 13 1G8 ------s. 54 - 13 ------s. 374 GG, 168 ------s. 55 91, 93 ------s. 375 67, 1G7 ------s. 56 - 94 ------s. 37G 67,1G8 ------s. 57 - 13 ------s. 377 - 64 ------s. 00 - 13 ------s. 378 62, 1G4, ------s. 03 - 13 ' 168 ------s. 07 - 39 ------s. 379 - 64 ------s. G9 - 38 ------s. 3S0 G7, 1G8 ------s. 79 39, 40 ------s. 383 - 158 ------s. 80 - 44 ------s. 389, 12,173, ------s. 81 4.4, 158 177 ------s. 82 40, 150 ------s. 390 173,178, ------S> 83 - 42 181 ------s. 84 - 52 ------s. 391 - 180 ------s. 88 - 42 ------s. 393 - 184 ------s. 89 - 42 ------s. 394 - 81 ------s. 90 45, 47, 19 ------s. 399 184, 18G ------s. 91 - 48 ------s. 400 - 35 ------b. 92 - 4G ■------s. 401 1G, 28 ------s. 93 - 47 ------s. 402 - 1G ------s. 94 - 47 ------s. 403 - 1G ------s. 95 - 47 ------s. 405 - 1G ------s. 90 - 42 ------s. 40G - 16 ------s. 98 - 43 ------s. 407 - 29 2nd sclicd. 28 ------s. 408 - 29 ------21st „ 40 28------No. 234, s. 82 - 77 form 22 - 43 ------• QO ------s. 92 - 148 . >> - 43 ------No. 241, g. 5 - 186 ------o.i - 43 ------No. 247, s. 13 - 30 ------„ 31 - 40 ------s. 14 - 31 „ 32. - 4G ------s. 15 - 31 „ 33 - 47 —------s. 16 - 31 ------No. 272, s. 2 - 124 ------—------s. 19 - 32 ------s. 4 - 124 ------20 - 31 ------s. 5 - 124 xii TABLE OF VICTORIAN STATUTES.

PAGE PAGE 28 Yict., No. 272. s. G - 124 28 Yict., No. 272, s. 27 - 137 ------s. 7 - 124 s. 30 - 125 ------s. 8 - 124 s. 31 56, 126 ------s. 9 - 124 ------s. 33 - 126 ------s. 10 - 124 s. 34 - 134 ------s. 11 - 124 ------s. 35 126,137 ------s. 12 - 124 s. 36 - 135 ------s. 13 -124 ------s. 37 56, 133 ------s. 14 - 125 ------s. 38 56, 127 ------s. 10 - 124 s. 30 - 127 ------s. ir . 124 ------s. 40 - 139 ------s. 21 125, 137 ------No. 273, s. 94 - 118 ------s. 23 -125 20 Viet., No. 208, s. 85 - 78 ------s. 24 - 125 31 Viet., No. 309, s. 0 - 123 ------s. 25 - 155 32 & 33 Viet., 338 - - 45 ------S. 26 -125 ------Viet., 355, s. 17 - 29 TABLE OF CASES,

pa on Adams v. Moore, - 2 Sclwyn, N.P., 11th cd. 901 . 24 Adams v. Parker, - Bail Ct., England, 14th Nov., 18CG 184 Allen y. Wright, - 8 C. and P. 522 - - ' 25 Anon, - - - 4 C. and P. 255, noto - 154 C C. and P. 408 - - 75 - 1 Cliitty, GO8 - - . 102 >» " ” 2 „ 422 - - 137 >» " “ - 5 Cox, 2G8 - - - 101 „ • - 3 Mod, 2G5 - - 101,107 If " " - G Mod, 231 - - - 48 >> * * G Mod. Rep. 1G - - 95 11 * " - Lofft 28 - - - 109 » - * „ 42 - - - 1G9 ft “ “ - „ 68 - - - 1G9 Attorney-Gen. of Prince of Wales y. Crossman, - 14 L.T. 85G - - GO Attorney - General v. Lord Churchill, - - - 8 M. and W. 171 - - 59 Baker v. Townsend, - 7 Taunt, 422 - - 11 Beckwith v. Philby, - - G B. and C., G35 - - 1 5, 24 Beeley v. Wingfield, - 11 East, 4G - - 11 Bowden v. Warren, - Keb. 1G ... 79 Bowen v. Shapcott, - - 1 East, 544 - - 109 Brewer and Wilstone, re expte. Baker, - - - 2 W. and W. 13G - _ 59 Briggs v. Aynsworth, - 2 M. and It. 1G8 - - 1G3 Broughton v. Jackson, . 18 Q. B., 378 - - 25 Brown v. Craskaw, - - 2 Bulstr, 154 - - - 134 „ v. Murray, - 4 Bow. and It. 830 - 144 Browne v. Cumming & others, 10 B. and C. 70 - - 87 Bruce v. The Queen, . 2 W.W. and a’B., 199 - 90 Brunskill v. Giles, - 2 M. & Scott 41, 9 Bing 13, S.C. 130 Brustow v. Henson, . 10 M. and W., 105 - - 15 Burdett v. Abbott, - . 14 East, 1G3 - - 24 Campbell v. B. - - 11 Q.B., 799, 35 L.J., M.C. 133 1GG it a * - „ ,, „ 814 - - 172 Cecil v. Others of Town of Nottingham, - - 12 Mod. 348 - - - 13 Cohen v. Huskisson, - 2 M. and M., 477 - . 17 Collins v. Blantern, - - 2 Wils., 341 - - - 11 Coppin In Re, - - 2 L.It., Ch., 47 - - - 22 Coster v. Merest, - - 2 B. and Bing, 272 - - 142 Cox v. Coleridge, - - 1 13. and C., 50 - - - 42 Crozier v. Cundy and others 1 ~ 6 B. and C., 232 - - 29 Curtell v. Bambridge, - 2 Stra., 855 - - - 51 Boo v. Nicoll, - - 1G Q.B., 805 . - - 163 xiv TABLE OF CASES.

PAGE Downing v. Capel, - 2 L.R.C.P., 401 - - 20 Dnberly v. Gunning, - - Peakes’ Rep., 97, 98 - 144 Edgcomb v. Dodd & anotlier, 5 East, 291 - - - 11 Eicliom v. Lemaitre, - - 2 Wils. 807 - - 109 Everett v. Youells, - 4 B. and Ad., 081 - . 138 Fernandez In Re, - - 0 II. and N., 717 - 184 Fletcher v. Crosbie & others, 2 M. and Rob., 417 - - 159 Fletcher expte., - - 18 L.J., M.C., 07 - 43 Fletcher v. Fletcher - - 1 E. and E.,420, 28 L.J., Q.B 134 17 Galliard v. Laxton, * 81 L.J., N.S., M.C., 123 - - 15 Goddard v. Smith, * - 0 Mod., 201 - - 100 Gregory .V. 11., - - 15 Q.B., 974 - - - 170 Grifiin v. Coleman, - 4 H. and N., 205 - 15 Hale v. Burton, • - 3 A. and M., 310 - - 24 Ilandcock v. Baker, - 2 B. and P., 200 - 25 Hanway v. Boultbec, - - 4 C. and P., 350 - - 20 Hayleyv. Grant, * - Say Rep., 03 - - 142 Heyward v. Lypson, - - Cro. Eliz., 809 - - - 128 Iliil v. Yates, - - 12 East, 231 n - 133 Hogg v. Ward, - - 3 II. and N., 417 - - 15 Ilolyday v. Oxcnbridge, - Jones, 249 - - 17 Home v. Swinford - 3 Dow. and R., M.C., 301 - 48 Horley v. Rogers, - - 2 E. & E„ 074, 29 L.J. M.C., 140 20 Howard v. R. - - 11 Law. T., G29 - . 175 Humphrey expte., - - 10 L.J., M.C., 189 - - 43 Ingle v. Bell, - - 1 M. and W., 510 - - 17 Inter the inhabitants of St. Andrews, Holborn and St. Clement Danes, - - 2 Salk, 00G; 0 Mod, 287, S.C. 173 Jones v. Macquillon, - 5 T.R., 195 - - - 75 Keir v. Leeman and another, 0 Q.B., 308 - - - 12 King v. Antrobus, - 2 A. and E., 808 - - ' - 171 „ Holden, - - 5 B. and A., 354 - - 59 „ Marsack - - G T.R., 770 - - _ 79 „ R. - - - 18 L.J., Q.B., 253 - - 172 Ivirk v. Strickwrood, - 4 B. and Ad., 421 - . 12 Lannock v. Brown, - - 2 B. and Aid., 502 - - 24 Latham v. R., - - 5B. &S.,G35; 53L.J.,M.C., 197, 107 Laurence v. Hedger, - - 3 Taunt, 14 - - - 15. 17 Lee v. Clarke, - - 2 East, 233, 202 - - . 78 »» “ " " 2 East, 333 - - - 79 Leigh v. Cole, - - 0 Cox, C.C., 329 - . 25 Levy v. Edwards, - - 1C. and P., 40 - - 15 Lewis v. Arnold, - - 4 C. and P., 354 - - . 15 Linford v. Fitzroy, - - 13 Q.B., 240 - - - 50 Lord v. Cooke, - - 1 Bla. Rep., 43G - - . 144 Lynn expte. - - 3 Stark 132 - - - 48 Mahew v. Parker, - - 8 Durnford and East, 110 - 91 Mansel v. Reg., - - 8E.&B., 54; IDear&B. C.C., 375, 136 Marsh v. Loader, - - 14 C.B., N.S., 535 - - 5 Matthews v. Biddulph, - 3 M. and G., 390 - _ 25 Mayor of Carmarthen v. Evans, 10 M. and W., 274 - - 130 Mee v. Reid, - - Peakes’ N.P., C., 23 - . 104 Morrison v. Kelly, - - 1 Wm. Black, 385 - - 87 Morris v. Wise, - - 2 F. and F., 51 - - - 20 TABLE OF CASES. XV TAGE Mure v. Kaye, - - 4 Taunt, 34 - - - 15, 24 Murray v. Re". - - 7 Q.B., 700; 14 L.J, Q.B., 357 - 172 Nash v. The Queen, - - 33 L.J., M.C., 94 - - 74, 81 Nicholson v. Hardwick, 5 C. and P., 405 - - - 15 O’Brien v. Reg. - - 2 House of Lords, Cases, 4G9 132 >> ,, - « „ „ 405 107 O’Connell v. R. - - 11 Cla. and Fin., 155 - 172 Omichund v. Barker, Willes, 549 - - 103 - if a “ 1 Atk. 21; 1 Smith’s Lead, cases, 5 Ed., 381 - - - 104 Pater expte. - 5 Best and S., 299 - 183 Pollard In He, - Law R., 2 P.C., 100 - - 183 Prescott v. Carpenter, 1 Ld. Raym, 231 - 170 Ramsay v. Mayne, - Sup. Ct„ N.S.W., 11 Oct. 1854 28 Rawlins v. Ellis and others, 10 M. and W., 172 - 13 R. v.------R. and R., C.C.R., 489 - 75 „ Allen, - 1 Dea. C.C., 304 - G %t a m * 1 Best and Smith, 850 - 100 9 Cox., 120 - - 100 Stafford Lent Assizes, 1807, M.S. 122 „ Andrews, - 2 D. and L., 10 - - 52 „ Arnold, - - 8 St. Tri., 317 - - 7 8 C. and P., 021 - - 52 10 Howells St. Tri., 704 - 110 „ Ashton, - 2 Lew. 147 - - 151 „ Asken, - - 3 M. and S., 9 - - 175 „ Atkinson, - 1 Russ., 47 - - 9 „ Atkinson, - 1 Salk, 382 - - - 01 „ Austin, - 7 C. and P., 790 - - 05 »» >t " * Dears, C.C., 015 - - 44 „ Aylett, - 1 T.R., 70 - - 79 ft ft " " 8 C. and P., 0G9 - - 43 „ Badger, - 4 Q.B., 4G8 ; 3 Bos. and P., 551 50 „ Baker, - - 2 M. and Rob., 53 - - 152 „ Bailly, - 2 Cox., 191 - - 88 „ Barber, - - 1C. &K..434; ljCox. C.C., 02 159 „ Barnett, - 3 C. and P., 000 - - 28 „ Barres, - Moore, 557 - - - 128 „ Barronet, - lE.andB., 1, - - 10 i> it - * 1 Dears, C.C. R., 51 - - 10, 49 „ Barthelmy, - Dears, 00; 9Dow.,N.S., 553 49 t> i> * 1 E. and B., 8 Dears, C.C., 00 50 „ Bartlett, - 7 C. and P., 832 - - 40 „ Barton, - - 1 Moo., C.C., 141 - - 81 n t> " 3 Cox, C.C., 275 - - 121 „ Bateman, - 4 F. and F., 1008 - - 44,154 „ Batten, - - G T.R.. 559 - - - 81 „ Bass, - - 2 C. and K., 822 - - 28 „ Baxter, - - - 5 T.R., 84 - - - 72 it it * - „ 83 - - 81 „ Baylis, - - - 4 Cos., C.C., 23 - - 141 „ Beadmore, - - 7 C. and P., 497 - - 144 „ Beaney, - - - 3 W.W. and A.B., 73 - 44, 45 „ Beard, - - 8 C. and P., 142 - - 100.103 „ Beardman, - - 7 C. and P., 497 - - 50 XVI TABLE OF CASES. PAGE B. v. Beckwith and others, 7 Cox., 505 - - - 162 Belton, - - 5 Jur., (N.S.) 276 - - 159 >» Beeston, - Dears, C.C., 405 - - . 39 Beezley, - 4 C. and P., 220 - - 88 >» Bell, - 8 Cox., 287 - - - 59 >* Bellingham, Collison on Lunacy, Addenda, 63G 59 „ Benfield, - 2 Burr, 084 - - 60, 65, 72 „ - „ 085 - -- 61 » Bent, - 1 Den., C.C., 157 - - 80 »> Berriman, 0 Cox., C.C., 888 - - 20 „ jj ” 5 C. ancl P., 001 - - 75 Bertrand, L.R., 1 P.C., 520, 10 Cox., 018 - 173 >> Best, - 10 L.J., M.C., 102 - - 32 „ Beverley, 4 Co., 125 - - 8,116 »» Biers, - 1 A. and E., 327 - • 79 >> Birch, 0 Cox., 10 - - - 143 >> Birmingham and G.W. Railway, - Co., 3 G.B., 224 - - 109 »> Biss, - 2 Moo., C.C., 93: 8 C. & P., 773 70 jj Bitton, - 6 C. and P., 92 - - Ill >> Blackburn, G Cox., C.C., 333 - 158,163 »» Blackson, 8 C. and P., 43 -- 65 >> Blakcmorc, - 2 Den., C.C., 410 - - 180 >> Boardman, 2 M. and Bob., 147 - - 81 „ Bodkin, * 9 Cox., C.C., 403 - - 20, 148 >» jj - „ j, 404 - - 146 „ Bolam, - 2 M. and Bob., 192 - - 142 >> Boland, - 2 Mod. and Bob., 192 * - 141 >» Bonner, - 6 C. and P., 386 - - 151, 152 »> Booth, - B. and B., 7 - -- 72 Bootyman, - 5 C. and P., 300 - - 102 jj Botficld, 1 Jur., B.S., 594, Q.B. - - 174 >j Boucher, - 8 C. and P., 141 - - 160 jj Bowen, - 9 C. and P., 509 - - - 143 „ Bowler, - Collision on lunacy, 673 - 121 jj 55 " 7 C. and P., 773 - - - 146 jj Bowman, - G C. and P., 101 - - 142 jj Brady, - B. and B., 268 - - - 170 jj Brangan, - 1 Leach, 27 - - - 87 jj Brettcl, - C. and M., 609 - - - 114 jj Bridgman, - 1 C. and Mar., 271 - - 144 jj .j and another, - 1 Car. and Mar., 271 - - 187 jj Brimilow, - 2 Moo. C.C. E., 122 - - 6 „ Brinklctt, 3 C. and P., 416 - - - 76 jj Briggs, - 2 M. and E., 199 - - 163 jj Brogan, - Boscoe, Crim., Ev.,61, 1834 - 156 „ Broughton, - Trem, P.C., 111 - - 66 „ Brown, - 1 Den. C.C., 291; 17 L.J.,M.C,:145 97 „ jj " - „ „ 291 - - 115 jj jj * - Moo. and M., 163 - - 78 jj jj * - 25 Bov., 1869, Sup. Ct., Mclb. 89 jj Browne, . 7 Cox., C.C., 442 - - 90 „ Brummit, - . L. and C., 9 - - - 181 jj Bulmer, - . L. and C., 482 - - - 67 jj ■ Buncombe, - - 1 Cox., C.C., 183 - - 9 TABLE OF CASES. xvii TAOB E. v. Burchct, 1 Show, 10G - - - 89 Burdctt, - . Dears, C.C., 431 - - 1G0 Burgiss, - - 7 C. and P., 488 - - 28 jj Burnaby, - - 8 Mod., 14G - - - 59 jj Burke, - - - 11 Cox., C.C., 138 - - 128 jj Burkett, - Audc, 230 - - - 110 Burnet, - - 4 M. and S., 274 - - 8G jj Burridge, - 3 P, Wins., 499 - 110, 177, 188 jj Burrows, . 2 M. and Eob, 124 - - 1G2 jj Burton, - 3 R and R, 772 - - 121 jj „ and others, 2 F. and F., 788 - - - 163 jj Butcher, - 2 M. and B., 228 - - 1G3 jj Butterworth, - E, and E., 520 - - - G2 j j Caldwell and another, 2 Wy. and W., 208 - - 155 jj Callaghan, - McNally, Ev., 385 - - 153 jj Cantwell, - G Cox, C.C., 315 - - 59 jj Carlile, - - 2 B. and Ad., 302 - - - 106 jj Carlisle, - G C. and K., G36 - - 9G jj Carrol, - - 7 C. and P., 145 - - - 8 jj Carter, - 9 Jur., 178 - - - 173 jj Cassidy, - 1 F. and F., 79 - - - 88 jj Caudwell, - 17 Q.B., 503 - - - 175 jj Cavendish, . 2 Cox., 175 - - - 59 jj Chalkcly, - E. and E., 258 - - 80 •j Challicombo, - G Jur., 481 - - - 175 jj Chamberlain, G C. and P., 93 - - 114, 142 jj Chapman, - 8 C. and P., 558 - - 51, 143 jj Chard, - E. and E., 488 - - 72,83 jj Charlesworth, . 1 Best and S., 4G0 - - 110 jj jj „ „ 31L.J.M.C. 25 139 jj jj - JJ JJ JJ „ 20,140,141 jj jj 2 F. and F., 320 - - 140 jj Charnock, . 3 Salk., 81 - - - 133 jj Cheere, - 7 D. and E., 401; 4 B. & C., 902 1 B. and Adol., 8G1 - 09 jj Chesam, Sarah, 3 Euss. C. and M., 4 Ed., 418 - 155 jj Chichester, - 2 Den., C.C., 458 - - 170 jj Chidley, - 8 Cox, C.C., 36t> - - 147 jj Christie, - Carr. Supp., 202 - - 150 jj jj " - 1 F. and F., 75 - - - 102 jj Cranmer, - Lord Baym., 721 - - 10G jj Cristopher, - 1 Den., C.C., 530 - - 39 „ Clarke, - 1 East, 4G ; 2 Camp., 132 - 03 jj jj ■ - 2 F. and F., 2 - - 53,153 jj jj - L. Eep.. C.C., 54 - - 178 jj jj . E. and B., 358 - - 75,77 jj Cleary, - 2 F. and F., 850 - - 44 jj Clement, . 4 Bar. and Aid., 218 - - 183 jj Clcndon, - . 2 Ld. Baym, 1572 cont., 2 Scss. Cas.24 No. 28 S.C., 2 Stra.870 72 jj Clowtcr and another, 8 Cox., C.C., 237 - - . 97 jj Cobbctt, - - 3 Burn J., 30 Ed, 98 - - ' 139 jj Cohen, - - 1 Stark, N.P.C., 510 - - 174 jj Coldwell, - . 2 W. and W., 208 - - 44

” Colling and another, - 2 Cox., 181 - - - 100 b xviii TABLE OF CASES. PAGE E. v. Compton, . 7 C. and P., 139 - - 80

It Connor, - 1 Cox., C.C., 233 - _ 158 f „ and anotlier, it it it m " 88 a Connors, j 11 Irish Jurist, p. 2G3 - - 159

it Cook, _ 13 St. Tri., 334 - - 130

it Costello, - Sup. Ct., Yict., 17 Sept., 1801 - 00 - •5 tt i # 1 W. and W.f 90 - - 59 it Courvoisier, . 9 C. and P., 302 - - - 145

it Constable, - 7 D. & It., 003: 3B&Adol., G5Qn, 169 ti Craddock, 2 Den. C.C., 31 - - - 70 it tt - ,, „ ,, 20L.J. M.C., 31 178 tt Craggs, Jane, - - - - . 44 a Craven, - E. and E., 14 - - 83 - tt tt" _ 1 Lew., 87 - - 151 tt Crawshaw, . 1 Bell, C.C., 303 - - 10 - - it Crcan, 8 Cox., 509 - - 145

it Creep, - Comb’s Rcpts., 400 - - 70 „ Crighton, - E. and R., C.C., 02 - - 85 . it Crockett, 4 C. and P., 544 - - 150, 151 _ it Croucb, 1 Cox., C.C., 94 - - 123, 140

tt Crowliurst, - 2 Ld. Eaym, 1303 - - 71

tt CufFcy and others. Central Crim. Ct., Sept., 1848 136 - ti Curran, - 3 C. and K., 394 - . 20 - it it 3 C. and P., 397 - - 20 _ tt Curwood, 3 A. and E., 815 - - . 103 a Dalmas, - 1 Cox., C.C., 95 - - 151 tt Daly, - - 9 C. and P., 342 - - 11 tt Davies, - 1 L. M. and P., 323 - - 43 - - tt a ~ Sup. Ct., Yict., 13 Sept., 1809 59 tt Davis, - 7 C. and P., 319 - - 78 tt it " - 7 C. and P., 785, 78G - . 145 it tt - 3 F. and F., 19 - - 65 - _ tt a “ 1 Leach, 550 - - 80 tt Davison, - ' 4 B. and Aid., 329 - - 183 it Dawson, - 1 Stra., 19 - - . 165 tt Day, - 0 Cox., C.C., 55 - - 39 tt a ■ - Say Eep., 203 - - 174 tt Deacon, - E. and M., 27 - - 110, 139 tt Deane, - - 5 Cox., 501 - - - 140 tt tt - 1 Hale, 25, Hote (u) - - 5 tt tt ■ - 1 Leach, 470 : 2 Leach, 712, n.a. 115 „ Dccring, - 5 C. and P., 105 - - 145 tt D’Eon, - - 3 Burr., 1514; 1 Bla. Eep., 510-14 143 i j..

tt a 1W., Bla., 517 ~ - 128 tt Despard, - 2 M. and R., 400 - - 131 a Devett, - 8 C. and P., 039 - - 71 tt De Walborough, 1 Hale, 20 - - . 5 „ Dickenson, - 1 Saund., 135 n (3) - - 79 it Dicks, - 1 Russ., 34 - - - 9 a Dingier, - 2 Leach, 501 - 150, 152, 153 „ Doherty, - 5 Cox., C.C., 348 - - 184 „ Dolby, - 2 B. and C., 104 - - - 132 11 it - 1 C. and K., 238 - - 129 tt Douglas, -- 1 C. and M., 215 ; 1 Cox., 200 - 96 TABLE OF CASES. xix TAGE R. v. Dowlin, - - 6 T.R. 311, 317 - - 74

a Dowling, - - Cen. Crim. Ct., 1818, Arch., C.P., 10 cd., 153 - - - 145 j * tt ■ - 3 Cox., 509 - - 87, 97, 137 Drummond, - - 1 Leach, 337 - - - 153 a 5) " - 11 Mood., 200 - - 187 if Drury, - - - 3 C. and K., 190 - 112, 114 if - „ „ 200 - - 110 a Duflin, - - - It. and It., 305 - - - 73

a Duke, - - 1 Salk., 400 ; 1 Ld. Raym, 207 177

if Dunn, - - - 1 C. and K., 730 - - - 100

a „ ct al.t - - 1 Mood., C.C., 140 - - 04

if Dwyer and others, - 3 Russ., C. and M. 4th. cd., 403 15G if Dyer, - 1 Cox., C.C., 113 - - 101, 102

a Dyson, - - - York, Sp. Ass., 1831 - - 7

if Earnsliaw, - 15 East, 456 - - - 81

if Edward, - - 4 T.R., 440 - - - 49

if Edwards, - R. and R., 497 - - 83

if - „ „ 224; 4 Taunt, 309 - 139

if Edmonds, - 4 B. and Aid., 471; 129, 130, 131, 132 134, 136 „ Eggington, - - 2 B. and P., 508 - - - 05

if Eldershaw, - 3 C. and P., 390 - - 6

if Eldridgo, - - R. and R., C.C., 410 - - 146

ft Elliot, - 8 C. and P., 772 n. - - 76

tt Ellis, - - . R. and M., 432 - - 40, 148

if Entrehman, - 1 Car. and M., 218 - - 104

it Errington, - - 2 Lew., 148, - - - 151

it Esop, - 7 C. and P., 450 - - 10 - it Evans, - - 8 C. and P., 765 - * - 75

a Everett, - 2 Man. and R., 35;i S.C., 8 B. and C., 114 - - G8

ii Faderman, - - 3 C. and K., 353 - - - 109.

a ,, - 1 Den., C.C., 505 - - 178, 179 it Fa gent, - - . 7 C. and P., 238 - - 151, 154 ii Falkncr, - R. and R., 481 - - 146 a Fauntleroy, - - 1 Moo., C.C., 52 - - - 182 tt Fcamley, - 1 T.R., 310 - - - 73 a Fenwick, - . 1 Sid., 153 - - - 175 it Ferrers, (Lord) 19 Howell’s St., 948 - - 117 _ a Fcilder, - 2 D. and R., 40 - - - 175 if Findon, - 0 C. and P., 132 - - 103 ft Fitzgerald, - - Car. and Kir., 301 - - 142 tt Fletcher, - - R. and R., 60 - - 173 ft Flint, - - - 3 Cox., C.C., 00 - - - 133 it Flower, - 7 D.P.C., 005 - - 103 if Forbes, - - . 10 Cox., C.C., 302 * - 15 if 2 Dow. P.C., 440 - - 09 . if Forester, - 10 Cox., C.C., 308 - - 150 it Foster, - 3 C. and K., 201 - - 157 - tt Forsyth, - R. and R., 274 - - - 85 tt Fowler, - - 4 B. and Aid., 273 - - 174 tt Frances, - 4 Cox., C.C., 57 - -121;129 - tt Francis, - 2 Stra., 1015 - 164, 1655 166 it Frcaklcy, - G Cox., 75 - - - 18Z XX TABLE OF CASES. PAGE E. v. Frost, - . 9 C. and P., 129 - - . 28 9f „ „ 159 . . 103 99 * . Dears, C.C., 474 - - • 77 ,, Fuller, - 1 B. and P., 181 - . 72 it Fuller, - - 1 B. and F., 180 - - - 80 » - 7 C. and P., 270 - - 41., 52 it Furnival, . E. and E., 445 - - . 73 tt Furzey, - 9 C. and P., 431 • - 33

li Gadbury, - 8 C. and P., 070 - - - 101

a Galloway - 2 Moo., C.C., 234 . - 04 tt Garbett, • 1 Den., C.C., 230 - 155, 102 tt Gardner, • 1 C. & K., 028 ; 7 C. & P.,,077 102 tt Garner, - . 1 Den., C.C., 329 - - 180 it Garsidc, - 2 Ad. and El., 272 - - 115 a Gascoigne, - 7 C. and P., 772 - - - 140 tt Gay, - 7 C. and P., 230 • - 153 tt Geacb, - . 9 C. and P. 499 - 134, 135, 130 tt Geary, - 2 Salk., 030 - - - 107 tt Gibson, - . 8 East, 107 - - . 109 tt Giddins, • C. end M., 034 • . 72 Gilchrist, - 2 Leach, 000 - - - 73 a Gilbam, - . 1 Esp., 285 - - - 104 }• Gill and another 2 B. and Aid., 204 • . GC1, 70 tt j j a . 1 Chit., 098 - . . 72 a Georgeth, - 4 F. and F., 540 . • 128 tt Glcmm, - . 3 B. and Aid., 373 - - 110 ti Goddard, - 2 Ld.Eaym., 922; 3 Salk.,!171, S.C. 71 113 a Goldshede, • 1 C. and IL, 057 - - - 148 a Goode, • 7 Ad., and El., 530 . . 99, 123 a Gough, - • 2 M. and R., 71 - . - 04 it a ■ 2 Doug., 797 - - 175 it Gould, - • 3 Bums, J., 30 ed., 98 • . 139 a Gray, - 7 C. and P., 174 - 05 a a m • L. and C., 305 - - • 85 it Grcenslade, - 11 Cox., C.C., 412 - 88 a Grindley, . Worcester, Sum. Ass., 1819, M.S. 8 a Groombridgc, 7 C. and P., 582 - 6 a Grubbin, . 1 Lew., C.C., 314 - • 91 it Guthridge, - 9 C. and P., 228 • 52 tt Hadficld, . Collison on Lunacy, 480 - - 121 a IlaH, - - 1 S.E., 322: Com. Dig., Plea c., 28 70 a a • 1 T.E., 320 - - - 81 . 2 W. Black, 110 - 49

a Halloway, - 1 C. and P., 128 - - 83 Hamilton; . 7 C. and P., 448 . 102 it Handing, - Vie. Law Times, 10 * - 147 a Hamworth, . 2 Stra., 900 n. 1 - 71 a Hann, - 3 Burr., 1780 - • - 109

a Hardy - - 24 St. T., 418 - 150 it Hargreaves, - 2 F. and F., 790 - - -. 188 a Harris, - - 4 Cox., C.C., 147 - 147

3? Ilartall, - 7 C. and P., 475 - - . 05 J J Hartcl, - - 7 C. and P., 773 - 145

It Haslam, - 1 Jurist, N.S., 1139, Q.B. - 103 TABLE OF CASES.

PAGE E. v. Hassctt, 8 Cox., C.C., Oil - - 20,118 Haswell, . E. and E., 458 • . 122 Hayes, - - 2 M. and Eob., 155 • - 103 » • - „ „ 150 - - 62 Hayes, - 2 Stra., 814 . . 105, 100 Haydon, - 4 Co., 41 a. - » » 70 Hayward, - 0 C. and P., 157 • • - 150 Hazel, - . 1 Leacli, 382 - • - 105 Ilazcll, - 8 Cox., C.C., 413 • - 44 jj - - 2 Cox., C.C., 220 . . 159 Headley, - 1 Cox., 42 - . - 28 „ , Lord - E. and E., 112 • * 131 Heatli and another, - 8 Cox., C.C., 237 - - 97 Hempstead, - E. and E., 314 • . 02 Hendy, * 4 Cox., C.C., 243 - . 39 Hensey, - 1 Burr., 013 ... 97 Hetherington, 3 Jur., 520, Q.E. - • 175 Hey, - . 1 Den., C.C., 002 - - 181 Heywood, - L. & C.,457; 33L.J., M.C., 133; 03, 04 Hewson, • 2 Lewin, C.C., 277 - - 91 Hicks, - 2 M. and Eob., 302 • • 70 Higgins, 2 East, 19, 20 - • 72 Hilton, - Bell, C.C., 20 • - 101, 181 Hind, - . 1 Bell’s, C.C., 253 - - 149 Hilditek, - 5 C. and P., 299 - . . 103 Hinlcy, - . 2 M. and Rob., 524 • • 03 Hodges, - 8 C. and P., 195 - - . 123 Hodgson, . 3 C. and P., 422 - - 102 Hogg, - 2 M. and Eob., 380 - - 70 Holembury, - 4 B. and C., 329 • • 175 Holland, - 0 T.R., 021 - - • 73 . 08 99 * 0 T.E., Oil, 023 - - 99 m „ 007 - - - 73 Hollingbnry, - 4 B. & C., 329 ; 0 D. & E., 345 169,177 Holman, - L. and C., 177 - - - 04 jj • . 3 Jur., (N.S.) 722 - - 159 Holmes, - 2 F. and F., 789 - . - 103 Holroyd, . 2 M. and Eob., 339 • - 80 Holt, - 2 Leach, 593 • - - 09 jj - . 5T.K., 445 - - - 170 Horne, - Cowp., 082, 3 • * - 08 How, - . 2Str., 099 - - - 09 Howatk, - 1 M., C.C., 207 - • 17, 20 Howarth, . 3 Stark, 20 - • - 09, 74 Greenw. Coll. Statutes, 137 • 154 Howell, - 1 C. & K., 089; 1 Den., C.C., 1 151 Hucks, - 1 Stark, 523 - - * 149,152 Huggins, - 2 Ld. Eaym, 1585 • - 100 G2 Hughes, - Bell, C.C., 212 - * 4 Cox., C.C., 415 - * 103 . 1 C. and 3L, 235 - - 131 Hunt, _ 2 Cox., C.C., 239 . - . 153 4 „ „ 149 - * 147 . 1 Moo., C.C., 93 - - . 20 Hunter, - 3 C. and P., 591 - - 143 XXII TABLE OF CASES. PAGE R. v. Hunter, . - 2 Leach 204 - - - 81

a Hutchinson, - - 2 B. and C., 008 n. - - 149

it J ackson, - - 7 C. and P., 773 - - . 146

a James, - - 1 C. and P., 322 - - 39

it a . - 5 B. and Aid., 894 - . 184

a Jane, . - 1 Vent., 69 • - - 139

a J arvis, - • - 1 East, 043 - - . 81 a Jeffs, - 2 Burr., 984; Post, 24 * 139

a J enkins, - - 11 Cox., C.C., 250 - - 150

a Inhabitants of Bourbon, 5 M. and Sel., 392 - - 175

a a of Oxford, - 13 East, 410 - - - 173

a a of Pcntridge, June 20,1841 - - - 103 a John, - - - 1 East, P.C., 357 - - 145, 153 - a Johnson, - 2 E. &E.,013: 20 L.J.,M.O., 133 174 it it ■ - - 3 M. and S., 539 - - 03 a a . - 1 Stra., G44 - - - 90 a Johnston, . - 15 Irish, C.L.E., CO -- 148 a J oliffe, A - 4 T.R., 285 - - - 142,143 a Jones, - - 2 B. and Ad., Gil - - 69 a a . - 2 Camp, 131,2 - - 03, 05 a it - - 4 C. and P., 217 - - 85 a a ' - - 0 C. and P., 343 - - 28 a it “ . - 7 C. and P., 239 - - - 40 a it - - 1 Douglass, 300 - - 82 it a - - 8 East, 34, 35, 37 -- 143 it tt - - „ 31,37 - - 144 it tt - - 1 Leach, 102 * 7, 97, 98 a J ordan, . - 9 C. and P., 118 - - 0, 103 a Juker, - - 8T.R., 536 - - - 79 a Justices of Leicestershire, 1M. and Sel., 442 - - 173 a Keena, - - - Law Rep., 1 C.C.R., 113 - 84 Iveite, - - 1 Ld. Raym, 142 - - 105 a Kellet, - - - Vic. Law Times, 5 - - 106 it Kenrick, - - 12 L.J., N.S.M.C., 135 - - 03 tt tt ~ - - 5 Q.B, 49 - - - 70 it Kerr, - - 8 C. and P., 170 - - - 148 it Key, - - - Temp, and Mew, 023 - 101 tt King, - 2 Cliitty Rep., 217 - - 00 it it 7 Q,B., 782 - * * 1G7 it Kingston, - - 8 East., 41 - - - 03 a „ - - „ 40 - - - C2 „ a * - - „ 52, 53 - - - 73 „ Kinloch, - - Fost., 10 - - - 97, 115 a „ - - - „ 31 - - - - 139 it Kinlock, - - 1 Wils., 157 - - - 97 tt Kinnear, - - 2 B. and Aid., 402 - - 156 tt Kinnersley, - - 1 Stra., 193 - - - 02 tt Kinsey, - - - 7 C. and P., 447 - • - - 28 it Knight, - - 1 Salk, 375 - - - 71 it Kort Kirrup, - - Sup. Ct. Pt. Phillip, 1845 - 189 it Lacy, - - 3 Cox, 517 - - - 88 it Lamb, - - - 2 Leach, 582 - - - 140 tt Lang, - - Cro. Eliz., 490 - - 69 it Lang, The Rev. Jno. D., Sup. Ct., Mclbne. - - 90 it Langbridge, - - 1 Den., C.C., 448 - - 53 TABLE OF CASES. xxni PAGE Langford, - - 1 Car. and Mar., G02 - - 33 Langliurst, - - 10 Cos, C.C., 353 - - 143 Langley, - - 4 Cox, C.C., 157 - - - 51 Larkins, - - - Dear.,C.C., 3G5; 23L.J.,M.C., 125 178 Law, - - - 2 M. and Bobb, 297 - - 81 Lawlcy, - - - 2 Stra., 904 - - - 70,8G Lawrence, - . - 4 F. and F., 901 - - - 142 Layer, - - - 0 St. Trials, 230 - - 90 Layton - - 4 Cox, C.C., 149 - - - 120 Lea - - - 2 Moo., C.C., 9 - - 113,173 Leafo, - - Andr., 22G * - - 110 Lease, - - - Andr., 226 - - - 08 Leigh, - - 4 F. and F., 915 - - - 121 Levett, - - - Cro. Car., 538, - * 10 Levinger, - - 0 W. W. and A.B., 11 - - 22 Levy, - - - 2 Stark, C.N.P., 458 - 60 Little, - - B. and B., 430 - . - 123 Lloyd, - - - 4 C. and P., 233 * - 140 Lopez, - - D. and B., C.C., 525 - - 10 Long, - - - 5 Co., 121 b. - - 69, 70, 74 >* * “ - „ 122 b. - - - 09 Loose, - - - Bell, C.C., 259 * - 77 Lord Byron - - 19 St. Tri., 1177 - - - 70 Lord Cochrane, - 3 M. and Sel., 10 N. - 175 Lord Ferrers, - 19 Howell’s St. Tri., 948 - 117 Lord Mayor of London 5 Q.B., 555 - - - 43 a 4 L.B.Q.B., 371 - - 180 Lovett, - - 0 C. and P., 4G2 •• - 90 Macarthy, - - 1 Car. and Mar., G25 - - 142 Mackay, - - 11 Cox, C.C., 148 - * 150 Macklin, - - 5 Cox, C.C., 210 - - - 185 Malings, - - 8 C. and P., 242 - 101, 102 Mann, - - 4 M. and Sel., 337 - - 174 Manning, - - 1 Den., C.C„ 4G7 - 127, 128 Mansell, - - 1 Dears, and B., 375 - 135 Mansfield, - - 1 Car. and Mar., 140 - - 84 Manzano, - - 2 F. and F., 04 - - 101 Marquis of Downshire, 4 A. and E., G98 - - - 103 Marsden, - - M. and Bob., 439 * - 102 „ -- Moo. and M., 439 - 90, 102 Marshall, - - 1 Moo., C.C., 158 - - 70 Martin - - - 8 Ad. and Ell., 481 - - G9 i9 - - 2 Cox., C.C., 50 - - 159 - 9 C. and P., 215 * - - 78 - 1 Den., C.C., 398, 332 - 180 j* " " - tt tt 3; 18 L.J., M.C., 137 178 Mason, - 1 East., 180 - - - 78 n - - - 2 T.It., 581 - - 09, 74 \9 - - 2 T.R., 58G - - - G8 Matters, - - 1 B. and Aid., 302 - - 81 Mawbey, - - G T.R., G25 - - - 173, 174 . _ - G T. R., G27 - - - 175 „ . . - 0 T.R., G28 - - - 72, 173 Mansell, - - 1 Dear and B., 375 - - 135 XXIV TABLE OF CASES. PAGE It. v. Mayor of Oxford, 3 Nov. and M., 2 - - 174

it McCullcy, - 2 Moo., C.C., 31 - - - 80

ft McGuincss, - 5 Cox., C.C., 511 • - 52 - ft McIntyre, - 2 Cox., C.C., 379 - - 162

it McLeod, • - 2 East. 202 - - - 90

tt McNaughton, - 10 Clk. and T., 200 - - 118 ft it “ „ „ ; 1 C. and K, ISO n. 118, 121

11 Mead, - - 2 B. and C., 005 - - 149

a Meadows, - 2 Jur., (N.S.) 718 - - 159 Meakin, - • 7 C. and P., 207 - - - 8

a Meaney, « L. and C., 213; 32 L.J. M.C!., 24 106

a Mellor, - - 1 Dear and B. C.C., 408 - 133 a am * Dears and B., 375 - • 135 a it * ~ D.&B..4G8; 27 L.J. M.C., 121 178,180 a Megson, - 9 C. and P., 418 - - 151

a Metcalf, - M.S. - - - - 157

a Micliael, • 2 Leach’s C.C., 4, ed. 938; R. & R., 29, S.C. - - - 72

a ?»* * 2 Leach, 941 - - - 72 a Mildrane, • Leach, 412 - - - 104

11 Milton, - 3 C. and P., 31 - - 29

it Minton, - 1 McNally, cv. 386 - - 151 j« Mitchell, - 3 Cox., C.C., 1 - • 87 o _ . - »» ft> • ■ tt tt +* 143 „ „ 93 - - 106

tf Mohhs, - • 2 Fos. and Fin., 18 - - 142

it Montague, - 4 B. and C., 598 - - 103

it Mooney, - 9 Cox., C.C., 411 - - 44

tt Morgan, - 1 Bulstr., 187 - - - 165 » a " 1 Loach, 54 - - . 103 a ■ 0 Cox., 110 - • - 146 Morphew, - 2 M. and Sel., 602 - - 143 Morris, - 9 C. and Pt., 319 - - 85 >> Morris, Harriet, C. Crl. Ct., 10 Dec., 1800 - 20 Mosly, - Moo. C.C.R., 97 - - 151, 152 Murphy, - 8 C. and P., 270 • - - 66 „ Myers, - 1 T. II., 205 - - - 13 Neale, - - 9 C. and P., 431 - - - 33 5> Newham, - Ld. Raym, 502 - - 75 Newton, * 1 F. and F., 041 - - 53, 149 M 13 Q.B., 710 - - - 139 9> Norris, - - 1 Rob. Rep., 297 - - - 115 Norton, - R. and R., C.C., 510 - • 75 8 C. and I’., 190 - - - 69 5 J Nibbs, - 1 Moo. C.C., 25 -- 84 Nicholas, - 2 C. and K., 240 - - 141

9) O’Brien, - Clonmcll, Spl. Com., 1819 - 129 O’Coighly and others, 4 Chitty, Bla. Com., 354 a. - 134

» Odgers, - - 2 M. and Rob.. 479 - - 109 - J? O’ilonnell, - 7 C. and P„ 138 - - 26, 28 99 O’Farrell, - 2 Wy. and Webb, 117 - 90 OfFord, - . 5 C. and P., 1G8 - - 117

9> Oliver, - - B. C.C., 287 - - - 168 99 Oldnoll -• - 2Dy., 155 a. - - - 79 TABLE CT CASKS. XXV I’aci: v. Orrcll, - - - 7 C. and P., 775 - - - 145 Osborn, - - 7 C. and P., 700 - - Ill Osmcr, - - - 5 East, 301 - - - OS ,, „ ; and - 71 Owen, - - - 1 C. and P., 2:1(1 - - - 6 ,, . . 9 U. and P., 238 - - 41,151 - - - 9 C- and P. 83 - - 113, 151 Overton, - - 1 Car. and 51.. 055 - - 74. Oxford, - - - 9 C. and P., 525 - - 117, 118 Palmer, - - 0 C. and P., 052 - - 143 ' r> ~ - - 5 Elliot P., 1021 - - 88 Parish, - - 7 C. and P., 782 - - Ill Parker, - - - Colli son on Lunacy, 477 -- 121 Parkin, - - 1 Moo. C.C., 15 - - 100 Parkins, - - 1 C. & P., 518; Py.A M., 106 - 1GO Parkinson, - - 2 Den. C.C„ 459 - - 175 Parr, - - - 2 E. and E., 801, and Note b. - 157 Parry, - - 7 C. and P., 830 -- 133, 135 Patent Eureka Coy., - L. T. Q.B., 405 - - - 59 Patrick, - - 5 blast, P.C., 1059 - - 77 Patterson and others, - 4 WAV. and a.B., 43 - 53, 59 Paul, - - 0 C. and P., 323 - - 187 j, - - - ., 321 - - - 11 Peace, - - 3 E. and Aid., 579 -- 76 Pearce, - - - 7 Cox.. 200 - - - 186 >> " ■ 9 C. and P., 007 - - 123 ,, - - - P. and P., 174 - - - 81 Peel, - - 2 E. and E., 21 - - 151 Pemberton, - - 2 Purr. 1030; lBla. Xcp.,23 0 s.c. 2 Leach, 580 - - - 72 Perkins, - - 2 Den., C.C., 459 - - 181 Perkins, - - 2 Moo., C.C., 135 - 152, 151 Pcrrott, - - - 2 M. and Sel., 3sr> - - 08 ,, - - - „ „ 381 - - 70 Petcherini, * - 7 Cox., 79 - - - 88 Peters, - • 1 Purr., 5G8 - - - 171 Pethybridge, - - 0 Wy. W. and a. P., 06 - 90 Phillips, - - 1 Stra., 201 - - - 78 ,, - - - „ 921 - - - 110 Phillips, - - 2 Stra., 921 - * 09, 110 Phillips, - - 3 Purr., 1501 - - 89 „ - - - 8 C. and P., 736 - - - 6 „ - - 11 Cox., C.C., 112 - - 140 - - - 0 East, 472 - - - 86 Philpotts, - - 1 C. and X., 112 - - 110 Pike, - - - 3 C. and P., 598 - - - 151 Pikcsley, - - 9 C. and P., 121 - - 150 Pinnoy, - - - 3 P. and Ad., 917 - - 33 Pitts, - - 8 C. and P., 771 -- 70 Plummer, - - 1 C. and X., 000 - - 150 Xeb, Ill - - - 105 Plymouth, - - 4 Purr., 2089 - - . . 89 Porter, - - 9 C. and P., 77s - - 32 Powell, - - - 2 P. and Aid., 75 - - 172 Price and others, - 0 Cox., 117 - - - 28 xxvi TABLE OF CASES.

R. y. Price, - G East., 328 - - - 173 „ Priest, - 2 Cox., C.C., 378 - - 20 „ Pritchard, 7 C. and P., 303 - - 98, 99 „ Probcrt, - Dears, C.C., 32 - - 102, 103 „ Prynn, - 5 Mod., 459 - - - 89 „ Pickering, - 1 Moo., C.C., 242 - - 83 ,, Pulham, 9 C. and P., 281 - - C2, G5 ,, Purchase, - C. and M., G17 - - 71, 108 ,, RadclifFe, 1 Bla. Rep., 3 - - -96 „ Radlcv, - 1 D., C.C., 540 - - 84 „ Read, - 7 C. and P., 508 - - - 40

>5 ?J “ 1 Lev. 9 - - ■ 175 „ Reaney, D. and B., 151; 7 Cox., 209 - 151 ,, Reason, - 1 Stra., 499 ; G St. Tr., 502 - 153 „ Reardon, 25 L.J., M.C., 171 - • 02 ,, Rees, - 7 C. and P., 508 - - 40 ,, Rcyncll, 6 East, 315 ; 2 Smith, 407 - 174 „ Richards, - 1 Cox., C.C., 62 - - 158, 159 7 D. and R., 6G5 - 70, 74 Richmond, 1 Car. and K., 240 - - 109 Rider, - 8 C. and P., 539 - - - 102 Rjgg. 4 E. and E., 1085 - - 44 Rix, - 14 L.T. Q.B., 379 - - 103 Robinson, 1 Holt., 595 - - - 70 23 L.J. Q.B., 286 - - 49 2 Moo., 321 - - - 81 „ Robson, - 4 F. and F., 3G0 - - 157 ,, Roche, - 1 Leach, 160 - - - 113 ,, Rodgers and others, 2 Burr., 1809 - - - 96 ,, Rooney and others, ■ 7C. and P.,515 - - 28 ,, Rowlands, - 2 Dens. C.C., 364 - - 106

)5 " „ „ 372, noted - 175 ?> >> ~ „ „ 386;6TermRep.027 175 ,, Rowed, - 3 Q.B., 180 - - - 70 ,, Royce, - - 4 Burr., 2073; 1 Chit. Crim.L. 643 164 ,, Rnshworth, - R. and R., 317; 1 Stark, 390, s.c. 86 „ Russell, - - 3 El. & Bl., 942 ; 18 Jur., 1022; 23 L.J. M.C., 173 - - 174 Ryan, - 2 Moo. C.C., 15 - - 80 Rycroft, - 6 Cox., C.C., 76 - - - 102 Rylands, - 11 Cox., 101 - - - 168 Ryland, - - 37 L.J. M.C., 10, L.R., 1 C.C., 99 178 Sadi and another, 1 Leach, 4G8 - - - 84 Sandys, - 2 Moo., C.C., 229; C. & M., 345 154 Sansome, - 1 Den., C.C., 545; 4 Cox., 203 - 147 Sargent, - 5 Cox., 499 - - - 186 Sattler, - D. and B., C.C., 525 - - 10 Saunders, - 2 Burr., 984 - - - 65 Saunders, - 2 Cox., C.C., 249 - - 49 Sawdon, - 2 Lewin, 117 - - - 134 Savage, - 1 C. and R., 75 - - - 142 Scaife, - 1 M. and Rob., 551 - - 149 Scaife and another, 9 Dow., P.C., 553 - - 48 Scalbcrt, - 2 Leach, 620 - - 139 Schleter, - 10 Cox., 409 - - - 110 TABLE OF CASES. xxvii PACK v. Scott, - - _ 1 Dears and B., C.C., 17 - 118 . 1 Leach, 101 - - - 112 Scarle, - - - 1 M. and Bob., 75 - - 122 Sell, - . 9 C. and P., 31(5 - - - 111 Sellers, - - - Carr. Supp., 200 - - 152 Sermon, - - 1 Burr., 510, 513 - - 110 Sharpe, - - - 1 Dear, and Bell, 100 - 45 Sliaw, - - 0 Dow. and Byl., 151 - - 51 Shcheair - - 1 Burr., ‘100 - - - 50 Sheen, - - 2 C. andP., 031 - - 108, 112 - ,, 035 - - 112 Shepherd, - - Law. Bcp., 1 C.C. B, 118; 37 L. J. M.C., 15 - - 81 Sheppard, - - 1 Leach, 101 - - - 135 ,, - - „ 119 - - 129, 130 Shcrlcy, - - 2 Dyer, lll,b 115 a - - 128 Sherlock, - - L.B, C.C. B., 20 - - 19 Shields, - 28 St. Tri., 411 - - 139 Shott, - - - 3 C. and K., 200 - - 07 Shuttleworth, - Temp, and Mew., 020 - - 101 Sibcril, - - 1 Ken. Bep., 350 - - 143 Simons, - - 6 C. and P., 510 - - 52 Simpson, - - 1 Lew., 78 - - - 151 Slogget, - - Dears, C.C., 07)0 - - - 118 Smith, - - - 2 B. and P., 127 - - 72 - - 1 Cox., C.C., 200 - - 0 yy “ " - 2 C. and P., 207 - - 52 yy ~ - 3 C. and P., ,112 - - 04 yy " * - 10 Cox., C.C., 82 - - 152 - 1 D. and B., C.C., 553 - - 9

yy ~ " - 1 Den., C.C., 512 - - 180 M -- 1 Lew., 81 - - - 151

yy ~ " - L. and C., 007 ' - - 151 n - - 1 M. C.C., 402 - - - 75 yy “ - - It. and K., 339 - - 39 Smith and others, - 1 Esp., Ill -- - 103 Souter, - - - 2 Stark, N.P.C., 425 - - 110 »> " - „ „ 423 - ^ 139 Southc}r, - - 4 F. and F., 804 - - 121 Spicer, - - . 1 Den., C.C., 82 - - - 80 Spigurnal, - - 1 Hale, 20 - - - 0 Spilsbury, - - 7 C. and P., 187 - - 151, 152 Sprn gg, - - - 2 Burr. It., 930, 931 - 91, 175, 170 Stailbrd, Lord, - 1 lhiym., 408 - - - 90 Stapylton, - - 8 Cox., C.C., 09 - - 103 Staunton, - - 7 C. and P., 431 - - - 1*5 Steel, - - - 1 Leach, 151-2 ; Moor.,, 4 pi., 12 98 Sterne, - - 1 Leach, 474 - - 70 Stevens, - - 5 B. and C., 210, S.C., nom., 70, 74 „ and anor., - 5 Fast, ltepts., 251-5 - - 70 Stevenson, - - 2 Lead), 510 - 139, 113, 157 St. George, - - 9 C. and 1\, 4*5 - - 90 Stiginani, - - 10 Cox., 552 - - - ' 88 Stimpson, - - 2 C. and P., 115 - - 103 Stokes, - - 0 C. and P., 151 - - - 139 XXVlll TABLE OF CASES. TAGE P. v. Slakes - 17 Jurist, 102 - - 20 - 1 Neville & Man., Mag. Cases 200 01 Stone, - C T.P., 000 - - 100, ISO Streek, - 2C. and P., 413 - 130,143,107 - „ 410 - - - 103 Stripp, - 2 Jur. N.S., 402 ; 27 L.J., 128 ; Dears, C.C., 0 18 - - 147 Stroud, - - 2 M< C.C., 270 - - 75 StuLbs, - - - It) Jur., 1110 - - - 178 Sudbury, - - 12 Mod., 202 ; 2 Salk., 003 ; 13 East., 112; 1 Ld. Paym., 484, S.C. 02 Sutton, - - - 3 A. and E., 007 - - 4 Sutton, - - 0 Ik and Ad., 02 - - - 174 . . - 8 D. & C., 417, S.C. nom. 131, 134, 130 Suii, - - - 1 Leach, 100 to 100 - - 75 Swundsen, - - 14 St. Tri., 000 - - 128 Synie, - - 2 YVv. W. and MB. 107 - - 00 Taylor, - - 3 13. and C., 002 - - 100 „ „ 0D. & P.,42 2 - 113 t> • _ . „ 04 - - 114 3 Cox., C.C., 84 - - - 102 . ■ • 8 C. and P., 733 - - 40 99 - - 1 F. and F., 030 - - - 102 99 " * “ 2 W. and W., 103 - - 44 >, - - 105 Teak - - - 11 East, 207 - * - - 175 Tiinpest, - - 1 F. and F., 381 - - - 107 ,, - - , . „ 035 - - 102 Templeman, - 1 Salk., 50, 00 - - - 177 The City of London, - 1 E.P. and E., 500 - - 180 Thomas, - - 7 C. and P.. 817 - - - 8 ” ' - - 1 Cox., C.C., 02 ; 3 Puss on crimes, 4tli ed., 201 - 101 ,, . . L. and C., 313 - - . 180 Thompson, - - Hone, 4 VC. W. ami MB., 23- 09 • » • • 10 Q.P., 832 - - - 104 Thomson, - - 2 Leach, 010 - - - 81 Thornton, - - 1 Moo., C.C., 27 - - . 148 Tinckler, - - 1 East, P.C., 301, 30G - 103 Town ley, - - 3 E. and E., 830 - - . 121 Tra fibril, - - 1 P. and Ad., 874 - - 01 Trebelceck, - - P.andP, ICO; 27 L.J. M.C., 103 178 Trehcarne, - - 1 Moo., C.C., 208 - - 70 Trueman, - - 8 C. and P„ 727 - - _ 05 Trvddyn, - - 1 Bail, C.C., 10 - - 109 Tulby, - - 0 C. and P., 030 - - . 147 Tucker, - - - 4 Purr., 2010 - - - 110 Turner, - - 1 Moo., C.C., 239 - . 80 ,, - - - 1 Sid., 171 - - - 02 „ - - 1 Stra., 130, 140 - - . 72 Tyler, - - - 8 C. and P., 010 - - 8 Van Butehcll, - , 3 C. and P., 020 - - 101, 102 Vnndercomb, - - 2 Lcacli, 712 - - - 112 Vaux, - - 4 Co., 40 a. - - 113 * - - 4 Co., 30 b. - - - 177 TABLE OF CASES. xxix

PAGE 11. x. Vincent, - - 9 C. and P., 91 - - - SS „ Virrier, - - - 12 Ad. and Ell., 317 - - 107 ,, Vodden, - - Dears. C.C., 229 - - - 190 „ Wade, - - - 1 Moo., C.C., 80 - - 110, 142 ,, AVaddington. - 1 Hast, 110 - - - 170 „ „ ' - - 1 East, 159 --- 1?0 ,, Wait, - - 11 Price, 518 ... 182 ,, Waite, - - - 1 Loach, 43 - - - 90 „ Walcofc, - - 4 Mod., 395; 2 Salk,, 032, S.C. - 173 „ Waldborougli, - - 1 Hale, 20 - - * 5 ,, "Walker, - - 3 Camp., 204 - - - 70 „ „ - - - 0 C. and P., 101 - - 148 „ „ - - 4 Co., 41 a. - - 09, 71 „ „ - - - 5 Cox., C.C., 500 - - 51 „ „ - - 23 L.J. M.C., 123 - - 15 „ „ - - - Q.B., 1788 - - - 104 ,, ,, - - 2 Moo. and Hob., 440 - 108, 112 „ Walking, - - 8 C. and P., 243 - - 101 „ "Wandsworth, - 1 13. & Aid., 03 ; 2 Chitt. Hep. 282 175 „ "Ward, - - 2 F. and F., 19 - - 87 ,, Wardle, - - 1 C. and Mar., 047 - - 157 ,, Warshancr, - - 1 Moo., C.C., 400 - - 81 ,, Wartnaby, - - 2 A. and E., 435 - . - 00 „ Waters, - - 1 Den., C.C., 350 - - 7G, 78 „ „ - - 7 C. A P.,250; 1 Moo., C.C.,157 75 „ Watkins, - - 4 C. and P., 518 - - 145 ,, AY ebb, - - 4 C. and P., 504 - - - 147 „ „ - - - 11 Cox, 133 - - - 152 „ „ - - 1 Den., C.C.,310; 18L.J.M.C., 39 178 „ Wegener, - - 2 Stark, N.P.C., 215 - - - 73 „ AVelbourn, - - 1 E.P.C., 357 - - - 152 „ „ - - „ 358 - - - 150 „ AVclsh, - - Arch., C.P., 10 ed. 127 - - 112 „ AVenborn, - - 0 Jur., 207 - - - 157 „ AVestbeer, - - 2 Stra., 1133 - - - 100 „ AYestby, - - 10 East, 85 - - - 115 „ Weston, - - 1 Stra., 023 - - - 110 „ AVlialley, - • 2C.&K, 370 ; 2 Cox., C.C., 231 * 137 „ Whcater, - - 2 Moo., C.C., 45 - - - 148 „ Wheatley, - - 2 Burr., 1127 - - 70 „ AVliccler, - - 7 C. and P., 170 - - - 05 ,, - - Central Criml. Ct., May 12th ’05 100 ,, Wheeling, - - Hole, 1 Leach, 311 - - 14(5 ,, Whelan, - - Sup. Ct., Victoria - - 12, 179 „ AVhite, - - 3 Camp., 98 - - - 100 „ AVhite, - - - 2 Cox., C.C., 192 - - 103 » » - - 1 Loach, C.C., 482, N. (a) - 142 „ AVhitohouse, - - Dears, C.C., 1 - - 174, 175 ,, AVhitcman, - - Dears, C.C., 353 - - - 85 „ WJiittakcr, - - 2 F. and F., 1 - - 92 „ AY] lit worth, - - IF. ar.d F., 3S2 - - - 151 „ AViggins, - - 10 Cox., 5ti2 - - 88 ,, YA iHI, - - 1 AToo., C.C., 452 - - 5 „ AVilkes, - - - 4 Burr., 2527 - - - 89 - „ - - „ 2539 - - - 170 XXX TABLE OF CASES. PAUL, E. v. Williams, - - 1 Cox., C.C., 303 - . 101 7 C. and P., 298 - - - 75 99 ** 1 Moo., C.C., 110 - - 83 99 99 “ 1 Leach, 580 - - - 170 ]] Willis, - - - 1 Den., C.C., 80 - - 70 ,, Wilshaw, - - 1 0. and M., 145 - - - 150 „ Withipole, - ■ Cro. Car., 147 - - 97 ,, Woodcock, - - 1 Leach, 502 - - - 150 „ Wood fall, - - 5 Burr., 2001 - - - 105, 100 ,, Woodhead, - - 2 C. and Eh, 520 - - - 88 „ Wright, - ■ 1 Vent., 170 - - - 70 It. and R., 45 G - - - 122 „ Wyatt, - - - 2 Ld. Raym., 1190 - - 71 R. and R., 280 - - - 178 „ Wymcr, - - 4 C. and P., 391 - - 77 „ Ycadon, - - 9 Cox., C.C., 93 - - - 100 10 Cox., C.C., - - 108 L. and C., 31 - - - 180 ” ’’ . - L.&C., 81; 31 L.J.M.C., 70 Cromp. 114; 2 St. Tri., 00 - - 100 ,, Yorkc, - - Fost., 70 - - - 5 ,, Young, - - Peake’s add. Cas., 228 - - 05 SJ „ " - - 3 T.R., 98, - - - 01 „ ,, - - - „ 105 - - - 03 Ryahs y. It. - - 11 Q.B., 781, 795 - - 173 Scattergood y. Sylvester, - 15 Q.B., 500 - - - 180 Scott v. Soans, - - 3 East, 111 - - - 75 Shaw y. Cliairitre, - - 3 C. and Eh, 21 - - - 17 Smith y. Brampton, - 2 Salk, Oil - - - 175 Smith y. Shirley, - - 5 C.B., 142 - - - 25 Spiers y. Parker, - - 1 T.R., 141 - - - 81 Steel y. Smith, - - 1 B. and Aid., 94 - - 81 Stoneham v. Ddlliot, - - 0 T.R., 315 - - - 24 Sutton y. Johnstone, - 1 T.R., 514, 535 - - - 90 Sutton y. Bishop, - - 4 Burr., 2287 - - - 17G Timothy v. Simpson, - 1 C.M. and R., 757 - - 17 Tubervil v. Stamp, - - 2 Salk., 047 - - - 175 Yandcrplunkcn y. Griffith, Cro. Eliz., 330 ; 2 Hawk, c. , 25, S., 101 - - - 79 Vangangell v. Browning - 1 Eeb., 517 - - - 128 Walker v. Brogdcn, - - 17 C.B., 571 - - . 59 Webster y. Watts, - 11 Q.B., 311 - - - 17 "Wheeler y. Whiting, - 9 C. and P., 2G2 - . 17 White y. Edmunds, - Peake, 89 - - - 15 Wihlenv. Holmes, - - 0 Mood., H5, HO - . 75 Williamson v. Allison, - 2 East, 452 - - . 80 Williams y. Glenistcr, - 2 B. and C., 039 - - 15 Williams v. Crosswell, - 2 C. and Eh, 422 - - - 25 Winsor v. B. - - 1 Law Rep., Q.B. 308, 317 - 138 „ „ 289, 390 Ex. C., 139 ,, ,, - „ „ 317, 322 - 101 ,, ,, - - „ „ 395 - - 111 ., - - 35L.J.M.C., 101; (Exeli. Cli.) 138, 1 11 ,, ,, - - „ „ 121 - 139,101 Wooding v. Oxley, - 9 C. and P., 1 -- 17 TABLE OF CASES. XXXI

PAf! H Wright y. Court, - - 4 B. and C., 590 - - - 25 Wright v. Wilcox, - 9 C. and B., 050 ' - - 163 Young y. It. - - - 3 T.K., 103—4 - - - 61 J J J5 " - „ 100 - - - 02 - „ 103-0 - - - 63 «< ,, - - „ 9S - - - 63 >» >> “ ‘ - „ 105 - - - 65 TABLE OF TEXT BOOKS.

Archbold’s Cr. PL, lGtli ed., 50 74 „ „ 57, 58 - - 81 „ 58 82 „ „ 08 - 01 „ „ 0-1 08 „ „ 11H - Ill „ „ 101 115 „ » 101 - 97 Cr. Aff. Practice 02 100 Paeon’s ALr. Idiots, (A) - - 7 Indictment, G 1 80 Infant (H) - - 4 Juries - 120 „ (E 2) - 184 ,, (E 5) 134 „ (E 8) - 128 „ (E 12) 136 , L 8 - 17 Trial, II 142, 144 ,, Verdict (P) - - 103 Panics* Notes, 487 - 144 „ 448 - - 144 0 Pla. Comm., 887 - 174 1 „ „ 20 - - 4 4 „ „ 20 - 5 4 „ „ 24 - * 100 4 „ „ 207 - 50 4 „ „ 808 - - 80 4 „ ., 380 - 113 4 „ „ 052 - - 127 4 „ „ 858 - 102 4 „ „ 800 - - 138 4 „ „ 001 - 104 Pritton, C 5, 14 - - 90 Pro. Abr. Idiot, 1 - 7 1 Purns, J., Pail, 820 - - 40 1 Chit., Crim. L., 00 49 171, 220 - 69 212, 213 75 220, 230 - 00 231 - 71 210-1 - 85 207 - 01 270 - 79 203 - 74 321 - 70 TEXT BOOKS. XXXlll TAC.K 1 Cliit., Crim. L., 339 - - . . . - 92 ,, ,, 418 - 101 .. „ 418 - - - - 115 „ „ 532 - 95 „ „ 645 - - _ - 165 „ „ 647 - 166 „ „ 654 - - - - 174 ,, ,, 419 - 172 Chit., Pled., 7th ed., 23G, 243 - - - 72 Com. Dig., Indict. (K) - 106 „ Information, A1 - - - 89 Cro. Cir. Comp., 15 - - 92 „ „ 21 - - - - 115 „ „ 22 - - 143 „ „ 43 - - - - 86 Co. Ent., 356, 390 - - 172 Co. Lit., 36 - - - . - 77 „ 79,171,247 - - 5 „ 247 - - - - - 6,7 „ 156 - - - 133 ,, lo6 A - - - - - 130 „ 156 B - - 134 „ 157 A - - - - - 134 „ 157 B - - 130 „ 158 A - - - - - 136 „ 227 B - - 138, 1G3 003 _ „ _ - - 104 Dalton, *476, 505 - - 5 „ c. 114 - - - - - 45 „ C. 147 - - - 5 ,, c. 110, new ed., 1G3, 538 - - - 20 Dick, Scss., 13, 14, 375-G - 173 „ „ 230 - - - - - 92 Doctor and Student, c. 2G - 5 „ „ 158, 272 - - - 138 1 East, P. C. 303 - - 17 ,, ,, 300 “ " * - - 17 2 „ „ c. 1G, s. 13G, 740, 741 07, 85 ,, ,, „ 708, 784 - - - - 104 „ „ „ 782, 928 - - - 81 Fitz. corone. 57 - - - - - 5 Fost. 10 - - - 97, 115 ,,23 - - - - - 97 „ 42 - • - - 133 „ 43 ------115 „ 10G ------133 „ 310 ------• 17 Greenl. ev. 189 ------150 1 Hale., P.C., 14 ------4 „ 20 ------4 „ „ 25 ------5 „ ,,27 ------5 „ „ 28 ------5 ,, ,,30 ------7 „ „ 30, 412 - - - * - - 110 d XXXIV TEXT BOOKS. FACE 1 Hale, P.C., 32 - - 7 a ,, 33 - 0 ?* „ 34 0, 7, 99 i) „ 131 - 0, 7 „ 531 - 07, 85 >> „ 585 - 147 3 >» „ 124 - - 48 >> „ 100 - 58 „ 100 - - 00 ,, „ 170 - 78, 79 j ’ „ 173 - 01, G3 „ 175 - 75, 115 >> „ HI - - 75 ,, „ 182 -GO, 70, 83 ,, „ 183 - - 83 ., 184 - G8, 74 jj „ 210 - - 95 „ 218 - 101 ?> „ 219 - - 90 5 J „ 245 - 07 >» » 251 - - 113 ,, „ 252 - 115 ,, „ 208 - - 133 >> „ 270 - 130 ,, „ 271 - - 128 >? „ 275 - 132, 130 „ 391 - 113, 172 1 Hale., Sum., 90 - 45 „ „ 07 - 49 „ 201 - 127 1 Hawk., P.C., c. 1, s. 1, Note (1 - 5 „ „ s. 0 - - 7 c. 9, s. 23 - 45 c. 4, s. 12 - 174 c. 12, s. 20 - 17 c. 13, s. 8 - 17 c. 14, s. 1 - 24 c. 15, s. 3 - 48 c. 15, s. 4 - 49 c. 23, s. 128 - 112 c. 25, s. 57, 59 - 09 ,, s. 58 - - 71 02 - 70 s. 70 - 70 s. 71 75, 70 „ s. 89 - 01 „ s. 90 - 80 „ s. 101 - 79 „ s. 103 - 79 c. 20, s. 3 - 89 c. 27 - - 91 c. 28 . - 90 c. 43 . - 135 c. 13, s. 4 - 57, 133 „ s. 11 - 134 TEXT LOOKS. XXXV

2 Ilawlc., c. -13, s. 28 - 130 s. 31 128 R. 47 - 127 c. 17 s. 8 104 s. 0 101, 105 s. 10 100 s. 12 174, 175 c. 48, s. 17 100 1 Inst., 150, 158 120, 130 ,, ~~007 1 . 138 ,, 358 - 132 2 „ 318 - 70 3 „ 34 - 00 „ 110 - 103 „ 234 - 115 . „ 334 - 115 Mirror, Tlie, c. 51 - - - - 00 Oke’s Formalist, 400 - - - 42 1 Pliill. Ev., 404 - - - - 147 Plowdcn, Comm., 510 - - - 138 Past, ent., 204 - - - - 128 47, 51, etc. - - 172 2 Poll., Abr., 080 * - - - 105 1 Puss, on Crimes and M., 4th ed. 11 note (m) 08 „ „ „ 28 - - 121 3 „ „ „ 200 - 153 „ „ „ 125 - - 40 „ „ „ 013, 017 - 142 2 Sclwyn, N.P., Malicious Prosecution, 1054 - 87 Show 131 05 Staunfs., P.C., 52 - 45 00 a. 85 >» >j 78 - - - 00 „ „ 103 a. - - 115 „ „ 1G2 - * - 135 Taylor on , sec. 044, et scq. 140

CRIMINAL LAW.

CHAPTER I.

OF CRIMES AND THEIR DIVISION. Offences subject to indictment or prosecution at the suit of the Crown in the Colony of Victoria may be considered under three classes, viz.: I. . II. Felonies. III. Misdemeanors. I. , at , was somewhat loosely defined. Tre^on. The Statute 25 Edwd. III., St. 5, c. 2, however, confirmed by subsequent Statutes, 3G Geo. III., c. 7, 57 Geo. III., c. G, and II and 12 Viet., c. 12, determined what offences should alone in the future be punished as Treason. They are the following— 1. Compassing or imagining the death of our Lord the King, of our Lady the Queen, or of their eldest son and heir. 2. Violating the King’s companion or the King’s eldest daughter unmarried. 3. Levying war against our Lord the King in his realm. 4. Being adherent to the King’s enemies in his realm ; giving to them aid and comfort in the realm or elsewhere. 5. Counterfeiting the King’s Great or Privy Seal. G. Slaying the Chancellor, or Treasurer, or the King’s Justices of the one Bench or the other, the Justices in Eyre or Justices of Assize, and all other Justices assigned to hear and determine, being in their places doing their offices. II. Felony is described as including every species of Felony. crime which occasions at Common Law the for­ feiture of Land or Goods or both. III. Misdemeanor is described as including every indict- Mine­ able offence less than Felony, and the word is generally used in contradistinction to Felony. B 2 OFFENCES.

Principal The principal offences known to the Law arc alphabeti­ otTciiOuJ. cally tabulated below. The Letter (F.) or (M.) affixed to each offence denotes that it is a Felony or a Misdemeanor. Abduction, at Common Law, is the unlawful taking away of women and children. (M.) The offence is in certain cases made penal by Statute. (F.) Abortion consists in certain acts intended to procure the miscarriage of a woman with child. (F.) , at Common Law, is the malicious and wilful burning of any house or outhouse of another, and by Statute is the similar burning of any house or outhouse with intent to defraud. (F.) . # Bigamy is the marrying another husband or wife during the life of the first. (F.) Burglary, at Common Law, is the breaking and entering in the dark of night into the dwelling-house oi another, with intent to commit a felony therein. By Statutes, the nature of the house and the hour of night have been defined. (F.) is the confederacy or agreement of two or more persons to injure an individual, or to do any other unlawful act or acts prejudicial to the community, or to do a lawful act by unlawful means. (M.) Embezzlement is where any clerk or servant, or any person employed for the purpose, or in the capacity of a clerk or servant, receives by ^virtue of sucli- emjdoyment' any chattel, money, or valuable security for or in the name of or on the account of his master, and wilfully omits or refuses to account to him for the same. (F.) False Pretence is when a person by any false statement of a pretended existing fact obtains from another person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same. (M.) is the false-making or alteration of an instrument which purports on the face of it to be good and valid for the purposes for which it was made, with a design to defraud any person or persons. (F.) At Common Law. (M.) Homicide is the technical legal term for every killing of one man by another either legally or innocently, as in lawful war, or in execution, or by misadventure; OFFENCES. 3 or feloniously as manslaughter and murder. (Which see.) (F.) ^ # # Housebreaking is the forcible entry into or exit from tho house of another, by night or day, accompanied with an act of Felony. (F.) Larceny comprises both simple Larceny and Larceny with aggravation, as . (Which see.) Simple Larceny consists in the felonious taking of tho property of another without his and against his will, with intent to convert it to the use of the taker. (F.) Libel is the malicious publication of any defamatory or contumelious matter against another by print, writing, signs, or pictures. (M.) Manslaughter is the unlawful killing of another without malice, cither express or implied. (F.) Murder is where a person of sound memory and of tho ago of discretion, and of malice aforethought either express or implied, unlawfully killcth another. (F.) Perjury is tho swearing wilfully, corruptly, and falsely in some judicial proceeding before a competent juris­ diction to some oath or affirmation lawfully administered. (M.) Rape is where a man hath carnal knowledge of a woman where she did not consent either before or after. „ (F;) . . Receiving is the receiving, knowing tho same to have been stolen or taken, &c., of any money, chattel, or valuable security, tho stealing or taking, &c., of which amounts to Felony. (F.) Riot is where three or more actually do an unlawful act of violence, with or without a common cause or quarrel; or do a lawful act in a violent or tumultuous manner, to tho terror of liege subjects. (M. or F.) Robbery is a taking away money or goods of any valuo from the person of another, or in his presence, against his will, by force or violence, or by putting him in fear. (F.) * Sodomy is having carnal connection with another, or with any animal, against the order of nature. (F.) Subornation of Perjury is the procuring another person to commit perjury. (M.) PERSONS CAPABLE OF COMMITTING CRIMES.

CHAPTER II.

PERSONS CAPABLE OF COMMITTING CRIMES. As a general rule, no person is excused from punishment for disobedience to the laws of the country, unless he be expressly delined and exempted by the laws themselves— 4 111 a. Com. 20. . In considering the several pleas and excuses which may be urged on behalf of a person who has committed a for­ bidden act, as grounds of exemption from punishment, it may be observed that those pleas and excuses must be Want or founded upon the want or defect of will in the person by defect of will. whom the act has been committed. For without the consent of the will human actions cannot be considered as culpable. Nor where there is no will to commit an offence is there any just reason why a person should incur the penalties of a law made for the punishment of offences—1 Hale 14. The cases of want or defect of will may be reduced to four 1 leads : I. Infancy. II. Non compos mentis. III. Subjection to the power of others. IV. Ignorance. Infants I. The full age of man or woman by the law is twenty- committing Tnisdomt'.'in- one years, under which ago a person is termed an infant, ours. and is exempted from punishment in some cases of misde­ meanor and offences that are not capital—1 Hale 20. But the nature of the offence will make differences which should be observed: thus, if it be any notorious , as a riot, , or for perjury or with false dice or the like, he is equally liable as a person of full ago, because upon his trial the Court ex officio ought to consider whether he was doli capax and had discretion to do the act with which he is charged. But if the offence charged be a mere non-feasance (unless it be of such a thing as he is bound to do by reason of his tenure or the like, as to repair a bridge, &c.)—Rex v. Sutton, 3 A. and E. 597, there in some cases lie shall be privileged if under twenty-one, though above fourteen years; because laches in such a case shall not be imputed to him—1 Hale, 20 ; Bac. Abr. In. (H). Infants With regard to capital crimes the law is more minute and committing capital circumspect, distinguishing with greater nicety the several crimes. PERSONS CAPABLE OF COMMITTING CRIMES. degrees of ago and discretion, though tho capacity of doing ill or contracting guilt is not so much measured b}T years and days as by the strength of the offender’s understanding and judgment—1 Bl. Com. 23. But within the age of seven years an infant cannot be punished for any offence, whatever circumstances of a mischievous discretion may appear; for ex prcswmptionc juris such an infant cannot have discretion ; and against this presumption no averment shall be admitted —1 Hale, 27, 28 ; 1 Hawk, c. 1, s. 1, note (1) ; Marsh v. Loader, 14 C. B., N. S., 535. But the criminal acts of infants who have attained the wium four- age of fourteen years are subject to the same modes of con- n~o.iyoars uf struction as those of the rest of society; for tho law presumes them at those years to be doli capaccs and able to discern between good and evil, and therefore subjects them to capital punishments as much as if they were of full age— 1 Hale, 25 ; Doct. and Stud., c. 26 ; Co. Lit., 79, 171, 247; Dalt. 47G, 505. . Between the age of seven and fourteen years an infant Between shall bo deemed primd facie to be doli incapax, and pro- fourteen sumed to be unacquainted with guilt; yet this presumption yc;u'd< of Age- will diminish with the advance of the offender’s years, and will depend upon the particular facts and circumstances of his case. The evidence of malice, however, which is to supply age, should be strong and clear beyond all doubt and contradiction; but if it appear-to tho Court and jury that the offender was doli capax, and could discern between good and evil, he may be convicted and suffer death—1 Hale 25— 27. Thus it is said that an infant of eight years old may bo guilty of murder, and shall be hanged for it—Dalt. Just. c. 147; and an infant between the age of eight and nine years was executed for arson, it appearing upon examination that he was actuated by malice, revenge, craft, and cunning— Dean's Case, 1 Hale 25, Note (u); so a girl of thirteen was burnt for killing her mistress—Alice dc Waldborourjlis Case, 1 Hale 26. An infant of the age of nine years, having killed an infant of a like age, confessed the felony, and upon examina­ tion it was found that ho had hid the blood and the body. The justices held that lie ought to be hanged, but they respited the execution that he might have a pardon—Fitz. corone 57; R. v. Yorke, Fost. 70, Rex v. Wild; 1 Moo. C. C. 452. Another infant of the age of ten years, who had killed his companion and hid himself, was, however, actually hanged ; upon the ground that it appeared by his hiding G PERSONS CAPABLE OF COMMITTING CRDIES.

that lie could discern between good and evil, and malitia supplet cctatem—SpigurnaVs Case, 1 Hale 2G. tleC3til?n for Whenever a person under the age of fourteen years is ’ charged with committing a felony, the proper course is to leave the case to the jury to say whether at the time of committing the offence such person had guilty knowledge that he was doing wrong—Rex v. Owen, 4 C. and P. 23G; Reg. v. Smith, 1 Cox, C. C. 2G0. nmiLTfour- c;lse °f rape the law presumes that an infant under teen years the age of fourteen years is unable to commit the crime, commit tho and therefore he cannot be guilty of it—Rex v. Groom- ™f bridge, 7 C. and P. 582. So also for the like reason such an infant cannot be guilty of an assault with intent to commit a rape—Rex v. Elder- shaiv, 3 C. and P. 39G ; Reg. v. Philips, 8 C. and P. 73G ; or of carnally knowing a girl under ten years of age—Reg v. Jordan, 9 C. and P. 118 ; Reg. v. Brimilow, 2 Moo. C. C. R. 122. And this presumption cannot be rebutted, and evidence is not admissible to prove that the infant is in fact com­ petent to commit any such offence—Reg. v. Philips, Reg. v. Jordan, supra. But this presumption is upon the ground of impotency rather than the want of discretion ; for he lie may to a may be a principal in the second degree, as aiding and

till)principal fcCCOlul m assjsyng [n this offence as well as in other felonies, if it decree. appear by sufficient circumstances that he had a mischievous discretion—1 Hale 630 ; Rexv. Eldershaiv, 3 C. and P. 39G j see R. v. Allen, 1 Dea. C. C. 3G4. Of persona non compos II. It has been considered that there are four kinds of J luutia. persons who may bo said to be non compos : 1. An idiot. 2. One made non compos by sickness. 3. A lunatic. 4. One that is drunk. But it should be observed that every person at the age of discretion is presumed sane, unless the contrary is proved ; and if a lunatic has lucid intervals, the law presumes the offence of such person to have been committed in a lucid interval, unless it appears to have been committed at the time of his distemper—1 Hale, 33, 34. An idiot is a fool or madman from his nativity, and one who never has any lucid intervals—Co. Litt. 247 ; and such an one is described as a person that cannot number twenty, tell the days of the week, does not know his father or mother, his own age, &c. ; but these are mentioned as instances PERSONS CAPABLE OF COMMITTING CRIMES. 7 only, for whether idiot or not is a question of fact for the jury—Bac. Abr. Idiots (A.); Bro. Abr. Idiot 1; F. N. B. 233, and ought to be clearly made out to exempt the accused from punishment—It. v. Arnold, 8 St. Tri. 317, 1G St. Tri. 7G4, 7G5. One who is deaf and dumb from his birth, who has no means of learning to discriminate between right and wrong, or of understanding tho penal enactments of the law as applicable to particular offences, is by presumption of law an idiot; but if it appear he has the use of understanding, which many of that condition discover by signs to a very great measure, then lie may bo tried and suffer judgment and execution, though great caution should be observed in such a proceeding—1 Hale 31 ; sec If. v. Jones, 1 Leach 102; If. v. Steel, 1 Leach 451, Moor 4 pi. 12; If. v. Esther Dyson, York Sp. Ass. 1831; Matthews Dig. 410. A person made non compos mentis by sickness, or, as it Konempo* has been sometimes expressed, a person afllictcd with demon- wckuw**. tia accidentalis vel adventitia, is excused in criminal cases from such acts as are committed while under the influence of his disorder—1 Hale 30; Bac. Abr. Idiots (A.) Several causes have been assigned for this disorder, such as the distemper of the humors of the body, the violence of a disease, as fever or palsy, or the concussion or hurt of the brain ; and, as it is more or less violent, it is distinguishable in kind or degree from a particular dementia in respect of some particular matters to a total alienation of tho mind, or complete madness—1 Halo 30. A lunatic is one labouring also under a species of the Lunatic dementia accidentalis vel adventitia, but distinguishable in this—that he is afflicted by his disorder only at certain periods and vicissitudes, having intervals of reason. Such a person during his frenzy is entitled to the same indulgence as to his acts, and stands in the same degree with one whose disorder is fixed and permanent—1 Co. 125, Co. Litt. 247; 1 Hale 131. The name of lunacy was taken from the influence which the moon was supposed to have in all disorders of the brain, a notion which has been exploded by the sounder philosophy of modem times. With respect to a person non compos mentis from drunk- Fcrsono enness, a species of madness which has been termed demen- ’ tia afectata, or acquired madness, it is a settled rule that if the drunkenness be voluntary, it cannot excuse a man from the commission of any crime—Co. Lit. 247, 1 Hale, 32 ; 1 Hawk, P. C. 1, s. G ; but, on the contrary, must be considered as an aggravation of whatever lie does amiss—4 Blac. Com. 8 PERSONS CAPABLE OF COMMITTING CRIMES.

2G, Plowd 10, Co. Litt. 247—Beverley's Case, 4 Co. 125. Yet if a person, by the unskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes frenzy, this puts him in the same condition with any other frenzy, and equally excuses him ; also, if by one or more such practices an habitual or fixed frenzy be caused, though this madness was contracted by the vice and will of the party, yet the habitual and fixed frenzy caused thereby puts the man in the same condition as if it were contracted at first involuntarily—1 Hale, 32. And although voluntary drunkenness cannot excuse from tho commission of crime, yet where, as upon a charge of murder, the material question is, whether an act was pre­ meditated or done only with sudden heat and impulse, the fact of the party being intoxicated has been holdcn to be a circumstance proper to be taken into consideration—Rex v. Grindley, Worcester Sum. Ass. 1819, M. S.; R.v. Thomas, 7 C. and P. 817 ; R. v. Median, 7 C. and P. 297; but see Rex v. Carrol, 7 C and P. 145. Subjection to the powe: III.—Persons are properly excused from those acts which of others. are not done of their own free will, but in subjection to the 'power of others—1 Hale 43, 4 Bla. Com. 27. And actual force upon the person and present fear of death may, in some cases, excuse a criminal act. Thus, although the fear of having houses burnt or goods spoiled is no excuse in law for joining and marching with rebels; yet an actual force upon the person and present fear of death may form such excuse ; provided they continue all the time during which the person remains with the rebels—18 St. Tri., 393 ; Reg. v. Tyler, 8 C. and P., GIG. And in general the person committing a crime will not be answerable if he was not a free agent, and was sub­ ject to actual force at the time the act was done. Thus, if A by force take the arm of B, in which is a weapon, and therewith kill 0, A is guilty of murder but not B; but if A be only a moral force put upon B} as by threatening him with duress and imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C, it is no legal excuse—1 Hale 433, 1 East. P. C.,c. 5, s. 12, 225. An idiot or lunatic, or a child so young as not to be punishable for his criminal act, when made use of for the purpose of committing crimes, are merely the instruments of the pro­ curer, who will be answerable as a principal—1 Hawk P. C. c. 31, s. 7; 1 East P C. c. 5, s 14, 228. As to persons in private relations, the principal case where constraint of a superior is allowed as an excuse for criminal PERSONS CAPABLE OF COmilTTlNG CRIMES. 9 misconduct proceeds upon the matrimonial subjection of tho wife to her husband ; for neither a child nor a servant arc excused the commission of any crime, whether capital or not capital, by the command or coercion of the parent or master—1 Hale 44, 51G ; 1 Hawk P. C., c. 1, s. 14 ; Moor 813; 3 Kel. 34. But a feme covert is so much favoured in respect of that power and authority which a husband lias over her, that she ctvrvion of shall not suffer any punishment for committing a bare , horhusb:md- or even a burglary, by the coercion of her husband, or in his company, which the law construes a coercion—1 Hale, 45 ; 1 Hawk, P. C., c. 1, s. 9; 4 Bla. Com. 28; Kel. 31. But this is only the presumption of law; so that if upon the evidence it clearly appear that tho wife was not drawn to the offence by her husband, but that she was the principal incitor of it, she is guilty as well as the husband. And if she bo any way guilty of procuring her husband to commit the offence, it seems to make her an before tho fact in the same manner as if she had been sole—1 Hale, 51G ; 2 Hawk, P. C., c. 29, s. 24. And if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of murder, treason, or robbery—Reg. v. Buncombe, 1 Cox C. C. 183, in company with, or by coer­ cion of her husband, she is punishable as much as if she were sole—1 Hawk, P. C. c. 1 s. 11; 1 Hale, 45, 47, 48, 51G. And she will bo guilty in the same manner of all those crimes which, like murder, are mala in se> and prohibited by the law of nature—4 Blac. Com. 29. And in one case it appears to have been held by all the judges, upon an indict­ ment against a married woman, for falsely swearing herself to bo next of kin and procuring administration, that she was guilty of the offence, though her husband was with her when she took the oath—Rex v. Dicks, 1 Russ. 34. But upon an indictment for disposing of forged notes, it was ruled that a woman was protected by being the wife of a man with whom she was indicted, who disposed of them in her presence—Rex v. Atkinson, 1 Russ. 47. So, where on an indictment against husband and wife for feloniously wounding with intent to disfigure, tho jury found that the wife acted under the coercion of her husband, and did not herself per­ sonally inflict any violence upon the prosecutor, it was held she ought to have been acquitted—Reg. v. Smith, 1 D. and B. C. C. 553; IV.—Upon the plea or excuse of ignorance, it may bo ignorance, shortly observed, that it will apply only to ignorance or 10 PERSONS CAPABLE OF COMMITTING CRIMES. mist alee of fact and not of any error in point of law. For ignorance of tho municipal law of the kingdom is not allowed to excuse anyone that is of the age of discretion and compos mentis from its penalties when broken ; on the ground that every such person is bound to know the law, and presumed to have that knowledge—1 Hale, 42 ; 4 Blac. Com. 27; see Reg. v. Crawshatv, 1 Bell, C. C. 303. . # And it is no defence for a foreigner charged with a crime committed in England that he did not know he was doing wrong, the Act not being an offence in his own country Rex v. Rsop, 7 C. and P. 456. Where, therefore, two French­ men were committed on a charge of murder in a duel, and alleged that they Avero ignorant of the law of England, and believed that acting as seconds in a fair duel -was not punishable here as it was not punishable in France, and that this was a fair* duel, it was held that they were precisely in the same position as if they were native subjects ot Eng­ land, and the Court refused to bail them—Barroncts Case, 1 E. and B. 1; 1 Dears. C. C. R 51. And as a ship, public or private, on the high seas, is for tho purpose of jurisdiction over crimes committed therein a part of the territory to which the ship belongs, a person voluntarily coming on board an English ship is as much amenable to the criminal law of England as if he came voluntarily into an English county, and ignorance of the law is no more an excuse in the one case than the other—Reg. v. Sattler ; Reg. v. Lopez, D. and B, C. C. 525. In some instances an ignorance or mistake of tho fact will excuse, which appears to have been ruled in cases of misfortune or casualty: as, if a man intending to kill a thief or housebreaker in his owrn house by mistake kills one of his family, this will not be a criminal action—Lcvdt’s Casey Cro. Car. 538 ; 4 Blac: Com. 27 ; 1 Hale 42, 43. But this rule proceeds upon a supposition that the original was lawful; for if an unforeseen consequence ensue from an act which Avas in itself unlawful, and its original nature wrong and mischievous, tho actor is crimi­ nally responsible for vdiatcver consequence may ensue— 4 Blac. Com. 27. TIIE PROSECUTOR. 11

CHAPTER III. TIIE PROSECUTOR. Upon tlio commission of an offence, the first question to be considered is, By whom may the offender be brought to justice ? ; Any porsoji Though every person is entitled to prefer an accusation i» entitled to against any one suspected of crime, yet it is not usual for prefer r.n any to interfere who is not individually aggrieved by the accusation. offence, or who does not fill some office making it his duty or rendering it peculiarly incumbent on him to bring tlio offender to justice. Criminal prosecutions for the most part are instituted in the name of the Crown, and persons on whom it is incumbent to prefer accusations arc bound by the strongest obligations both of public duty and reason to do so. Indeed, these obligations are in many cases enforced by the law itself. But no person ought to have a beneficial interest in a prosecution ; it should be carried on for the public benefit. Park J.: Rex v. Paul, G C. and P. 321. In this Colony the Police for the most part institute Tolico. proceedings in any case of Felony reported to them. A criminal prosecution, commenced for the furtherance of rroflooutlonn do not abate public justice and to punish violations of the Peace, does by death of tlio Sove­ not abate on the demise of the reigning Sovereign, or by reign or the death of the prosecutor, as in the case of the death of a prosecutor. plaintiff in a civil action, and that even though the injury be chiefly of a personal land, as an assault or a libel. Any engagement made or security given by a defendant to a Compromis­ prosecutor by way of compromise, without leave of the Court ing prosecu­ is invalid—Collins v. Blantcrn, 2 Wils., 311; Edg combe v. tions. Rodd and another, 5 East, 294. Indeed the law does not authorise a private person to forego a prosecution on any terms—Reg. v. Daly, 9 C. and P. 342. But in cases of misdemeanor it is sometimes allowed after conviction, with the sanction of the Court, and when the offence principally and more immediately affects an individual. The defendant is then permitted to “ speak with ” the prosecutor, before the Court pronounces any judgment, and if the prosecutor declares himself satisfied, only a trivial punishment is inflicted—4 Black. Com. 3G3, 3G4; Becley v. Wingfield, 11 East 4G ; Baker v. Townsend, 7 Taunt 422. But in general any or security made in consideration of staying a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offence without leave of 12 ARREST. tlio Court, is invalid. It lias been laid down that tlio law will permit a compromise of all offences, though made tlio subject of a criminal prosecution, for which tlio injured party might recover damages in an action—Kirlc v. Striclc- wood, 4 13. an

CHAPTER IV. ARREST. All persons whatsoever are without distinction equally liable to be arrested in cases of treason, felony, or an indictable misdemeanor. Arrest. In general an arrest may be made in four ways—Firstly, by warrant; secondly, by an officer without warrant; th irdly, by a private person also without warrant; fourthly, by a constable or private person on a hue and cry. By warrant. Firstly, Arrest by Warrant.—A warrant is ordinarily issued by a magistrate under the Statute 267. ■Warrant This Statute (Sec. 52) provides that where a charge or mrainst a per­ son charts'll 4 complaint is made before any magistrate that any person with imliet- aljlo offence. has committed, or is suspected to have committed, any treason, felony, or “indictable” misdemeanor, or other “ indictable” ofFence whatsoever, within the limits of the jurisdiction of such magistrate ; or that any person guilty, or suspected to be guilty, of having committed any such crime or ofFence elsewhere out of the jurisdiction of such magis­ trate, is residing or being or is suspected to reside or be within the same, then (if the party shall not be in custody) the magistrate may issue a warrant to apprehend him, and cause him to be brought before the same or any other justice to answer such charge or complaint, and to be dealt with

Note.—There are no indictments in this colony, all offences in the Supremo Court, Circuit Courts, and Courts of General Sessions are prosecuted by information. See 15 Vic. No. 10, sec. 12, and 28 Vic. No. 2G7, sec. 2G. The expression “ ” is used in tho Statute 2G7, as well as in the 389 Section of the Statute 233. As to tho construction to be put upon such words in the latter Statute, see Beg r. Whelan, Sup. Ct. Victoria, 2G March, 1808. ARREST. 13 according to law; or the magistrate may, in his discretion, fj"™™0110 in issue a summons in the first instance in lieu of a warrant, c ’ and forbear to proceed by warrant until the summons has been disobeyed. This extends to offences committed within the jurisdiction of the Admiralty, and on land beyond tho seas, in cases on the high for which an information may legally bo exhibited in 6oas‘ Victoria (Sec. 51). Where a warrant in the first instance is applied for, an information and complaint in writing, and upon oath, must oath, imt bo laid before the magistrate (Sec. GO), but where only a notHmnnlOT',,• summons, the information or complaint may be by parol, and no oath is necessary. The form of warrant is prescribed by the Statute itself, and it may be issued on a Sunday (Sec. 57). When the warrant is received by the officer, lie is bound to execute it so far as the jurisdiction of tho magistrate and warrant", himself extends, and ho may break open doors in order to execute a warrant for treason, felony, or actual breach of the peace, provided on demand admittance cannot other­ wise be obtained—Raivlins v. Ellis and others, 1G M. and W. 172. And summonses purporting on the face thereof to beBorvice of issued within tho limits of the jurisdiction ol a magistrate may be executed or served within any part of Victoria, although beyond the limits of such jurisdiction; but warrants to be executed in Victoria, out of the jurisdiction ^irmnt cmtf of the magistrate issuing the same, must be endorsed in the manner hereafter mentioned. Nor is there any immunity jum

v 4 14 ARREST. como or go into, reside or be, cr be supposed or suspected to bo, in any place in Victoria out of the jurisdiction of the justice issuing such warrant (whether the same has been issued in Victoria or elsewhere)* any justice of the peace, upon proof alone being made on oath of the handwriting of the justice issuing such warrant, may make an endorsement on such warrant, signed with his name, authorising the execution of such warrant within the jurisdiction ot the justice making such endorsement. The following may be the form of the endorsement on backing a warrant:—

Form Whereas proof upon oath hath this day been made before me, one of Her Majesty’s justices of the peace for the colony of Victoria, that the name of J. S. to the within warrant subscribed is of the handwriting of tho justice of the peace within mentioned, I do therefore hereby authorise W. T., who bringeth to me this warrant, and all other persons to whom this warrant was originally directed, or by whom it may be lawfully executed, and also all other constables and peace officers of the said colony, to execute the same within tho said last-mentioned colony. (And the justice, if he think fit, may add :) And to bring the said A. B., if apprehended within the said colony, before me or some other justice or justices of the peace of the same colony, to be dealt with according to law. Given under my hand, this day of , 187 . J.L.

Accused to When the person against whom this warrant is issued has bo Liken Left>ro a been apprehended, he should bo taken before the justice who magistrate. first issued the warrant, or before any justice for Victoria. And the justice before whom the accused is brought may proceed to inquire into the charge as therein mentioned, or may order the prisoner to be taken and conveyed to the justice who first issued the warrant, and such last mentioned justice shall thereupon proceed as if the prisoner had been apprehended within his jurisdiction.

* It may bo a question whether this will justify a magistrate of this colony backing a warrant issued in another colony, and sending the prisoner, when apprehended, to the colony in which tho warrant issued; tho Parlia­ ment of Victoria having power only to make laws applicable to tho colony. AllREST. 15

Secondly, Arrest by officers without warrant may bo executed—1. By a magistrate, who may himself apprehend iut warrant’ or cause to be apprehended by word only any person com­ mitting a felony or breach of the peace in his presence. 2. The sheriff 3. The coroner, as conservator of the peace, sheriff,ami may apprehend any felon within his jurisdiction without Uonmor- warrant—Jervis on Coroner 21. 4. A constablo may, with-constable*, out warrant, arrest for treason, felony, or breach of the peace committed in his view, and take the offender before a magistrate. So upon a reasonable charge of treason or felony, or of a dangerous wounding whereby felony is likely to ensue, or upon his own reasonable suspicion that any such offences have been committed, a constable may without warrant arrest the party so charged or suspected, and he will be justified in doing so, though it should afterwards turn out that tho party is innocent, or even that no such offcnco has in fact been committed—Lawrence v. Hedger, 3 Taunt 14; Nicholson v. Hardwick, 5 C. and P. 405; Ilogg v. Ward, 3 H. and N. 417; Griffin v. Coleman, 4 H. and N. 2G5. But lie should act with becoming caution and a reasonable ground of suspicion—Beckwith v. Philby, G B. and C. 3G ; Mure v. Kaye, 4 Taunt 34. In cases of misdemeanor not committed in view of a con- Mi*ie- stablc, ho cannot arrest without a magistrate's warrant, mcauor‘ although tliere be a positive charge, and any arresting for a misdemeanor committed in view must be made at tho timo or on continued pursuit—R v. Walker, 23 L. J., M. C., 123. In cases where a constable arrests for a misdemeanor under a rosr?e::!

Arrest by Thirdly, any private person (and a fortiori a peace officer) private per son3. who is present token any felony is committed is bound by law, without warrant, to arrest the felon, on pain of fine and imprisonment if the felon is negligently permitted to escape. IYrsorn By Statute 233, Sec. 401, any person may apprehend, committing oflV'IXVS without warrant, any person found committing any of the .'main^t 2nd part of Act offences punishable under the 2nd part of that Act, either 233. upon indictment or upon summary conviction (except only the offence of angling in the day time), and may carry such offender and the property (if any) found on him to a neigh­ bouring magistrate, by him to be dealt with according to law. Persons And by the 402nd Section of the same Statute, any found com­ mitting in- person whosoever may apprehend any person committing dietiildo and otheroUbnciM any indictable offence by nighty or unlawfully and mali­ in tho night. ciously wounding or inflicting upon any other person either with or without any weapon or Armed by instrument, or any person found by night armed with any night with intent, &c. dangerous or offensive weapon or instrument with intent to break into any dwelling-house, or other building, and to commit felony therein, or any person who shall bo found by night having in his possession, without lawful excuse, any pick-lock, key, crow, jack, bit, or other implement of house-breaking, or who shall be found by night having his face blackened or otherwise disguised with intent to commit any felony, or who shall be found by night in any dwelling- houso or other building with intent to commit felony therein, or within any enclosed yard, garden, or area without lawful excuse, and may convey such offender to some con­ stable in order to his being taken before a magistrate. Persons And by the 403rd Section of the same Statute, any person causing harm by neglect. present when any act shall be done or omitted to be done by which any person shall cause grievous bodily injury to any other person, may apprehend the offender and deliver him to a constable, in order to his being taken before a magistrate. Persons com­ And by the 405 th Section of the same Statute, any mitting of­ fences person found committing any offence against the third part against 3rd part of Act of that Statute may be immediately apprehended and carried 233. to a magistrate, without a warrant, either by a peace officer, or the owner of the property injured or his servant, or other person authorised by such owner. Persons And by the 40Gth Section of the same Statute loitering at night and any constable or peace officer may take in custody, without suspected. warrant, any person found lying or loitering in any highway, yard, or other place, diu-ing the night, and whom he shall have good cause to suspect of having committed or being ARREST. 17 about to commit any felony against the first, second, or third parts of that Statute. And any person may, it is said, legally arrest in the night time a suspicious night walker, though he be quite innocent —1 East P. C. 303 ; 2 Haw, c. 12, s. 20; per Lawrence J., in Lawrence, v. Hedger, 3 Taunt I k Any person may arrest a common, notorious cheat, going Clicat- about the country with false dice, and being actually caught playing with them, in order to take him before a justice— Holyday v. Oxenbridgc, Jones, 210 ; Cro. Car. 27*1, and seo 2 Haw, c. 12, s. 20. So any one may arrest a lunatic who seems disposed to do Lunatic, mischief—Bac. Ab. Trespass [D. 3] ; but to justify such an act, it must appear that the person really was a dangerous lunatic, and not merely that he conducted himself so as to appear to be so—Fletcher v. Fletcher, 1 Ellis and E. 420, 28 L. J. Qr. B. 134. So any person may arrest another for tho purpose of putting a stop to a breach of the peace committed in his presence—2 Haw, c. 13, s. 8; Timothy v. Simpson, 1 C. M. and R. 757 ; care must be taken, however, that what had occurred did actually amount to a breach of the peace. Webster v. Watts, 1*1 Q. B. 311. Cohen v. Hushisson, 2 M. and W. 477. Ingle v. Bell, 1 M. and W. 51G. Wooding v. Oxley, 9 C. and P. 1. Wheeler v. Whiting, 9 C. and P. 2G2. Shaw v. Chairitie, 3 C. and K. 21. Before a private person interferes to prevent a breach of the peace, he is bound to notify his intention of so doing, * otherwise the parties engaged may imagine that he comes to act as a party—1 East P. O. 30G, Fost 310. But where the circumstances are such that a man must know why a person is about to arrest him he need not be told, and the arrest will be legal, and the resistance illegal, as much as if he had been told—R. v. Iloivath, 1 M. C. O. 207. Lastly, by the 5Gth Section of the Police Offences Statute 2G5, any person whosoever, with or without warrant, may under Police arrest any person found offending against the provisions of ytatutosos. the first, second, and third parts of that Statute. First Part.—Relates to offences against the good order ofFirPt rart- towns. Second Part.—Relates to offences of the following dcscrip- second part, tion : Throwing offensive matter or live animals into rivers, Ac., used for the supply of water. c 18 ARTIEST. Assaults ; offences with horses and vehicles by drivers and carters ; allowing cattle to wander upon streets or thoroughfares ; offences with dogs; obstructions on roads; carrying timber, See., across vehicles; offences by drivers and guards of vehicles ; the wilful destruction of property", public or private ; wilfully trespassing ; committing injury or damage to property ; having in possession propert}r impro­ perly taken or stolen, and not satisfactorily accounting for it. Setting fire to corn or grass, or leaving such fire burning. Cruelty to animals ; destroying property with intent to steal; drunkenness; singing obscene songs, or writing or drawing indecent or obscene words or figures or representations, or using profane, indecent or obscene language in any public street or place, or within view or hearing of persons passing, and using threatening, abusive, or insulting words or behaviour in any public place or street, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. Refusing admission of constables to bowling alleys, skittle grounds, and wrestling places. Sunday trading and lotteries. Third Part.—Relates to offences by vagrants and idle and disorderly persons : Persons having no visible lawful means of support not giving a good account of such means. Persons lodging or wandering in company with aborigi­ nal natives. Habitual drunkards. Common prostitutes behaving in a riotous and indecent manner. Occupiers of houses frequented by thieves or persons having no visible lawful means of support. Persons wandering abroad or placing themselves in any public place to beg or gather alms. Persons found armed at night, and not giving a good account of themselves. Persons having on their persons deleterious drugs or articles of disguise without lawful excuse. Rogues and vagabonds ; persons committing any of the before mentioned offences, having been previously convicted, or idle and disorderly persons. . ARREST. 19 Persons soliciting or gathering alms under false pretences. Persons imposing upon charitable institutions or private individuals by false pretence, with a view to obtain any benefit. Persons exposing obscene books or prints, or exposing their persons. Playing or betting at any unlawful game. Playing or betting in public places at any game of chance. Persons having in their possession, without lawful excuse, pick-lock, crow, jack, or implement of housebreaking. Persons armed with gun, pistol, &c., with a felonious intent. Persons found by night with their faces blackened, or being dressed or otherwise disguised with a feloni­ ous intent. . Persons found by night, without lawful excuse, on premises, or on any vessel in port. Suspected persons or reputed thieves. Persons frequenting public places with intent to commit felony. * Persons fraudulently manufacturing spurious metal, or fraudulently selling as gold metal mixed or adul­ terated. Incorrigible rogues. A private person is also bound to assist an officer requir- Acting in ing his aid to arrest a felon—Reg. v. Caleb Sherlock ; LawairoH ‘ Repts. C. C. R, 20. And when a felony has been actually committed, a private Privat« person may direct an oliicer to arrest the person he supposes direct con- to be guilty, and the constable may do so without any !^£t0 positive knowledge of the circumstances upon which the suspicion is grounded.

Fourthly, arrest upon a hue and cry raised upon a felony Arrest upon committed :—If in a hue and cry a constable concur in the ery.uound pursuit, he has the same powers, protection, and indemnifi­ cation as if acting under a warrant of a magistrate. All others who concur in the pursuit are justified in arresting the pursued whether a constable be present or not, and even though it should ultimately turn out that the pursued is inno­ cent or that no felony has been committed; and where the pursued has taken refuge in a house, the pursuers on hue and cry may break open the door to secure him if admittance breaking 20 ARREST. be refused. If a man wantonly and maliciously raise a hue and cry without cause, lie is liable to fine and imprisonment, and to an action at the suit of the person injured. IYrsom found found com­ Where a statute gives a power to arrest a prisoner mitting an committing an offence, he must be taken in the act, or in olfence. such continuous pursuit, that from the finding until the apprehension the circumstances constitute one transaction— Hawuxty v. Boultbee, 4 C. and P. 350; R v. Curran, 3 C. and P. 307 ; Hoicarth's case, 1 Moo. C. C. 207 ; Downing v. Capd, L. R. 2 C. P. 4G1. And where a statute gives a summary power to apprehend persons without a warrant I'ound offending. <( found offending ” it may be taken as a general rule that it only applies to offences which are apparent to the eye, and not where the guilt or innocence of the supposed offender depends on a variety of circumstances, as for instance a person cannot be said to be “ found offending ” within the meaning of the “ Vagrant Act,” whose offence is alleged to be that, being able to maintain his family, lie wil­ fully refuses to do so, whereby they have become chargeable to a parish, for that offence depends upon the of a variety of circumstances—Ilorley v. Rogers, 2 E. and E. G74, 21) L. J. M. C. 140. < Modo of arrest. But where the prisoner is directed to be forthwith taken before a magistrate, he must be sent by the direct road to either the lock-up till a magistrate can be procured, or direct to the magistrate, and must not be taken to the prosecutor’s house in the first instance—R. v. Curran, 3 C. and P. 397 ; Morris v. Wise, 2 F. and F. 51. • But if he be taken in the night time, he may of course be detained until the morning—Hunt's case, 1 Moo. C. C. 93. And where the statute requires that the offender should be “ immediately ” apprehended, that would seem to mean that the apprehension must be on such quick pursuit as to make it one transaction with the finding—R. v. Curran, 3 C. and K. 391 ; Ilowarth's case, 1 Moo. C. C. 207. Consfaiilc^ asking pri­ Constables, when arresting prisoners, should abstain from soners que3 asking them questions—Reg. v. Berriman, G Cox, C. C. 388 ; tions. Reg. v. Ilassctt, 8 Cox, C C. 511 ; Reg. v. Stokes, 17 Jurist 192 ; jR

CHAPTER V. EXTRADITION. By the 1st Section of the G and 7 Vic., c. 34, as amended oiromiore in by the 1G and 17 Vic., c. 118, provision is made for the cwripinsto* apprehension of offenders charged with any Felony in tho colonies escaping to the United Kingdom, and against whom a warrant shall have been issued by any person havingai,lllciuucl* authority within the colony where the offence has been committed. Such apprehension is to be effected by endorse­ ment of the warrant, in Great Britain, by one of Her Majesty’s principal Secretaries of State, and in Ireland by the Chief Secretary of the Lord Lieutenant. And by the 2nd Section of the same Statute provision is Apprehcn- made for the apprehension of offenders charged with any oirenScra felony in any part of Her Majesty’s dominions, whether or not within the United Kingdom, escaping to any other part of Her Majesty’s dominions not forming part of the United Kingdom,9 o 7 and againsto whom a warrantm shallt have t been issued by any person or persons having lawful authority to issue the same. Such warrant may be endorsed by the “ Chief “Justice or any other Judge of Her Majesty’s Superior Court “ of Law within that other part of Her Majesty’s dominions “ where such person shall be.” Before any person endorses a warrant under these Proof of tho 22 EXTRADITION. flijrmituro of Sections, it must be proved to him upon oatli or by affidavit tho person issuing tho that the seal or signature upon the same is the seal or signa­ •warrant. ture of the person having lawful authority to issue such warrant, whose seal or signature the same purports to he. (Sec. 9). Offender ■when When the person against whom the warrant is issued has arrested to been apprehended, lie should he taken before a justice of the l*o taken before a peace having jurisdiction at the place in which the supposed magistrate. offender is apprehended. Offender The justice, upon such evidence of criminality as would may bo com­ mitted to justify his committal if the offence had been committed gaol until ho can bo within his jurisdiction, should commit the offender to prison, sent back to the place there to remain until he can he sent hack as therein pro­ where tlio vided to that part of Her Majesty's dominions in which he offence was committed. is charged with having committed the offence. And inline- diately upon the committal of such person, information Information of committal thereof in writing under the hand of the committing to be given. magistrate, accompanied by a copy of the warrant, should he given in Great Britain to one of Her Majesty’s principal Secretaries of State, and in Ireland to the Chief Secretary, and in any other part of Her Majesty’s dominions to the Governor or Acting-Governor. In the case of Hugo Levin ger, G Wyatt, Webb, and A’Beckett, 11, who was apprehended in Victoria under a warrant issued by a magistrate of New South Wales, being there charged with murder on hoard a British ship on the high seas, near the island of Pama, in the South Seas, the Supreme Court decided that the above Statute did not authorise the extradition of the accused from Victoria to New South Wales. Certified copies of And by the 4th Section of the same Statute, in every such depositions case copies of the depositions upon which the original may bo given in evidence. warrant was granted, certified under the hand of the person or persons issuing such warrant, and attested upon the oath of the party producing them to he true copies of the original depositions, may he received in evidence of the .criminality of the person so apprehended. (As to the verification of depositions, see In rc Coppin, 2 L. It. Ch. 47.) The follow­ ingO is the form of “ Certificate on Copy of Depositions. Form of cer­ “ I, the undersigned, J. S., Esq., one of Her Majesty’s tificate. '‘justices of the peace in and for the , “ do hereby certify under my hand, pursuant to the “Statute Gth and 7th Vic., c. 34, that the above EXTRADITION. 23 “ writing contains trnc copies oi‘ tlio depositions • “upon which a certain original warrant for tlio “apprehension of A. B. late of , but now “ supposed to bo residing at (

“ j. sr Provision is also made by the 5th Section of tho same Statute for one of Her Majesty’s principal Secretaries of State, indent i<> the the Chief Secretary of the Lord Lieutenant of Ireland tiwi’m-ill-o0 in Great Britain and Ireland, and in the Colonies for the Governor, by warrant under his hand and seal to order the person so apprehended and committed to gaol to be delivered into the custody of some person named in the warrant, for the purpose of being conveyed to the place in which the offence is charged to have been com­ mitted, and, being delivered into the custody of the proper authorities, there to be dealt with in duo course of law. And if the person apprehended shall escape, he may bo retaken in the same manner as persons accused of criino may be retaken upon an escape. By the Gth Section provision is made in the event of tho *fXl,*two person not being conveyed out of the place where he has after been committed within two calendar months after such com- may apply to mittal over and above the time actually required to convoy ^larged, him from the gaol to which he was committed by the readiest way out of the colony in which lie is in custody, that any judge of the Supreme Court, upon application made to him on behalf of the person so committed, and upon proof to him of reasonable notice of such application having been given to the Governor of the colony, shall order the person so committed to be discharged out of custody, unless sufficient cause shall be shown why such discharge ought not to be ordered. Besides the above enactments several conventions havo been from time to time made between the British Govern­ ment and Foreign Powers for the extradition of criminals. One with France carried into effect by the G and 7 Vic., French eon- c. 75, and 8 and 9 Vic., c. 120. # ' Another with the United States of America, carried into effect by the G and 7 Vic., c. 7G, and the 8 and 9 Vic., c. 120. C ” c Another with Denmark, carried into effect by the 25 and Denmark 2G Vic. c. 70. 21 BREAKING OPEN DOORS. TrUh-sian And another with Prussia, made in 18G1, but not carried convention. into effect by Act of Parliament. Amendment The Statute 29 and GO Vic., c. 121, amends the law relating of laws re­ lation to to treaties of extradition, as to the authentication of warrants treaties of extnulitioil. of arrest issued by, and copies of depositions taken by or before a judge or competent magistrate in any foreign State with which Her Majesty may have entered into a treaty for the extradition of fugitive offenders, or persons accused of crime.

CHAPTER VI. BREAKING OPEN DOORS.—SEARCHING AND HANDCUFFING PRISONERS. Breaking The breaking of an outer door is in general so violent, open doors obnoxious, and dangerous a proceeding that it should be adopted only in extreme cases, where an immediate arrest is requisite ; and therefore no one can justify breaking open another’s door to make an arrest unless he first signify to those in the house the cause of his coming, and request them to give him admittance—2 Haw c. 11, sec. 1; Lannoch v. Broivn, 2 B. and Aid. 592. No precise form of words is necessary. Such request is undoubtedly necessary in all cases where the warrant is for a misdemeanor—Lannoch v. Broivn, 2 B. and Aid. 592 ; and see Burddt v. Abbott, 11 East 1G3. At common law, any person (whether a peace officer or not) may without warrant, in the case of any felony committed in his presence, justify breaking open doors in pursuit of the offender, and may arrest any one for felony on probable suspicion. But there is this distinction between the case of the peace officer and that of a private person, that the former is pro­ tected though it should turn out that no such crime as sup­ posed had been in fact committed by any one (provided he had reasonable ground for suspecting the person arrested), but the latter is not protected unless he can prove an actual commis­ sion of the crime by some one, as well as a reasonable ground for suspecting the particular person—Adams v. Moore, 2 Selwyn, N. P. 11 Ed. 931 ; Mure v. Raye, 1 Taunt 31; Stoneham v. Elliott, G T. R. 315 ; Halcv. Burton, 3 A. and M. 31G; Beckiuith v, Philby, G B. and C. G35 ; SEARCHING AND HANDCUFFING PRISONERS. 25

Allen v. Wright, 8 C. and P. 522 ; Matthews v. Biddulph, 3 M. and G. 51)0 ; Williams v. Crosswcll, 2 C. and K. 422. A private person cannot, on mere suspicion, justify break­ ing open doors, which a constable, though acting without a warrant, is competent to do—Smith v. Shirley, 3 C. B. 142; but lie may break and enter a person's house and imprison him, to prevent him from murdering his wife who cries out for assistance—Ifandcock v. Baker, 2 B. and P. 200. An accused person, when in custody, may so conduct him- pt‘:lTvMn^ self by reason of the violence of his language or conduct ’ that a constable may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief or commit a breach of the peace, but no general rule can be applied to all such cases. Even when a man is confined for being drunk and disorderly, it is not always necessary that lie should be searched. The searching of each person must depend upon all the circumstances of his particular case—Leigh v. Cole, 0 Cox, C. C. 329. ^ ... A constable is bound to treat a prisoner while in his nand-cufr- custody with no greater severity than is necessary to preventins* his escape ; if therefore he handcuff a prisoner where it is not necessary in order to prevent his escape, or where he has not attempted to escape, the constable is a trespasser— Wright v. Court, 4 B. and C. 59G. With respect to handcuffing, the law undoubtedly is that constables are not only justified in taking, but arc bound to take, all reasonable requisite measures lor preventing tho escape of those persons they have in custody ; but what those reasonable measures are must depend entirely upon the circumstances, and may vary with the temper and conduct of the person in custody, tho nature of the charge, the facilities for escape and recapture, and the infinite variety of facts of each particular case. There is no general rule that every one conveyed before the magistrates is to be handcuffed. Any such rule is unjustifiable in law. In every case of the kind the question for the jury is, whether, looking at all the circumstances of the case, the constable used reasonable precautions or used unnecessary measures to secure the safe custody of his pri­ soner—Leigh v. Cole, G Cox, C. C. 329 ; Broughton v. Jack­ son, 18 Q. B. 378. 26 SEIZING PROPERTY OF PERSONS ARRESTED.

CHAPTER VII.

SEIZING PROPERTY OF PERSONS ARRESTED. seizin; pro- it js the coiniiion pi'acfcico for a constable, upon an'osting bund arrested a prisoner, to seize anything found on his person—1 Dalton, J. R, Cap. 110, new ed., c. 108, 538. . With respect to sucli practice, Patterson, J., in Rex v. ODonnell, 7 C. and R 138, says, “It is not right that “a mans money should he taken from him unless it is con- “ nected in some way with the property stolen. If it is “ connected with the property stolen, it is quite proper it “ should be taken, but unless it is, it is not a fair thing to “ deprive a prisoner of his money, which lie might use for his “ defence.” # The right to seize the property of persons charged with felony, and the right of constables apprehending such persons to take possession of their property, either with a view to the protection of the property in the event of its ultimate forfeiture on conviction, or in the event of the same being found in some way connected with the charge from its being part of the property stolen or the proceeds of it, or otherwise, has been controverted. Lord Halo says: “ It seemeth clear that at the common law, if a man had “ committed felony or treason, or though possibly he had com- “ niitted none, yet if he had been indicted, the sheriff, coroner, “ or other officer, could not seize and carry av:ay the goods “ of the offender or party accused. Again, he could not in “that case have removed the goods out of the custody of tho “offender or party accused, and deliver them over to the con- “ stables or to the Villata to answer for them. “ But if the party were indicted, the sheriff or other officer “might make a simple seizure of them only to inven- “ tory and appraise them, and leave them to the custody of “ the servant or bailiff of the party indicted, in case he would “ give security against their being embezzled, or in default “ thereof he might deliver to the constable or vill. to bo “ answerable for them, but yet so that the party accused and “ his family have suflicient out of them for their livelihood “ and maintenance. And possibly the same law was, though “ lie were not indicted, but de jacto had committed a felony, “ but with this difference, if he had been indicted this kind of “ seizure might have been made whether he committed the SEIZING PROPERTY OF PERSONS ARRESTED. 27 “ felony or not. But in case there were no indictment, then “ it is at the peril of him that seizeth if he committed not “ the felony.” The Statute 1 Richd. III., c. 3, enacts that, under the penalty of twice the value, no person shall take or seize the goods of any person arrested or imprisoned for suspicion of felony before he be convicted or attainted, or before the goods be otherwise forfeited. “ Mr. Staundfordc thinks this is but an affirmance of “ the common law only that it gives a penalty, but it “ seems to be somewhat more; for this prohibits tho “ seizure of the goods of a party imprisoned, though he “ were also indicted but not yet convicted, where unques- “ tionably the common law allowed such a seizure if the “ party or his friends did not secure the forthcoming of “ the goods when the party was indicted. But upon this “ statute three things are considerable :—1. As to persons at “ large, it seems to me (says he) that if they fly not there can “ be no seizure at all made whether they are indicted or not, “ for the statute did not intend a greater privilege to a party “ imprisoned than to him that is at large. 2. That if lie be “ at large and fly for it, yet his goods cannot be seized and “ removed whether lie be indicted or not indicted. 3. That if “ he be indicted and at large yet the goods cannot be removed, “ but only viewed, appraised, and inventoried in the house or “ place where they lie. “ And yet I know not how it comes to pass (says lie), the “ use of seizing the goods of persons accused of felony, though “ imprisoned or not imprisoned, hath so far obtained, notwitli- “ standing this statute, that it passeth for law and common “ practice, as well by constables, sheriffs, and others the King’s “ officers, as by lords of franchises, that there is nothing more “ usual ”—4 Coke’s Itepts., 480. No mention is made in most of the text books of a statute supposed to have been passed in the reign of Edward II., and cited as the statute “da Catallis Fdo- niicm” and which does not appear to have been repealed. It enacted— “ That no man arrested for felony shall be disseized of his “ goods until conviction of the same felony, but that as soon “ as he is taken they may be inspected and inventoried on “ view (per visum) of the judges and sheriffs and other the “ King’s bailiffs and lawful men, and be safely kept by sureties “ of the accused, such sureties to be responsible for the goods “ or their value if the party be convicted of the felony, but 28 SEARCH WARRANTS. “ subject to his right to maintenance and necessaries for “ himself and his family in the meantime.” The right to inspect and take an inventory before convic­ tion is not abrogated by the statute 3 Richard III., and this statute of Edward II. must have been the foundation of such right—See Ramsay v. Mayne, Sup. Ct., N. S. Wales, 11th Oct., 1851. Restoring a Where a prisoner’s property lias been taken from him, TtrLsoner’a property unless there is a reasonable ground for supposing that it is taken from part or produce of the property stolen, it is the practice at him. criminal courts in England to order it to be restored—See Rex v. Barnett, 3 C. and P. 600 ; Rex v. Jones, 6 C. and P. 343 ; Rex v. O'Donnell, 7 C. and P. 138 ; Rex v. Kinsey, 7 C. and P. 447; Rex v. Burgiss, 7 C. and P. 488 ; Rex v. Rooney and others, 7 C. and P. 515; Rex v. Price and others, 6 Con 117; Frost’s case, 9 C. and P. 129; Rex v. Bass, 2 C. and K. 822. Upon an indictment against a receiver, the court will not order money found in the possession of tho principal to be given up, although it appears to belong to the applicant and to be necessary for his defence, and although there is no evidence to show that it is any part of the pro­ ceeds of the robbery—Rex v. Headley, 1 Cox 42.

CHAPTER VIII.

SEARCH WARRANTS. Searcli war­ rants for A magistrate may not only issue a warrant to apprehend stolen pro­ a person suspected of felony, but he may, upon complaint perty. made upon oath that there is reason to suspect that stolen goods are knowingly concealed in any dwelling-house or other place (22 Geo. II., c. 58, sec. 2) issue his warrant (form thereof Statute 267, 2nd schedule, 67) to search in the day time such person’s premises for goods alleged to be stolen. Rearch And by the Statute 233, Section 401, if any credible wariant for property in witness shall on oath prove before any magistrate a reason­ respect of which an able cause to suspect that any person has in his possession often co pun­ or on his premises, any property whatsoever in respect to ishable under which any offence punishable under that Statute shall have Statute £33 li.es been been committed, the magistrate may grant a warrant to committed. search for such property, as in the case of stolen goods, and SEAIMJII WARRANTS. 29 any person to whom such property shall bo offered for sale, pledge, or delivery, is required (if in his power) to appre­ hend and carry before a magistrate the person offering tho same, together with such property. Search war­ Magistrates may also, upon reasonable cause assigned upon rant.* for oatli by any person, issue warrants for searching in the day gunpowder. time any premises or vessel in which it is suspected any engine, implement, or tiling, or any gunpowder or other explosive, dangerous, or noxious substance is suspected to bo made, kept, or carried for the purposes of being used in committing any of the felonies in the first or third part of the Statute 233, Section 407. Search war­ And magistrates may also, upon it being made to appear rant* for ma­ by information on oath that there is reasonable cause to terial?, Are. suspect any person has in his custody or possession, without for forgery. lawful authority, any note, bank bill, or any frame, mould, or implement for making paper in imitation of paper of bank notes, or other materials, Ac., for forgery, grant a warrant to search for the same—See Statute 233, Sec. 408. Searcli Magistrates may also grant warrants under the same warrants for circumstances to search for forged or counterfeit stamps—Sec forged Statute 355, Sec. 17. btani])*. Manner of On executing search warrants, great caution should be executing observed, and when a warrant is issued to search for goods Bearch war­ alleged to have been stolen, the constable to whom the rant*. warrant is directed should be accompanied to the pre­ mises by the 0}vner of the property, or some other person who is enabled to swear to and point out the goods. If tho premises arc closed, and the constable is denied admission after demand and having disclosed his authority and the object of his visit, they may be forced open by him. In making the search, care must be observed that no goods other than those mentioned in the warrant, or such as have been actually stolen, be seized —Crozier v. Candy and otlccrs, G B. and (J. 232. Where officers went with a search warrant, and at the desire of the party gave it to him for his perusal, and he would not return it, it was held that they had a right to take it from him, and even to coerce his person to obtain the possession of it, provided they used no more violence than was necessary—11. v. Milton, 3 C. and P. 31. SO SPECIAL CONSTABLES.

CHAPTER IX. SPECIAL CONSTABLES. Appoint­ By the Statute 28 Vic., No. 247, sec. IS, it is provided, ment of special upon its being made to appear to a magistrate on the constables. oath of one credible witness that a tumult, riot, or felony has taken place or may be expected, and upon the magistrate being of opinion that the ordinary constables or officers appointed for preserving the peace are insufficient to protect persons and property, or when, without such oath or evidence, any two magistrates shall be of opinion that the ordinary police are insufficient for the prevention and protection as aforesaid, or for the apprehension of any offender, sucli magistrate or magistrates may nominate and appoint by precept in writing, under his or their hand or hands, so many fit and competent persons, not being legally exempt from serving the ofiicc of constable, as he or they shall think fit, to act as special constables for such time and in such manner as to the magistrate or magistrates respec­ tively shall seem fit; and the magistrate or any of the magistrates who shall appoint special constables, or any magistrate having jurisdiction within the borough, town, or district, may administer to every person so appointed an oath in the words or to the effect following— Form of oath “ I (A. B.) do swear that I will well and truly serve our to Lo taken by sj>eei;il “ Sovereign Lady the Queen in the office of special constable. “ constable for the (city, borough, town, or distinct) “ of , without favour or affection, malice or “ ill-will, and I will to the best of my power cause “ the peace to be kept and preserved, and prevent “ all offences against the persons and property of “ Her Majesty’s subjects ; and that, while I con- “ tinue to hold the said office, I will to the best of “ my skill and knowledge discharge all the duties “ thereof faithfully according to law—So help me, - God." The appointment of special constables must be in writing. The Form of Precept may be as follows— Trecept. “ Victoria, to wit: We, the undersigned, two of Her “ Majesty’s justices of the peace for the Colony of “ Victoria, acting for the city, borough, town, or “ district of , in the said colony, do hereby SPECIAL CONSTABLES. 31 “ nominate and appoint (insert the names), to act “ as special constables for tlie city, borough, town, “ or district of , until the day of , “ A.D. 187 (or they receive notice that their “ services arc suspended or determined), according “ to tlio tenor of tlio oath this day taken and “ subscribed by them. “Given under our hands tlio day of , 187 , “at , in the colony of Victoria. “ Your powers, ire., as special constables extend not “ only for the city, borough, town, or district of “ , for which you are appointed, but througli- “ out the entire city, borough, town, or district of “ or colony of Victoria.” (Insert tho entire “jurisdiction of the magistrates making the appointment)—Act 217, see. 1G. The only condition precedent to one magistrate acting under this statute is, that one credible witness shall state appointing, upon oath before him that a tumult, riot, or felony has taken place or may be expected. Those persons appointed must serve. They will bo liable ^,0sl^to to a fine not exceeding £5 for not attending when summoned eerva ° to take the oath, or not taking it, or refusing to serve, or disobeying any lawful orders and directions given to them for the performance of the duties of their oflico—Sec. Ik All persons willing to act as special constables shall be J^Jnmybo capable of being appointed and acting, and may be appointed »i>i>oinu>d. and act notwithstanding they may not be resident in tho city, borough, town, or district, or in the neighbourhood thereof; and every person appointed and acting as a special constable under this section has the same powers, and is entitled to and enjoys the same privileges and benefits, and is subject to all the same duties and liabilities as special constables under the other provisions of the Act—Sec. 15. Any special constable not known to bo such should, on apprehending an offender, state himself to be a special con­ stable, or that he arrests in the name of the Queen, or as tlio case may bo, and for what cause, or if he show his proper staff of office it is sufficient—Arch. J. P., Vol. 1, Arrest. At the close of the service of a special constable, he must J{^£,vcnp give up any staff, weapon, or other article which may have been supplied to him, under pain of a fine not exceeding £5 —Sec. 20. A very important decision was given a few years back as ^iodofacr' 32 SPECIAL CONSTABLES. to tho duration of powers of special constables, under the 1 and 2 William IV., c. 41, sec. 1, in which Mr. Justice Coleridge held that a person once appointed special constable will retain all his authority as constable until his services are suspended or determined—Reg. v. Porter, 9 Car and P. 77S. This is according to the 19th section of the Statute 247, by which the magistrates who appointed the special con­ stables, or the magistrates acting for the city, borough, town, or district, within which such special constables shall have been called out, arc empowered at a special session to be held for that purpose, to suspend or determine the services of all or such of the special constables so called out as to the magistrates respectively shall seem meet, notice of which suspension or determination is to be given to the Chief Secretary of Victoria. To fulfil the requirements of this enactment, a special session must be held for the purpose— see Reg. v. Best, 1G L. J., M. C. 102; and care should be taken that this is done, unless the appointments are for a limited time, at the expiration of which their powers will of course cease. In the case just referred to, a person had been appointed as a special constable for the county of Gloucester in 1832. He was acting as a private watchman. A man was given into his custody, charged with robbing a garden. While he was taking him to the station, he was attacked by the pri­ soner and was killed. The appointment was put in, and it contained a clause that his services were to continue until suspended or determined. It was objected, and reasonably enough, that it never could have been intended “ that once “ a constable always a constable ” should be the effect of the statute. But Mr. Justice Coleridge held that the clear effect of the statute was to clothe him with powers until the expiration of the time specified in the appointment, and that no suspension or determination having taken place he was, in point of law, still a constable in 1840. This may startle at first, but there seems no reason to doubt the correctness of the decision; and it is presumed the omission of the clause, “ until suspension or determination,” would make no difference, as that must be implied in every appointment where no time is limited. It further follows from this deci­ sion, that unless the requisite steps are taken, all special constables will continue for an indefinite period liable to be called upon to act upon any occasion that may be deemed right, for if they preserve their privileges they must also be subject to the duties of their position. SUMMARY JURISDICTION OF MAGISTRATES. S3

Rl; htfl and Being clothed with the rights of constables as existing in duties. ]S5o, the specials may do all that a common law constable can. As a general rule, however, it will bo well for them to confine themselves to obeying the orders and directions of the regular police force, or of some appointed chief. Any two magistrates assembled in Petty Sessions may Allowance to. order reasonable allowance to the special constables for their trouble, loss of time, and expenses, as also such expenses as may have been incurred in providing arms, staves, weapons, or other necessary articles; such order to be made upon the Chief Secretary of Victoria, who is to procure proper war­ rants for the payment of the same out of the public l’cvcnuo appropriated for the purpose. The Governor in Council may disallow any such order as ho may consider excessive— Sec. 21. Duty of As to the powers and duties of magistrates in case of riots inriid.-'tnitcs and unlawful assemblies, see R. v. Riiuiey, 3 13. and Ad. 1)17; in i-tso of riots and R. v. Laiiffford, 1 Carr, and Marsh, C02 ; R. v. Furzey, 1) C. unlawful and P. 431, which show that constables and even private liMruunliliort. individuals are justified in using force to disperse an unlaw­ ful assembly—R. v. Neale, 9 C. and P. 431.

CHAPTER X.

SUMMARY JURISDICTION OF MAGISTRATES OVER CERTAIN OFFENCES. The jurisdiction now conferred upon magistrates enables In larceny, them in certain cases to dispose summarily of tho felonious . . offence of larceny. By Statute 233, sec. GO, it is provided : Where any per­ son is charged before any magistrates in Petty Sessions with inianvnyup having committed, or attempted to commit, or with having Sixteen?10 °f been an aider or .abettor, councillor or procurer, in the com­ mission of any offence then or thereafter to be by the law deemed or declared to be simple larceny, or punishable as simple larceny, if the age of such person shall not in tbc opinion of the magistrates exceed sixteen years, or where any person shall be charged* before any magistrates as afore­ said with having committed simple larceny, and the value of the property alleged to have been stolen does not in the ’ judgment of such justices exceed the sum of £2, or with having attempted to commit larceny from the person, or simple larceny; in such cases the magistrates may proceed D 31 SUMMARY JURISDICTION OF MAGISTRATES to hear and detormino tho charge in a summary way ; and if tho person charged shall confess tho same, or if tho justices after hearing the whole case for the prosecution and for the defence, shall find the charge to he proved, the justices may Punishment, convict such person, and commit him to prison for any period not exceeding three calendar months; or in cases where the offenders age, in the opinion of the magistrates, does not exceed sixteen years, they may either in their discretion commit him or adjudge him to forfeit any sum not excced- £3; and if they deem tho offence not to he proved, they shall dismiss tho charge, with or without requiring sureties for his future good behaviour, and shall furnish him with a certificate stating such dismissal—see form, 2nd schedule. Option nsto There is, however, a proviso that if the person charged do tnaibjjury. no{. C011iSen^ or when the age of the accused shall not in tho opinion of tho magistrates exceed sixteen years, he shall not consent; or his parent or guardian shall object to the case being summarily disposed of under tho provision of the Act; or if it shall appear that the charge, from any other circumstances, should bo proceeded on by information as an indictablo offence rather than be disposed of summarily, the magistrates shall deal with tho case as if the Act had not been passed. They are also authorised to dismiss the per­ sons charged without proceeding to a conviction, with or without sureties for his future good behaviour, if on tho hearing there appear to bo circumstances in tho caso which render it inexpedient to inflict any punishment. Mode of pro- By the G7th section of the same Statute tho mode of pro- iTi'uniL} cccding by magistrates in dealing with persons charged Ivithc-^S under the previous section is pointed out, and is as follows : Myumariiy. After the examination of all the witnesses for the prosecu-. tion has been completed, and before calling upon the accused for any statement he may wish to make, one of tho magis­ trates states to the accused the substanco of the charge against him, and says to him, “ Do you consent that the “ charge against you shall bo tried by us, or do you desire “ that it shall bo sent for trial by a jury ? ” MapbtratcT If the accused consent, or (in cases in which the parent d’nmdbto or guardian is entitled to object as aforesaid) if the parent Avntjn- or guardian being present shall not object, the magistrates shall reduce the charge into writing, and read the same to tho accused, and then ask him whether he is guilty or not of riea- the charge ? If he plead “ guilty,5’ they consider the punish­ ment; if he plead “ not guilty,” they hear his defence and consider the judgment. OVER CERTAIN OFFENCES. 35 If tho accused, or his parent do object, tho summary if nmisod jurisdiction cannot bo applied ; but tho magistrate mustobJoct* caution him in tho usual form directed for an indictable olFencc, if the evidence bo sullicicnt to send tho accused for trial. By section G8 of tho same Statute, a further provision is vicnct made, that where any person is charged at Petty Sessions with simple larceny, and tho ago of tho accused in tho opinion of the magistrates exceeds sixteen years, or tho property alleged to have been stolen exceeds £2 ; or with stealing from the person, or larceny as a clerk or servant, and the evidence adduced by tho prosecutor appears suffi­ cient to put the person charged on his trial, and tho case to bo one which may bo properly disposed of in a summary way and adequately punished under this Act, such person may bo asked after the charge has been reduced to writing, whether lie is guilty or not thereof; and if lie shall say that lie is guilty, the magistrates may enter such plea on tlio proceedings, and may thereupon commit the offender to prison (with or without hard labour, section 302) for any term not exceeding twelve calendar months. But tho magistrates, before they ask tho accused whether he is guilty or not, shall explain to him that he is not obliged to plead or answer before them at all; but that if ho do not, he will be committed for trial in tho usual course. In cases of convictions under the foregoing sections, Ryotutinn magistrates may order the restitution of the property stolen by in those cases in which the Court before whom tho person convicted would have been tried but for the Act, may bo by law authorised to order restitution—Statute 233, section 400. . Moreover tho same Statute 233 confers upon magistrates jurisdiction to dispose summarily of tho following offences : if Sec. 38. Common assaults. Sun other Sec. 39. Aggravated assaults on children under fourteen oircI1(X*- , years of ago and females ; but if tho assault is accompanied by an to commit felony, or is a fit subject for a prosecution by information, the magistrates shall abstain adjudicating and commit for trial. Sec. 73. Taking, using, or working any persons cattle or goat without the consent of the owner; but if the magistrate finds the offence ought to be dealt with as felony, he may commit for trial. J) 2 3G SUM MAH V JURISDICTION OF MAGISTRATES

Sec. 79. Suspected persons in possession of venison, Szc.., and not satisfactorily accounting for it. Sec. 80. Setting snares or engines for deer, or destroying fences where they are kept. Sec. 81. Killing hares and rabbits at night. Sec. 82. Stealing dogs. Sec. 83. Possession of stolen dogs or the skins thereof. Sec. 85. Stealing birds or beasts ordinarily kept in con­ finement, and not the subjects of larceny. Sec. 8G. Possession of stolen birds or the plumage thereof, or dogs or any such beast or the skin thereof, or any such animal or any part thereof. Sec. 87. Killing house doves or pigeons. Sec. 88. Taking fish in any water situate in land adjoin­ ing or belonging to the dwelling-house of any person being the owner of such water or having a right of fishing therein, or taking fish in any water private property or in which there is a private right of fishery. Sec. 98. Stealing trees,

first offence only, receivers knowing the same to be unlaw­ fully come by are liable to the like punishment, on summary conviction, as the principal oilenders—Sec. 280. And abettors in offences punishable on summary con vie- am tor* in tion are liable to the same punishment as the principal ImnMwMo offenders—Sec. 284. In cases where any imprisonment may be awarded for any offence indictable under sections G2 to 207, ami sections ' 285 and 2S6 of the same Statute 288, the Court may in its ^Cur discretion sentence the offender, if he be a male under the age of sixteen }Tears, in addition to imprisonment, to be privately whipped in such manner and as often, not exceed­ ing three times, as the Court shall direct, and the number of strokes at each whipping and the instrument with which they shall be inflicted shall be specified by the Court in the sentence—Sec. 295. By the 70th section of the same Statute, conviction byr,m*f magistrates in Petty Sessions under the GO, 67, 08, and 09 i„ sections, shall have the same effect as a conviction upon an witaincascx information for the same offence as for an indictable offence would have had. In all cases of summary convictions before magistrates, they may in their discretion direct the offender to be imprisoned or imprisoned and kept to hard labour in any gaol—Sec. 802. And for offences under sections 08 to 207 of the same MnSistrau* Statute, other than the 00, 07, G8, 09, 70, and 71 sections, where it shall be the first conviction, the magistrates may discharge the offender from his conviction upon his making ti.mon amends to the party aggrieved for damages and costs, or umh-u-k either of them, as shall be ascertained by the magistrates— Sec. 803. And in cases under sections G8 to 207 of the same Statute, Recovery If the penalties imposed be not paid, either immediately after conviction or within such time as the magistrates shall appoint, they (unless where otherwise specially directed) may commit the offender to be imprisoned only, or to be impri­ soned and kept to hard labour, in the discretion of the magis­ trate, for any term not exceeding two months, if the penalty and costs do not exceed £5 ; and for any term not (exceed­ ing four months, when the penalty and costs shall not exceed P10, and for any term not exceeding six months, in any other case. The committal to be determined on pay­ ment of the amount and costs—Sec. 307. And by the 19th section of the Statute No. 205, called < ;•. 38 EXAMINATION AND COMMITMENT. in cum* of “Tho Polico Offences Statute, 1805,” any magistrate* is cin- etoicn cattio. p0wcrc(]} jn any caso where cattle (which by the words of interpretation in the statute mean and include horses, mares, geldings, colts, fillies, asses, mules, bulls, cows, oxen, heifers, steers, calves, sheep, rams, ewes, lambs, goats, and swine) have been stolen within the period of one year preceding, upon complaint on oath, to issue a summons to the persons in whose possession the cattle are, or a warrant for tho apprehension of such person, as also a warrant to any con­ stable to seize the cattle until the complaint is disposed of; and upon hearing the complaint, to determine to whom the cattle belong, and adjudge him to be the owner, and issue a warrant to any constable to seize the cattle wheresoever found, and restore them to tho person adjudged to bo tho owner.

CHAPTER XL EXAMINATION AND COMMITMENT. Constable to It is tho duty of a constable, within a reasonablo timo before a alter arresting a person accused by any ot the means magistrate. mcntioned, to take him before a magistrate and have the witnesses summoned or give them notice to attend at the Police Court. course to bo If the accused has only been summoned, and lie do not accused doc3 appear, his name should be called in the precincts of the whun^um- court so that no doubt should exist of his having failed to moned. obey the summons. If the accused fail to attend, the magis­ trate will examine the constable on oath ns to the service of Warrant, the summons, or grant a warrant of apprehension, in which latter case an information in writing on oath is necessary. If it appear the summons has been duly served, the magis­ trate may issue his warrant of apprehension without taking any further information of any kind. A magistrate cannot, without the personal attendance of tho accused, go into tho case. No objection is allowed to any information, complaint, tion or com* warrant, or summons, for any defect therein in substance or allowed^0*1 or for any variance between it and the evidence adduced on the part of the prosecution in the examination of the witnesses—Sec. G9. cfwitneT3 ^ W^ness cannot, upon being served with a summons or without" subpoena, refuse to attend until his expenses arc paid—Hex expense*. EXAMINATION AND COMMITMENT. 89

v. James, 1 C. and P. 822. A magistrate 1ms no power to compel the attendance of witnesses for a person accused. A magistrate before whom the accused is brought is bound immediately to examine the circumstances of the crime witno^o*. alleged, in tho manner directed by the G7 and following sections of the Statute 267. He is to take in presence of the prisoner (who is at liberty to put questions to any witness produced against him) the statement, on oath or affirmation, of those who know the facts of the case, and put the same into writing—sec. 79. Tho usual form of such oath is, witnwicath “ You shall true answer make to all such questions as shall be demanded of you, So help you God.” Magistrates should examine and take the depositions of all such persons as maybe able to throw any material light imuim.g of upon the transaction under investigation. Such depositions tll0C,u'0, should be taken down from the statement of the witnesses in the presence of the accused and the magistrate—llcy. v. rn-.-nce Christopher, 1 Den. C. C. 530—as the accused has a right ana’Vn’Sa­ to hear the evidence given step by step, and so as to have trut0’ time to consider what questions to put to the witness—llcy. v. Day, G Cox, C. C. 55. The accused should have sufficient opportunity for cross- examining each witness—lity/. v. IIend y, 4 Cox, (J. C. 213—• coOi witne-u and heaving him give his answers, and seeing his manner of answering—lley. v. Bccston, Dears. C. C. 405 ; 11. v. Smith, a,)iUU‘ril'^ It. and It. 339. . Magistrates should ask the accused at the conclusion of mgh.mMbo the examination of each witness whether he wishes to put cn. ^ux.-i. any questions to the witness, and any answers made to UV/lll- questions put by the accused should be accurately written W}to,.M an down at the foot of the depositions already taken, if they n'^jiuuM should appear to have any bearing upon the charge. Such down, additional evidence should be distinguished from tho exami­ nation in chief. In taking the evidence, care should be observed to record it as far as possible in the very words in which it is .uplu'ajyrnj. delivered, the witness speaking ns much as possible in tho first person, repeating the words used by himself and others, not merely stating results. It is of importance it should be fully and accurately taken, in order that the witnesses may neither be liable to the imputation of having made a different statement in Court from what they made before the magis­ trate, nor of having stated tacts in Court which were not mentioned before the magistrate. It is not, however, necessary to take down all that a witness may state, 40 EXAMINATION AND COMMITMENT. since that which is clearly irrelevant or not admissible as evidence ought not to be admitted. If, however, any doubt should arise as to whether certain evidence be admis­ sible or not, the better plan will be to take it, and leave to another tribunal to decide whether it shall be used or not. towitn?iv°r r^10 evi^elice such witness is then read over to him, 1 ’ and the witness and the magistrate sign it—Sec. 70. After the examination of all the witnesses on the part of positions to the prosecutor has been completed, the magistrate is bound accused. rc.l(j or cause pe rcac[ £0 the accused the depositions of the witnesses taken against him, otherwise any statement which he may make in answer to the caution cannot be given in evidence against him. Caution. The magistrate, and not the clerk of the Bench, then addresses the accused in words to this effect:—“ Having “ heard the evidence, do you wish to say anything in “answer to the charge? You are not obliged unless “you desire to do so. You have nothing to hope from “ any promise of favour, and nothing to fear from any “ threat which may have been held out to you to induce “ you to make any admission or confession of your guilt; “ but whatever you say will be taken down in writing, and “ may be given in evidence against you upon your trial.” Whatever the accused says in answer must be taken down in writing, and read over to him, and signed by the justice or justices—Section 82. Statement of The statement so made may be used as evidence at the boused may trial of tho accused, provided there has been no inducement whenSnoim ou^ t° him—Reg. v. Tayloi', 8 C. and P. 733. inducement If after caution lie think proper, either on his own motion holdout. or reply to fair and open questions put to him by J.uoluonby7 the magistrate—Here v. Ellis, R. and M. 432 ; Rex v. Jones, magistrate. 7 C. and P. 239 ; Rex v. Rees, 7 C. and P. 508 ; Rex v. Bart­ lett, 7 C. and P.832 ; 3 Russ. 4 Ed. 405—to make any state­ ments, it is the duty of the magistrate to allow" him to do To bo taken so, and the magistrate should direct such statements to be clown and read over. taken down in the form pointed out in the schedule 21 to Statute 2G7. The statement should be read over to the accused, and he should be invited to sign it; but wdiether he sign it or not, the magistrate should sign it as having Should not been taken before him. Such statement should not be made bo on oath. on oath, or appear on the face of it to have been so taken. Prisoner’s If the accused, on being asked, washes to examine any witiie^iios. 'witnesses in his defence, the magistrate should take the evidence of such witnesses. Their depositions when taken EXAMINATION AND COMMITMENT. 11 should ho read over to and signed by thorn, and transmitted with those for the prosecution to the proper ollieer. Such rin.nnj; witnesses should also be bound over by recognizances to tlu'm tJ'cr* appear at the trial. When such witnesses are examined, whether the evidence I,rntI7il;‘ so adduced be true or false, it is very important that it "vain'inli- should be received and taken down. If it bo true, it may be so clear, positive, and distinct as to explain or contradict the evidence adduced in support of the charge in such a manner as completely to satisfy the magistrates that there is no sutiicient ground for judicial inquiry into the guilt of the accused, in which case he ought to be discharged ; or the evidence adduced on behalf of the accused may, in the opinion of the magistrates, weaken the presumption of liis guilt, but there may notwithstanding appear to them to be sufficient ground for judicial inquiry into the guilt of the accused, in which case the magistrates should admit tho prisoner to bail; and even if the evidence so adduced should not produce either of these results, still it is important for the sake of the prisoner that his witnesses should be examined and their depositions returned, as he is thereby freed from the suggestion often made at the trial, that the case endeavoured to be proved before the jury had been con­ cocted since the examination before the magistrate ; and if, as has been suggested (See Reporter's Note, llcy. v. Fuller, 7 C. and R. 270), the depositions of a witness examined on behalf of a prisoner before the magistrate would be admissible in evidence for the prisoner on liis trial in case of the death of such witness, it is but reasonable that the prisoner should have the depositions of his witnesses taken, in order to be used in case of such an event. On the other hand, if the evidence adduced be false, it is essential for the ends of justice that it should be heard and taken down, in order that the prosecutor may have the means before the trial of investigating the facts deposed to, and the opportunity of . testing the statements of the witnesses by comparing those made on the trial with those made before the magistrate ; and, moreover, the taking the depositions would serve as a check upon the prisoner against setting up a different defence on the trial, and upon the witnesses against improving their tale between the time of their examination before the magis­ trate and the trial. If the -witnesses examined for the prisoner merely explain what has been proved in support of the charge and are be­ lieved, they will have made out a defence on behalf of the "itnc 42 EXAMINATION AND COMMITMENT. accused, and there will bo no necessity for any further pro­ ceedings. But if the witnesses so called contradict those for the prosecution in material points, then the ease will bo properly sent to a jury to ascertain the truth of the state­ ments of each party. Per Lord Denman, 2 C. and K., 845. ^ # Exclusion of The place where the examinations are taken is not an from*piaco of open Court, and the magistrate may, in his discretion, examination jf ]ie think lit, order that no one shall have access to it —Sec. 83. Remanding A magistrate has the power of remanding the accused for a prisoner. aily reasonable time not exceeding eight clear days—Sec. 88. But he may order him to be brought before him or any other justice at any time before the expiration of the time for which he is remanded. (For form of such order ' see Oke’s Formulist, 4GG.) Instead of detaining the accused in custody during such remand, the magistrate may admit him to bail (See. 89), and if when bailed he does not ap­ pear, the magistrate may issue a warrant for his appearance as if no previous hearing of the case had taken place. When a prf- When an accused has been remanded for further examina- brmviitTip tion, then, on his again being brought up, the proceedings for further sl-10Uld Fe commenced by reading over all the depositions and tho former examinations holoro taken, and the additional evidence is should bo then gone into vritli the same formalities, read over. If^vlieii all the evidence against the accused shall have been comnhthii of heard, the magistrate is of opinion it is not sufficient to a prisoner. justify a commitment, ho forthwith orders the accused to bo discharged. But if the magistrate shall be of the opposite opinion, or if the evidence given raise “ a strong or probable presumption of guilt,” he shall either commit the accused to prison to take his trial at the next Criminal Sessions, or General Sessions, or admit him to bail (as to which see here­ after.)—Sec. 9G. . This section fully explains the grounds upon which a magistrate should act in deciding to commit for trial. In Cox v. CohrkhjCy 1 B. and C. 50, Mr. Justice Bay ley ob­ serves : “I think a magistrate is clearly bound, in tho “ exercise of a sound discretion, not to commit any ono “ unless a primd facie case is made out against him “ by witnesses entitled to a reasonable degree of credit. “ Justices in the performance of this portion of their duties “ will not balance the evidence, and decide according as it “ preponderates, for this would in fact be taking upon “ themselves the functions of the petty jury, and be trying EXAMINATION AND OODIITMENT. 43 “ the caso ; but they will ask themselves whether or not the “ evidence, as it stands, makes out a strong or probable, “ or even a conflicting case of guilt, in any one of which “ cases they will do right in committing the party to trial. “ If, however, from the slender nature of the evidence, the “ unworthiness of the witnesses, or the conclusive proof of “ innocence produced on the part of the prisoner, they feel “ that the case is not sustained, and that if they committed “ for trial a verdict of acquittal must be the necessary con- “ sequence, they will at once discharge the accused, and “ so put an end to the inquiry as far as they are themselves “ concerned.” # If the accused be committed, the magistrate binds over wit no-™ to by recognizance the prosecutor and witnesses (see Form 22, J^uuiui Statute 207), and gives to each of them a notice. (Form 23, Statute 207.) With respect to the sum in which the prosecutor and wit- Amount of nesses arc to be bound by such recognizance, this is left LuidT entirely to the discretion of the magistrate. The magistrates may commit to prison for safe custody witness any witness refusing to enter into the proper recognizance —Form 2t, Statute 207. r^ni/„UK*j In either case, whether of commitment or bailing, either rrS:.om,r by a justice or a coroner, the accused is entitled at any time before the first sitting of the Court at which he is to be tried, to demand from the person having the custody of the same, copies of the examinations or depositions on which he shall have been committed or bailed.—Sec. 93. Under this section the accused is not entitled to a copy x„t until until the whole of the examinations are completed. Rex v. Lord Mayor of London, 5 Q. B. 5o5 ; Ex 'parte Fletcher 13, L. J., M. C. G7 ; R. v. Davies, 1 L. M. and P. 323. lie orui.cn is not entitled to it where the charge is dismissed — Fx parte Humphrey 19, L. J., M. C. 139, nor to a copy of his (,f own voluntary statement—11 v. Aylett, 8 C. and P. GG9. lull 41 EXAMINATIONS REFORE CORONERS.

CHAPTER XII. EXAMINATIONS BEFORE CORONERS AND EXIIUMATION OF DEAD BODIES. Finding, &c., Every finding by a jury at a coroner’s inquest, and the of coroners’ jury to ho warrant of commitment and the recognizances of bail there­ jU'oecrih'il upon nsujion upon issued or taken, are, for the purposes of the prosecu­ commitment by a tion or discharge of the person committed or held to bail magistrate. and the enforcement of all'such recognizances, to be regarded as equivalent to an ordinary commitment, or holding to bail by a magistrate ; and it is competent to a law officer, or other officer for the time being empowered to prosecute crimes and misdemeanors in any Court of criminal jurisdic­ tion to dispose of, or proceed in the case in all respects as if the charge had been primarily investigated before such justice, and he had committed the accused, or held him to bail to take liis trial—Statute 253, sec. 10. It will be observed that this section makes no mention of the depositions, or that they may he read in case of absence or death, as provided by Statute 2G7, sec. 80 and 81. The reason, no doubt, is that no one is charged before the coroner, and the depositions arc not generally taken in pre­ sence of an accused person—Sec Reg, v. Austin, Dears. C. C. 615 ; Reg. v. llazell, 8 Cox C. C. 443 ; Reg. v. Cleary, 2 Eos. and Fin. 850 ; Reg. v. Mooney, 9 Cox C. C. 411 ; Reg. v. Rigg, 4 F. and F. 1085. Deposition On the trial of a prisoner, his deposition made before a of prisoner on coroner’s, coroner is not admissible in evidence against him unless he inquest. has been cautioned—Reg. v. Cohhvell, 2 Wy. and W. 208 ; Reg. v. Taylor, 2 Wy and W. 153 ; Reg. v. Given, 9 C. and P. 238 ; Reg. v. Bate)nan, 4 F. and F. 10G8. Forsona In many cases it lias been the practice to take persons committed by tlui committed by the coroner before justices in order that the coroner to bo taken before witnesses may be examined as provided by the Statute, magistrates. No. 2G7. This was done in the case of the Queen v. Bearncy, in 18GG. An application having ineffectually been made to Barry, J. to prohibit the magistrates from proceeding with the examination of the witnesses in the presence of the prisoner after the accused had been committed for trial by the coroner. Mr. Justice Lush, on the Northern Circuit, on 12th December, 18GG, when trying a case, the Queen v. Jane Graggs, strongly commented on the fact that there had been no examination of the witnesses and sifting of the evidence HAIL. 45 before the justices. There were only examinations of wit­ nesses taken before the coroner in the loosest manner, and tlu; prisoner's statement was not admissible in evidence against her from the manner in which it had been taken. If any further case of the kind came before him, and no depositions were taken before the magistrates, as in every case they ought to be, he should disallow the costs for the prosecution, as he saw had been done by Mr. Justice Black­ burn, at Manchester Assizes, the other day. It is a misdemeanor at Common Law to remove, without lawful authority, a corpse from a grave in a burying-ground !’|J[ll(,ri)v a —Hey. v. Sharpe, 1 Bcarsly and Bell, l(jO. juis.i.Mm-.m- And by the Statute 3.'IS, it is made an olfence punishable ^ t with a fine of £10 for any person to remove any body which li.. ,,*., has been interred without a license, under the hand of the ]!y "Jr,!"11'10 minister in whose department the Statute is administered. It is presumed this Statute does not interfere with the • power of a coroner to order a body within a reasonable time, as a space of fourteen days after death, to be disinterred for the purpose of taking an inquest where none has been taken, or for a further inquisition where the first was insuflicicnt —Staunfs, P. C. 52, 2 Hawkins, P. C. cap. 9, sec. 23. Or, with the Supreme Court, to order a body td be dis- snpremo interred, as in the case of Queen v. Beaneuj, 3 \Vy. W. and order n

CHAPTER XIII. BAIL. Bail are sureties taken by a dul}r authorised person that a mn. defendant charged with an indictable offence shall appear at a certain time and place to answer and be justified by law —1 Hale’s Sum. 90 ; Halt., c. 114. By the Statute 2(57, section 90, magistrates in their din- cretion may admit to bail persons brought before them luisdcmcun- charged with any felony, or with an assault with intent to ors* commit a felony, or with ail attempt to commit felony, or 4G BAIL. with obtaining or attempting to obtain property by false pretences, or with a misdemeanor in recovering property stolen or obtained by false pretences, or with perjury or subornation of perjury, or with concealing the birth of a child by secret burying or otherwise, or wilful or indecent exposure of the person, or with riot, or with assault in pur­ suance of a conspiracy to raise wages, or assault upon a peace olliccr in the execution of his duty, or upon any person acting in his aid, or with neglect or breach of duty as a peace officer, or with any indictable misdemeanor, upon their producing such surety as in tho opinion of the magis­ R>'cojrni- zanco of. trate will be sufficient, and entering into a recognizance to appear at the time and place of trial and surrendering themselves to be tried. . In liko cares after com­ In cases also where a person charged with an indictablo mitment. offence is committed to prison to take his trial for the same, Modo of the magistrate who signed the warrant for his commitment taking. may, at any time after such committal and before the first day of the sitting or sessions at which the accused is to be tried, or before the day to which such sitting or session is adjourned, in his discretion bail the accused in manner aforesaid ; or if the committing magistrate be of opinion that for any of the of Fences mentioned above, the accused ought to be admitted to bail, may certify on the back of tho warrant of commitment in the form 31 in the 2nd schedule to the Statute 2G7 his consent to the accused being bailed, stilting the amount of bail to be required, and any magistrate attending or 1icing at the gaol or prison whore the accused is in custody may, 011 production of such certificate, admit him to bail. The object of this section is to invest the magistrate committing accused persons with the power of bailing such persons, after committal as well as before, and thus to pre­ vent the necessity of an application to the judges of the Supreme Court. Proceed in,~ where sure­ By the same Statute, section 92, in case the sureties ties cannot cannot attend at the gaol or prison to join in the recogni­ .■attend at goal. zance, the certificate of the committing magistrate may be made out in duplicate—Form 32, Statute 2(>7—and upon the duplicate being produced to any magistrate, he may take the recognizance of the surety or sureties in conformity with such certificate, and upon such recognizance being trans­ mitted to the keeper of the prison where the accused is in custody, and produced together with the certificate or the warrant of commitment to any magistrate at the RAIL. 4,7 prison, lie may tako tho recognizance of tho accused and order him to bo discharged out of custody as to that commitment. And ■where the accused person in custody shall he Trans,m*. ndmitted to bail 1>}T a magistrate other than the committing ISn^.' magistrate, the magistrate admitting him to bail shall forth­ with transmit the recognizances of bail to the committing magistrate or one of them, to be by him or them transmitted with the examination to tho Crown solicitor or clerk of tho peace—Section 93. In cases where a person is in prison charged with an Warrant of ddiveranro offence, and he shall be admitted to bail for such offence, the to bo tout. magistrate admitting him to bail should lodge with the keeper of tho prison a warrant of deliverance—Form 33, Statute 2f>7—as an authority to the keeper to discharge the prisoner out of his custody if ho bo detained for no other offence—Statute 2(>7, section 95. Magistrates cannot bail persons charged with treason. Sail in o,w« They can only be admitted to bail by order of the Law of tl iwuio/i. Officer, or by tho Supremo Court or a judge thereof—Statute 2(>7, section 91. Magistrates should admit to bail instead of committing to to bail per­ prison persons charged with indictable misdemeanors other ron*, rb:,r:'<*l •wit h ot her than those mentioned in Statute 2(i7, section 90, as in such misdemean­ cases a defendant has a right to be bailed. or.?. By Statute 253, section 7, a coroner or deputy coroner Coroner, in before whom any inquest is taken in cases where the jury Jiian- h la 11 :rli (or has found a verdict of manslaughter against any person, or and bvi t in*' of wilfully setting on fire any building, ship, or other pro­ lim l.» bnild- perty, may accept bail with good and suflicient sureties for and ot her' property, the appearance of tho accused at tho next gaol delivery, may bail. Circuit Court, or General Sessions, at ■which the trial is to take place, and thereupon the accused shall be discharged out of custody; and if at any time before tho trial of tho accused the coroner shall be of opinion lie ought to be admitted to bail, he shall certify on the back of the warrant of commitment his consent to tho accused being bailed, stating the amount of bail which ought to be required, and an3r magistrate attending or being at the gaol where sueli accused person is in custody may, on production of such certificate, admit tho accused person to bail. Recognizances of bail are to be taken by the coroner or his Ileoofrni- deputy in the form to the 2nd schedule of the Statute 253, zajMV. and notice thereof is to be given to every person so bound —Statute 253, section 8. 48 KAIL. hy tho Polico OfTonccs Statute 2G5, section 58, the cJti'i'iicts inspector or person in charge of any watch-house, lock-up, 't>e ili'imittod or police station in which any person is detained charged to tmi by -\yitli an offence under parts 1 and 2 of tliat Statute, if such offence he not a serious one, may liberate such person on making a deposit of £10, or oil his own recognizance in a like sum. ?n nHtn,i'J of The defendant is placed in the custody of his bail, who nis bailan.i may at any time during which the responsibility of the bail sumndered continues, re-seize him at any hour (as on a Sunday) if they by them. have reason to suppose that lie is about to fly, and take him before a justice, who will commit the prisoner in discharge of the bail, or require him to give fresh bail—2 Hale, 121? ; 2 Hawk, c. 15, see. 3. But it would seem the better course is, if circumstances allow, for the bail to make a complaint before a magistrate of their belief that they have reason to suppose tho accused is about to abscond, and thereupon a warrantor warrant will be granted for his apprehension. This prevents ‘ ^ ' a breach of the peace Anon—G Mod. 231, Exptc. Lynn; 3 Stark. 132 ; Homo v. Sic in ford, 3 Dow and R, Mag. Cases, 361. Porsnna ad- And by the Statute 2G7, section 91, when any person, Km lmd° accused of any treason, felony, or misdemeanor, lias been an'bitention Emitted to bail by any Court, judge, or magistrate, and any maal'£)Iui Person give information on oath to any magistrate of arrested. any facts which raise a probable presumption that it is the intention of the accused not to surrender himself in accord­ ance with the condition of his bail bond, any magistrate may issue a warrant for the apprehension of such accused, and commit him to gaol until he shall be delivered by duo course of law. uplm Ividch Tho principle on which a person committed to take his person* trial for an offence may be bailed is founded—is the proba- mlmittod to bility or improbability of his appearing to take his trial, and bad. not primarily his probable guilt or innocence. The fact of an information having been filed against him and other facts arc, however, material in estimating that probability—Leg. v. Scaife and another, 9 Dow P. C. 553. And it has been laid down that the Court, in exercising its discretion in admitting a prisoner to bail, will consider three elements— the gravity of the crime, the weight of the evidence, and the severity of the punishment; and if the offence is one of considerable magnitude, the evidence of the guilt very strong, and the punishment likely to be heavy, it will generally infer an improbability that the prisoner will BAIL. 49 appear to take his trial, and therefore refuse the application —Reg. v. Robinson, 23 L. J., Q. B. 2SG ; Reg. v. Barronett and anofhcr,Dears. 51; Reg. v. Barlhelcmg, Dears. GO; 9 Dow, N. S. 553. _ The hail must he of ability sufficient to answer for the'vi^™*y sum in which they are hound—2 Hawk, c. 15, see. 4. u ',u * They are usually householders, hut it is for tho, magistrate iiou.^- orjudge to act upon his discretion as to the sufficiency of lu’llK,1,‘ the hail—1 Burns J, Bail 320 ; 1 Chitty, C. L. 99. And it is the duty of a magistrate when bailing a prisoner to ascertain that sufficiency—Queen v. Sanndcru, 2 Cox C. C., 249. > . < As regards the amount of recognizance, this will depend Amount and upon the magnitude of tho offence and the position of the kui! " ’ parties, and will in every case he a fit subject for tho exercise of a wise discretion. No rule can he laid down. Care, however, should he observed that whilst the amount is sufficiently large to make its forfeiture a matter of .serious inconvenience to the parties, it is not unnecessarily heavy. It must, however, he borne in mind that to demand excessive bail is unlawful, and so declared to he hy the declaration of rights—1 William and Mary, sec. 2, c. 2. It is usual to require two sureties, though there is no reason why, if the magistrate thinks that the appearance of the accused will he sufficiently secured by the recognizance of one surety, one only should not he taken, particularly as the 90th Section of the Statute 2G7 speaks of surety. The proposed bail may he examined upon oath as to inn may ba his means, though in a criminal case no justification of hail IZtu as'to011 is requisite—R. v. Hull, 2 W. Black, 110 ; Tidd’sPrac., 250; 1 C. C. Law 100. And the Court or magistrate may at discretion order that reasonable notice shall be given to the Magistrates prosecutor to enable him to object to the sufficiency of the S"Vrfb.-tii bail. No person who has been convicted of any crime bytobeglvcn- which he has become infamous is allowed to he surety for any person charged or suspected of an indictable offence—R. v. Reheard, 4 T. It. 410. Nor can a married woman, or an infant, or a prisoner in custody he bail. If insufficient bail has been taken, or if the sureties become afterwards insufficient, the accused may he ordered insufficient by any magistrate to find sufficient sureties, and in defaultEUfL lL3‘ may be committed to prison—Hale’s Sum. P. C. 97. And the magistrate who admitted a defendant to bail upon insufficient sureties is responsible if the defendant does not appear—Hale’s Sum. P. C. 97. If the defendant cannot E 50 BAIL. immediately find sureties, lie should he admitted to hail upon finding them at any time before conviction—1 Burr, 4G0. Personating Personating Pail is declared to be. a felony—Statute 233, tail.-, felony, qo-

Rr.f using To refuse or delay to hail any person hailahlc is an offence Lail‘ against the liberty of the subject in any magistrate by the common law—1 Black Com. 297. It is also contrary to several Statutes—Westm. 1; 13 Edward I. c. 15; 31 Car. 2, c. 2 ; 1 William and Maiy, Stat. 2, c. 1. The first recited of these Acts provides “ that if any withhold prisoners replcvisablo “ after they have offered sufficient surety, he shall pay a “ grievous amerciament to the King.” But it has been held that the duty of a magistrate in respect of admitting a prisoner to hail is a judicial duty, and therefore that an Action for action cannot he maintained against him for refusing luffm/dn-"'111 without malice to admit to haii a person charged with Ivaiiout misdemeanor and entitled to he admitted to hail—Linford malice. v. Fitzroy, 13, Q. B. 210 ; Reg. v. Badger, 4, Q. B. 4GS ; and 3 Bos. and Puller 551. Accomplices Accomplices should not he hailed. In all cases where an bailed. k° accomplice is to give evidence, lie should he committed— R. v. Bcardman, 7 C. and I\, 497. This, however, can only apply to cases in which the principal is committed to prison, for it would he unjust to hail the principal felon and commit the accomplice, except in default of his finding sufficient sureties. Bail in cases Although a discretion is given to magistrates to hail in all of murder. cases 0f feiony without exception, they never think of admitting to hail on a charge of murder, even where there is no coroner’s inquisition finding murder against the accused, or where the charge upon the trial will evidently fail in being supported, the responsibility in a case of that serious nature being left with the nidges of the Supreme Court alone. Application When magistrates or coroners refuse to admit a prisoner premo court to bail under the provisions of the before mentioned Statutes, fo7\iii!°° an(I in cases of commitment for treason, or for murder under a coroner’s warrant (to which such Statutes do not apply), application may he made to the Supreme Court or to a judge thereof in vacation (which latter power in England is given by 1 and 2 Vie. c. 45.) IIow made. This application is supported hy affidavits entitled in the Court verifying copies of the depositions and a certified copy of the commitment—Reg. v. Barthelemy, 1 E. and B.8 ; BAIL. 51 Dears. C. C. GO. Other affidavits may also be used, stating facts likely to induce the Court or judge to grant the application, especially such as may show it would be unlikely that the accused will escape. A motion is made for a writ of habeas corpus, and for a nav™ certiorari for the depositions (but the latter would seem to Cor|'us’ be unnecessary, unless the defendant has been committed for trial at the General Sessions) as the depositions are returned to the Court. The writ of habeas is signed by the judge by whom it is granted, and the person it is directed to is bound to return the body within three days if twenty miles, ten days if 100 miles, and twenty days for a greater distance. Forty-eight hours notice of bail must be served on the of Crown Solicitor. Kul‘ Upon the return of the writ, counsel moves that the rutumor defendant be admitted to bail, upon an affidavit of service ofTmu^pu^ notice upon the Crown Solicitor, and if there be no opposi- tlon- tion the Court will look at the depositions, and in its discretion admit the prisoner to bail or direct what amount of bail shall be taken, and the officer of the Court or some magistrate takes the recognizance. The application to admit a prisoner to bail maybe opposed Opposing by counsel, and affidavits used in answer. fo?’iI«iiiUon Where a prisoner is confined at a gaol at a distance from Whcro pri- the court-house, so that he and his bail cannot be present nt'd^tanoT1 without great inconvenience and delay, the Court will authorize the magistrates to take what they may consider sufficient bail—Rep. v. Walker, 5 Cox, C. C. 500. The usual course in this country to obtain bail is for a prisoner to apply to a judge at chambers and obtain a sum-bum,llu,is- mons calling upon the Crown to show cause why the accused should not be admitted to bail. This application is supported in the manner hereinbefore mentioned. Upon the return of the summons the judge will look at the depositions, decide . upon the application, and the number of sureties and amount of each. It is said not to be usual for the Queen’s Bench to bail on Number of a habeas corpus, on a commitment for treason or felony, kuL without four sureties ; but for every inferior offence two are sufficient in both cases in that court—Curtail v. Rambridge, 2 Stra. 855 ; R. v. Show, G Dow and Ryl, 15 k Prisoners against whom an information for murder is tiled Persona cannot be admitted to bail—Rex v. Chapman, 8 C. and P., murder not 558; Rcxv. Langley, 4 Cox C. C., 157 ; Reg. v. Gufbridge,U)Uhailcd- e2 ‘ 52 TRANSMITTING DEPOSITIONS, ETC.

9 C. and P., 228 ; 1irg. v. And rev's, 2 Dow and Low, 10 ; Reg. v. jUcGuincss, 5 Cox C. C., 51L Mcxle of The mode of taking hail is by stating verbally to the taking bail. accused and his sureties the substance of his and their recognizance, as thus:— “ You, A. B., of , and you, C. D., of , and “ you, E. F., of , severally acknowledge your- “ selves to owe to our Sovereign Lady the Queen “ the several sums following, that is to say—You, “ the said A. B.} the sum of , Sec. Seed (Then the condition of the recognizance should bo stated, and the bail and sureties asked each, “ A.B., “ are you content, &c.”)

CHAPTER XIV. TRANSMITTING DEPOSITIONS, ETC., AND FILING INFORMATION.

Transmis­ By the Statute 2G7, Section 81, when an accused person sion of depositions. has been committed for trial by a magistrate or a coroner, the written information (if any), the depositions, the state­ TIio state­ ment of the accused and the recognizance of the bail (if ment of the accused and any), are to be delivered as soon as possible after the con­ the reeo,"ni- ranco of the clusion of the case to the Crown Solicitor, if tho committal bail (if any). is to the Supreme or Circuit Court, and to a clerk of the peace in case it is to a Court of General Sessions. Every depo­ Magistrates ought to return all the depositions made at all sition taken ou^ht to bo the examinations that have taken place respecting the returned, whether tho otfenco which is to be the subject of the trial—R. v. Simons, witness be G C. and P. 510. It is equally the duty of the magistrate bound over or not. to return the depositions of witnesses who arc not bound over—R. v. Smith, 2 C. and P. 207 ; as, for instance, the depositions of witnesses called by the accused to prove an I3ut not so j •alibi—R. v. Fuller, 7 C. and P. 2G9. But if the depositions taken after the accused of a witness have been taken after the accused has been lias been committed, and in his absence, such examination ought not committed and in his to be returned as one of the depositions; for nothing should absence. be returned as a deposition against a prisoner unless the prisoner had an opportunity of cross-examining the person making the deposition—Reg. v Arnold, 8 C. and P. G21. There is, however, no reason why such a deposition (if made) should not be forwarded for the information of the prosecut­ ing counsel, although it is conceived a magistrate lias no jurisdiction to administer an oath after the accused has been committed and in his absence. SUPREME COURT. The Statute 2G7 authorises taking depositions in a par- Deposition*, ticular way, and each deposition or set of depositions returned should have a caption, showing upon what charge ]nT0 the}" were taken—11. v. Xeieton, 1 F. and F., Gil ; but see acai'tion- Reg. v. Laugh ridge, 1 Den. C. C., 418; and Reg. v. Clarice, 2 Fost. and F., 2. In this colony there is no grand jury ; but by the Statute Atfomoyor 15 Vic., No. 10, Section 12: “All treasons, felonies, mis- ^rrai^r 4t demeanors and oifenccs cognizable in the Supremo Court Cro"n 1>ro~ “ or any Circuit Court are to he prosecuted by lniormation in iufrr- “ the name of Her Majesty’s Attorney or Solicitor-General,,n‘ltlull‘ “ or of such other person as the Governor of the colony “ may appoint.” In pursuance of this section Crown prosecutors have been Cmwn re­ appointed for the Supreme Court, and the several Circuit his dufj”na Courts. Each of these ollicers reads the depositions, and determines whether there is a sufficient case against the accused to file ail information, or advise whether further inquiries should be made as to the evidence against him. In the event of a Crown prosecutor declining to file an yin-nan information, and where the accused is in custody, the Crown |s‘no"to b? prosecutor notifies his determination to the Attorney- jjj"! General. The Attorney-General may then in his discretion chafed, file an information or decline to do so. In the latter case he may, under the 821st Section of the Statute 228, sign a certificate that he declines to lile an information against tho accused, and thereupon the accused may be discharged out of custody by a warrant under the hand of a judge of the Supreme Court. If on the other hand a Crown prosecutor decides to file l-'iiinx? infor- an information, one is prepared, signed by him, and filed in {"imln1 hy the Court to which the accused has been committed by the 1,roht,:ut"r- magistrates. But the Attorney-General, acting as the grand nytho jury of the colony, has power to file an information where cJm-'miT lie pleases—Reg. v. Patterson and Others, 4 Wyatt, Webb, and ABeckctt, 48.

CHAPTER XV. SUPREME COURT. The Supreme Court of the Colony of Victoria has by the Jurisdiction, lltli section of tho Statute 15 Victoria, No. 10, jurisdiction within Victoria to try all treasons, felonies, misdemeanors and offences ■wheresoever committed, which can be tried by 54 SUPREME COURT. the Court of Queen’s Bench at Westminster, or in the Central Criminal Court in London. High eeas. Jurisdiction for offences committed on the high seas is given by 18 and 19 Vic. c. 91, sec. 21. Gaol deli­ A Court of General Gaol Delivery is holden once every very. month, except January, at Melbourne. Circuit Circuit Courts have also been established under tho 17th Courts. section of the same Act, at Ararat, Ballarat, Beechworth, Belfast, Castlemaine, Geelong, Maryborough, Sale, and Sandhurst. Jurisdiction. These Courts have jurisdiction within the limits of the Circuit District to try all treasons, felonies, misdemeanors and offences wheresoever committed as Courts of Nisi Prius, Assize, Oyer and Terminer and General Gaol Delivery in England possess. Such Circuit Courts are holden at the places before mentioned periodically, on days appointed for that purpose by the Governor in Council. Genera There are also Courts of General Sessions throughout Sessions. the colon}', established under the loth sec. of the Statute 267. Jurisdiction. The chairman and one or more justices, and if no justice be present the chairman alone, and a jury of twelve men, have jurisdiction to try all felonies, misdemeanors and offences committed within the jurisdiction of such Court. Excepting— Offences 1. Treason, , murder, or any capital excepted from. felony. 2. Offences against the Queen’s title, prerogative or government, or against the Legislature of the said colony. 3. Offences subject to the penalty of premunire. 4. Blasphemy or offences against religion. 5. Administering or taking unlawful oaths. G. Perjury, or subornation of perjury. 7. Making, or suborning any other person to make, any false oath, affirmation, or declaration punishable as perjury. ... p 8. Unlawfully or maliciously setting fire to crops of corn, grain, or pulse, or to any part of any wood, coppice, or plantation of trees, or any arson. 9. Bigamy, or offences against the laws relating to marriage. 10. Abduction of women or girls. 11. Endeavouring to conceal the birth of a child. 12. Offences against any provisions of the laws relating to insolvents. OPENING AND SITTING OF TIIE COURT. 13. Composing, printing, or publishing blasphemous, seditious, or defamatory libels. 14. . 15. Unlawful combination or conspiracies. 1G. Stealing or fraudulently taking or injuring, or de­ stroying records or documents belonging to any Court of Law or Equity, or Court with Ecclesias­ tical or Admiralty jurisdiction, or relating to any proceeding therein. And any misdemeanor under tho 113, 1 11, 115, 110, and 147 sections of the Statute 233.

CHAPTER XVI. OPENING AND SITTING OF THE COURT. When the judge first comes into the Court the crier opening makes the following proclamation :— coUlt* “ Oyez, Oycz: All manner of persons mho have, any vrooiama- panel. juror ^ /j6. rname anj addition), and swears all the jurors, who answer to their names. The book is handed to the jurors, and the following oath* administered to any one singly, or • more of them jointly, by the associate :— path of “ You (and each of you) shall well and truly try, and Juror3' “ true deliverance make, between Our Sovereign “ Lady the Queen, and all persons whom you (or “ any of you) shall have in charge, and true “ verdicts give according to the evidence. So help “ you God.” And as, and when each juror is sworn, makes a minute thereof in the panel. tailing When a prisoner is called to the bar to take his trial and witnesses. |3Cforo calling a jury, the names of the witnesses on the back of the information are called to ascertain whether they are present. The associate then addresses the prisoner, and says unto him :— informing “ These good men that you shall now hear called arc S height “ those that are to pass between Our Sovereign the jiulu'I;0 “ Lady the Queen and you upon your trial. If “ therefore, you (or any of you) will challenge them, “ or any of them, you must challenge them as they “ come to take their scats, and before they take “ their seats, and you shall be heard.” ciiailengo of By thc Statute 272, sec. 37, every person arraigned for jurors. treason, felony, or misdemeanor, shall be permitted to chal­ lenge peremptorily to the number of twenty, and every peremptory challenge above the number aforesaid respec­ tively shall be void, and the trial proceed as if no such challenge had been made ; and a similar privilege is accorded by section 38 to an accused who is to be tried by a jury cle mcdictate.

* Under The Juries Statute 1805, hoc. 31, an afliiriuation may be made by a juror unwilling from conscientious motives to be sworn. OPENING AND SITTING OF THE COURT. oi The associate then proceeds to impannel a jury by drawing imjunmii- out of tlie jury-box so many of the pieces of card as may 1,lg,ljury‘ be necessary, and calls aloud the name and addition of the juror written thereon. If lie answers to his name, the associate then directs him to take his seat in the jury-box. If the prisoner wishes peremptorily to challenge the juror so Mode of called, he must do so himself even in cases wherein lie may have counsel—2 Hawk., c. 43, s. 4—and before the juror takes his seat. . The associate then, in cases of treason and felony, gives caving wri­ the prisoner at the bar in charge to the jury, by addressing them thus:— the jury. “Gentlemen of the Jury,—A. B. stands informed “ against by the name of A. B. (reading the infor- “ mation as he did upon the arraignment, omitting “that part as to a previous conviction), and then “ says: Upon this information he has been ar- {< raigned, and upon liis arraignment lie has “pleaded 'not guilty your charge therefore is to “ inquire whether he be guilty or not guilty; “ hearken to the evidence.” In cases of misdemeanor, the jury are not charged ; but inmKie- tho counsel for the prosecution at once proceeds to open the not charged, case, and calls witnesses in support of the information. Witnesses are sworn as follows :— “The evidence you shall give to the Court and jury witness “ sworn, between our Sovereign Lady the Queen °iAth' “ and the prisoner at the bar (or the defendant in “ Court), shall be the truth, the whole truth, and “ nothing but the truth, So help you, God.” When the jury are agreed upon their verdict the prisoner when jury is placed at the bar, and the associate then calls the jurors ^rccJ‘ over by their names, and asks them, “Are you all agreed on your verdict?” If the jury answer, “Yes,” the associate Verdict, replies, “Look upon the prisoner. How say you ? is A. B. guilty of felony whereof he stands informed against, or not guilty ?” Then the foreman of the jury says—“ Guilty,” or “ Not guilty.” The associate then says to the jury—

CHAPTER XVII. VENUE. What suffi- The general common law rule is that the venue in the margin should be the county or local jurisdiction in which the offence was committed—2 Hale, 160. But the venue inserted in the margin of informations in this colony is generally co-extcnsive with the jurisdiction of the Court, and is descriptive of the limit to which the jurisdiction is confined, and regulated by the Statute 233, sec. 329, which enacts :— It shall not be necessary to state any venue in the body of any information, but the jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of such information, provided that in cases where local description is or hereafter shall be required such local description shall be given in the body of the information. Provision is also made by the same Statute for the venue in cases of accessories, bigamy, stealing from ships in dis­ tress, forgery, and uttering counterfeit coin—See sections 322. 323, 325, 326, 327, 328. But this it would seem is VENUE. 50 unnecessary, as the Supreme Court and the Circuit Courts have jurisdiction to try offences wheresoever committed. The Supreme Court, at any stage of any criminal pro- cr.-mOni? ceedings depending therein, or in any Circuit Court, may,thc Vl‘mu>* whether the venue be by law local or not, order that the venue be changed, and direct the trial be had in Melbourne or in some particular Circuit District in such cases, and for such reasons, as the justice of the case may require, and sub­ ject to such conditions as thc said Court ma}' in its discre­ tion impose—Statute 238, sec. 880. Any application to change the venue under the foregoing Application section must be made to the Court, or a judge at Chambers, fur* under the 19th section of the 15 Vie., No. 10 (commonly called tho Emergency Clause.) And if made under that section must show that the application is so made. The supported application is supported by aflidavits entitled in the ease hy stating the grounds of the. motion, and specifying the special circumstances—Re Brcxeer and Wil^tone r.rparte. Baker, 2 Wy. and Webb, 180. If made to the Court a rule nisi is granted, which the other parly may oppose being made absolute. It lias been held that the application should bo made to thc Supreme Court, and not to a judge sitting in the Criminal Court at Melbourne—Reg. v. Davies, Sup. Ct. Vic­ toria, loth Sept., 1809; see also Beg. v. Costello, 1 Wy. and Webb, 90 ; Reg. v. Hope Thompson, 4 Wy. W. and a’J3. 28 ; Reg. v. Patterson and Others, I Wy. W. and a’J3. *1.3. A certiorari is unnecessary in applying to change tho venue, unless perhaps where the prisoner has been committed for trial at thc General Sessions. Tho origin of the practice of changing the venue is re- origin of viewed in Attorney-General v. Lord Churchill, 8 M. and W. 171. " Where it is necessary for thc purpose of securing as far For M*cunri£ as possible a fair and impartial trial the Court will change the venue—King v. Holden, 5 13. and A., .351 ; Reg. v. Bell,triaL 8 Cox, 287 ; Walker v. Brogdcn, 17 C. 13. 571 ; 'll v. Bur­ naby, 8 Mod., 110 ; Bee v. Cardie cl l, 0 Cox, C. C., .815. There is no instance in a criminal ease of a change of venue, except on the ground of the probability of not obtaining a fair trial—Reg. v. Patent Eureka Company, Law Times, Q. 13., 805. The Court will not change the venue on the ground of inconvenience and difficulty in securing the attendance of defendant’s witnesses—Beg. v. Cavendish, 2 Cox, 175. GO TIIE INFORMATION.

Ia conspir­ The venue cannot in England be changed in an indict­ acy. ment for conspiracy until issue is ioined—Ren. v. Forbes, 2 Dow P. C. 440. The Court of Queen’s Bench refused to change the venue in an indictment for conspiracy to destroy foxes and other vermin, on the ground that the gentlemen who were likely to serve on the jury to try the indictment were much addicted to fox-hunting—Rex. v. King, 2 Chitty Deports, 217. When The Court will remove an indictment where it is clear difficult points of difficult points of Law will arise—R. v. Wartnaby, 2 A. and law will arise. E., 435. Right of As to thc right of the Crown to lay and retain the venue crown to lay and retain. where it pleases—Attorney-General of Prince of Wales v. Crossman, 14 Law Times, 85G. An application was made on behalf of the defendant, and granted, to change the venue to Ballarat, in the case of The Queen v. Costello, Supreme Court Victoria, 17th September, 18G1, on the ground that a fair trial could not be bad in Melbourne. The Court will not grant a change of venue in a trial of a criminal information for a libel, on the ground that general political interests are involved—Reg. v, By me, 2 Wy. W. and A’B, 167.

. CHAPTER XVIII. THE INFORMATION.

What. An information is always at the suit of thc Queen, and as it were her declaration ; and the person who prosecutes it is a good witness to prove it. The caption. The caption is indeed no part of thc information itself—■ 2 Hale, 1GG; but it is the style and preamble when the whole record is made up in form. Venue. The jurisdiction of the Court (called the venue) is stated in the margin, as to which see chap. xvii. p. 58 ; and the caption sets forth thc name of the officer filing the informa­ tion, the Court wherein it is filed, the place of holding such Court, and thc time of filing. Who may he Where several persons join in the commission of an joined ns defendants offence, all or any number of them may be jointly informed in the samo against for it, or each of them may be informed against •information. separately—Rex v. Benjicld, 2 Burr., 984. Thus where several keep a common gaming or other disorderly house, or THE INFORMATION. til are guilty of deer stealing, maintenance, libelling, , trespass, or other offences 'which admit of the agency of several, they may bo either jointly or severally informed against—2 Hale, 173; 2 Hawk., e. 25, s. 89 ; R v. Atkin­ son, 1 Salk., 382; 1 Chit., C. L., 2G7. So if several commit a robbery, burglary, or murder, they may be so joined or separated—2 Hale, 173 ; and the same where two or more commit a battery, or are guilty of extortion, or the like— R. v. Atkinson, 1 Salk., 382. And though they have acted separately, yet if the grievance is the result of the acts of all jointly, all may be informed against jointly for the offence—R. v. Troff'ord, 1 B. and Ad., 871. Where money has been-obtained under false pretences, infViP0 and the false pretences were conveyed by words spoken by one defendant in the presence of the others, all of whom acted in concert together, it was holden that they might all be informed against jointly—R. v. Young, 3 T. It., 98. So where two persons joined in singing a libellous song, it was holden that they might be indicted jointly—R. v. Jkufidd, 2 Burr., 985 ; and the same where two or more persons join iniiM, but in any other kind of publication of a libel. But if the publication of each party be distinct, as if two booksellers, publications not being partners, sell the libel at their respective shops, they must be informed against separated}’—Arch. C. Law, 1G ed., G3. So two or more cannot be jointly informed N„t, inp.r- against for perjury—Young v. R., 3 T. It., 103-4?; R. v. Philips, 2 Stra., 921; or for seditious or blasphemous words or the like, because such offences arc in their nature ° ' several. Even where several commit a joint act, which act, how-joint no* ever, is not of itself illegal, but becomes so merely l,y ,lot 111,1-a1' reason of some circumstances applicable to each individual severally and not jointly, they must be informed against separately—2 Hawk., C. 25, s. 89. Principals in the first and second degree, and accessories Principals before and after the fact, may be all joined in the same information—2 Hale, 173, or the principals may be informed against first, and the accessories after the conviction of the principals, or before, for a substantive offence—See Statute 233, see. 275. Upon an information against two persons, charging them now far per with a joint and single offence, as stealing in the dwelling- house, both or either may be found guilty ; but they cannot be found guilty of separate parts of the charge subjecting ° * the prisoners to distinct punishments. And if they be 62 THE INFORMATION’. found guilty separately, judgment cannot be passed upon one, unless a pardon be obtained or a nolle prosequi be entered as to the other—R. v. Iloapstcad, R. and II., oik Separate The Statute 233, see. 378, provides that if upon the recent a. 0f £w0 Qr 1110rc persons informed against for jointly receiving any property, it shall be proved that one or more of such persons separately received any part of such pro- pert}1, (and this lias been held to apply to the whole of such property—lie//, v. Reardon, 35 L. j., M. C., 171), it shall be lawful for the jury to convict upon such information such of the said persons as shall be proved to have received any part of such property. Several Several receivers may be charged in the same information nniirtM-emM-s with separate and distinct acts of receiving—R. v. Pulliam, may be tried 9 (g. and P., 281 i R. v. Hayes, 2 M. and Rob., 15G, Statute 233, sec. 881. Several offenders may also, for different offences of the same kind, be in some cases included in the same informa­ tion, the word “separately” being inserted, which makes it several as to each of them, though the Court will in its discretion quash the information if any material incon­ venience appear to arise from the mode in which it is preferred—Youny v. R., 3 T. R., 106 ; R. v. Kinyslou, 8 East., 46. Burglary Where several persons are informed against for burglary and larceny. ,mq one may be found guilty of burglary and larceny, and the others of the larceny only — R. v. Bufteru'orfh, R. and R., 520 ; sec R. v. Turner, 1 Sid., 171. Larceny and On an information against A. and B. for larceny, with men mg. mother COunt against B. for receiving, A. was acquitted, B. was found guilty on evidence which proved that he was an accessory before the fact to the larceny, and a receiver, and the verdict against him was entered generally. It was held that lie was not (since 11 and 12 Viet., chap. 46, sec. 1, from which and 24 and 25 Viet. chap. 91, sec. 1, Statute 233, sec. 271 is framed) entitled to an acquittal for the larceny —R. v. Huyhcs, Roll, C. C., 212. . Conspiracy. In cases of conspiracy, and riot where one cannot be informed against for an offence committed by himself alone, the acquittal of so many as shall render it impossible for the rest to have committed the offence must of course extend to him—R. v. Kinnersley, 1 Stra., 193; R. v. Sudbury, 12 Mod., 262, 2 Salk, 593, 13 East., 412 ; 1 Lord Raym., 484, S. C. Misjoinder. Misjoinder of defendants may be made the subject of a TIIE INFORMATION. or>

demurrer, or motion to quasii tlio information—Young v. The King, 3 T. R, 103, G ; if. v. Clarke, 1 East, 40 ; 2 Camp, 13-; Statute-33, see. 356. Hut where there are different counts against different persons in the same information, tin’s, though it may he a ground for moving to quash the informa­ tion, is it seems no cause; of demurrer—R r. Kingston, 8 East. 41; provided the counts be otherwise such in substance as may he joined. Where two persons are informed against for a conspiracy, and one of them dies before the trial, and it proceeds against both, it is no mistrial, and entry of a suggestion of the death on the record is unnecessary— Reg. v. Ken riel', E L. J, N. S. M. (-., 135. In an information for high treason there; may ho different u.m-mnny counts, each charging the defendant with different, specie’s of treason against the Queen and her Government, such as compassing the Queen’s death, levying war, adhering to the inf iriu.-ition. Queen’s enemies within the -5 Edwd. Ilf, St. 5, c. 2, and 1,1 h'^]l the conspiracies to imprison or do bodily harm to the Queen ' ‘ within the 3(5 Geo. Ill, c. 7, sec. 1 ; hut counts for treasons against the Queen and her Government and treasons rela­ ting to other matters where the judgments are dilierent, cannot be joined—Arch, C. P. and E, 1 (» ed, 61. In point of law, several offences which may hi; tried by inf ionics the same rules and which have the same; legal character— ?.e, several felonies or several misdemeanors—may bo charged in one information—2 Hale, 173 ; see Reg. v. Hey- u'0(h/, L. and C, 457 ; 33 L. J, M. C, 188. ’ But in felonies the established rule of practice is, that no in felonies more than one distinct offence or criminal transaction at n&eor one time should regularly he charged upon the accused in one information, because', if that should he shown to the charged. Court before pica, they will quash the information, lost it should confound the accused in his defence, or prejudice him in his challenge to the jury—for he might object to a, jury­ man’s trying one of the charges, though lie might have no reason so to do in the other; and, if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge lie will proceed—R r. Young, 3 T. R, 105 ; 2 East, P. C. 515 ; R v. Jones, 2 Camp, 131 ; R v. Johnson, 3 M. and S, 58!). But it is no objection in arrest of judgment—Reg. r. ll'nilcy, 2 M. and Rob, 521. Nor is it ground of demurrer, Young v. R.y 3 T. R, 98; 1 Chit, C. L, 253. Thus, upon an information for receiving stolen goods, if it ki.ti:.,u i.y appear that the articles were received at dilierent times, the i’roK‘cut<,r- 64s THE INFORMATION.

prosecutor must elect its to the receipt of which articles lie will prosecute ; hut the mere probability that the goods were stolen or received at different times is no ground for putting the prosecutor to his election—R. v. Dunn, ct ah, 1 Mood, C. C., 14G. But see now the Statute 233, secs. 339 —377 : These sections only apply to takings, and there are not apparently any similar provisions with respect “ to Where there receiving of stoldl goods.” It SCOHIS, hoWCVCr, lrOIll Hi’}/- counts for wood's case, L. and (J., 457, that where there are three counts theTJ nkybe ^01’ three separate acts of larceny, there may also be three three for counts for receiving. Where several articles are mentioned in reccmng. £jie jnform;l^the prosecutor must prove that they were all taken at the same time, or at not more than three times, and that not more than six months elapsed between the first and last taking; otherwise lie will be put to his election to proceed for such number of takings, not exceeding three, as have taken place within the period of six months—Statute Robbery and 233, secs. 339—377. So upon an information for robbery, £tcnttwith anc^ ^or an assau^ with intent, See., in different counts, the prosecutor must elect upon which he will proceed—R, v. Gough, 2 M. and Pt., 7l ; R. v. Smith, 3 C. and P., 412. Bat there is now no occasion for adding a count for an assault with intent, for the jury may find the prisoner guilty of such an assault upon an information for robbery only—see Statute 233, sec. 373. stealing and An information has been held to be good in point of law receiving, charged the prisoners as principals in one count and as receivers in another—R. v. Galloway, 2 Moo. C. C., 234 ; and now by the Statute 233, secs. 345 and 379, it is pro- vided'that such a course may be pursued, and the prosecutor is not to be put to his election. Embezzle- Where an information contained a count for embezzlement birceny^a an(l another for larceny as a bailee, and the Court compelled banco. the counsel for the prosecution to elect, and he elected to proceed for the larceny, and on that count the prisoner was convicted, it was held that the conviction was right—Reg. Three dis- v. Holman, L. and C., 177. In informations for embezzle- €mbcSio-°f ment, the prosecutor may charge any number of distinct mcnt- acts of embezzlement, not exceeding three, committed by the prisoner against the same master within the space of six months—Statute 233, sec. 342. in arson. In a case of arson the information contained five counts, each charging a tiring of a house of a different owner ; but it being opened that the five houses were in a row, and the same fire burnt them all, the judge would not put the THE INFORMATION. G 5

prosecutor to elect, it being all one transaction—Reg. i\ Trueman, 8 C. and P., 727 ; and see Reg. v. Davit*, 8 F. and F., 1!). And, as a general rule, where the two offences Unit* .v« io charged form parts of one transaction, yet are of such a d,:t,on- nature that the defendant may be found guilty of both, the prosecutor will not be called upon to elect upon which charge he will proceed; for in such a case the joinder of counts cannot prejudice the defendant, which is the only ground on which this application to the discretion of the judge to make the prosecutor elect can be founded—R. v. A ustin, 7 C. and P., 79 G ; R. v. Harlall, id., 175 ; R. v. II heeler, id., 170; Reg. v. PuIInrm, 0 C. and P., 281. Thus a prosecutor acee.v,oiy. will not be compelled to elect where a count, charging a person with being accessory before the fact, is joined with one charging him with being aceessoiy after—JL v. Blael'son, 8 C. and P., 18. So he may be informed against as a, prin­ cipal in the first degree in one count, and as a principal in the second degree in another count—R. v. Grog, 7 C. and P., 171. And, where there are counts in an information for Forgery, forging a bill, acceptance, and endorsement, the prosecutor is not driven to elect on which he will proceed—R. v. You ng, Peake’s add. Cas., 228. Although a prosecutor cannot thus charge a defendant with dilierent felonies in dilierent Same felony counts, yet he may charge the same felony in different ways S.!«K.i in in several counts, in order to meet the facts of the case ; as, ut for instance, if there be a, doubt whether the goods stolen, ' or the house in which a burglary or larceny was commuted, be the goods or house of A or of R, they may bo stated in one count as the goods or house of A, and in another as the goods or house of B—R. v. Egglngton, 2 B. and P., 508. The Statute 288, sec. 299, sec. 0, which'abolishes the benefit of clergy in cases of felony, provides that nothing therein con­ tained shall prevent the joinder, in any information, of any counts which might have been joined before the passing of that Act. In misdemeanors, the joinder of several offences will not, in mi..,lo­ in general, vitiate the prosecution in any stage—Young v. R., 8 T. Ik, 105 ; R. v. Jones, 2 Camp., 182 ; R. v. Rounders, 2 Burr., 981 ; R. v. Kingston, 8 East., 41. For. in offences inferior to felony, the practice of (plashing the information f,imutluI1- or calling upon the prosecutor to elect on which charge* ho will proceed does not exist—R. v. Jones, 2 Camp., 182 ; but see Statute 288, sec. 858. On the contrary, it is the con­ stant practice to receive evidence of several libels and assaults upon the same information—R. v. Benjidd, 8 Burr., F GO THE INFORMATION.

081^ ; and see R. v. Lrry, 2 Stark, C. N. P., 45S, where, under several counts for a conspiracy, alleging several con­ spiracies of the same kind on the same da}T, the prosecutor was allowed to give in evidence several conspiracies on different days ; see also R. r. Broughtony Trern. P. C., Ill, where the information charged twenty distinct acts of extortion, lhit where two defendants were indicted for a conspiracy and for a libel, and at the close of the case for the prosecution there was evidence against both as to the conspiracy, but no evidence against one of them as to the libel, the judge observed that it was more fair that the pro­ secutor should elect which charge he would go upon, and it was done accordingly—R. v. Murphy, 8 C. and P., 270. On trial for In some cases it is not necessary to add counts; for instance, f lonv, vcr- tlirt <-f where the accused is informed against for felony or misde­ attempt. meanor, it is not necessary to add counts for an attempt to commit such felony or misdemeanor—Statute 233, sec. 3G7. I’act.* proved So upon an information for any misdemeanor, if the facts on Iti.kl f»r mi -de­ given in evidence amount to a felony, the accused shall not meanor amoimtiiiL-: on that account be acquitted of the misdemeanor, unless the to f'lonv not Court think tit to discharge the jury and order the accused to cut it Ie to ni’«[ii itt.al. to be informed against for the felony—Statute 233, sec. 3G8; but the evidence must prove the act charged, but not some other and dillerent act. I'nr snnio Upon an information for any felony, except murder and ftlonie.i \ i d it t of manslaughter, which alleges the accused to have wounded u h!.i\\ fully \\ ouudiima any person, lie may be found guilty of unlawfully wounding —Statute 322, sec. 3G9. On trial far So upon the trial of a person for administering poison, ho lini.-M.iiimr. Arnli, tuf may be found guilty of the misdcmeanor-Statute 322, sec. 370. mi-de­ meanor. And upon the trial of a person charged with rape, or On trial far unlawfully and carnally knowing and abusing a girl under rap.', Are., Aeidn t of the age of ten years, the accused may be found guilty of an with intent. assault with intent to commit such offence—Statute 322, sec. 371. On trial for On the trial of any person for the murder of any child, chiH mur­ der, verdict the accused may be found guilty of concealing the birth of concealing firth. ' thereof—Statute 233, sec. 372. Oji trial for And upon an information for robbery, an accused may be ruhherv, \eidi. t .if found guilty of an assault with intent to commit such n -mult with intent. robbery—Statute 233, see. 373. On trial f >r t',-dina And upon the trial of any person for feloniously stealing «'-ttf !■». wr- cattle, lie may be found guilty of the misdemeanor of d i. t of mis- d-mu'-Anor. unlawfully taking, using, or working the cattle—Statute 233, sec. 37k TIIF. INFORMATION. 07

So on an information for embezzlement., fraudulent appli­ On tr! vl for embe:v.!o- cation, or disposition, if the olfence turn out to be a larceny, inent, Arc*., Yrnlkt of the .accused may be found guilty of larceny as a servant l.VlYi llY, and and nee versa—Statute 233, sec. 375. v.v< So if upon an information for obtaining goods by false Ill f.llMl jMvtrnri**, no pretences, the olfenee turn out to be larceny, the accused on may be convicted of false pretences—Statute 233, sec. 370. tIn* j;p*nnd tint tlio to tences laid in the information—t\ Buhner, L. and C., larceny. 182. ^ ‘ . And upon the trial of any person for the felony of riotous For viutons deituditiun, demolition, he may be found guilty of the misdemeanor— undid of mi-do- Statute 233, sec. 380. ' . mi* inor. For carnal On an information for a misdemeanor in having carnal know- knowledge of a girl between ten and twelve years of age, I cl 1;. o of rl bet worn ton the accused can not be convicted of the felony of having and twelve, no convic­ carnal knowledge of a girl under ten, though in fact the tion call bo girl was proved to be of that age—Rcy. v. Shott, 3 C. bad if KiU under ton. and K., 20G. To some purposes the taking of several articles at one and Tim f jibiirj of nrli ' the same time may be considered as one entire felony— arti-do n 1 Hale, 531, 2 East, Pleas, e. 1G, sec. 13(5, 710, 741. Vet s.’iiarito felony. to other purposes the taking of each article has been held to constitute a distinct felony. Thus, if two articles are stolen at the same time, ami the prisoner is tried and acquitted, or convicted of stealing one of them, lie may be indicted afterwards and convicted of stealing the other. A man acquitted for stealing a horse Hath been convicted for stealing a saddle, though both were taken at the same time—2 Hale, 215. Where, however, a prisoner has been already convicted XutiiMial to f r v ;i ]'ri- and sentenced for stealing one article, it is not usual to HOIMT ontl- Vjffod of indict him again for stealing another at the same time ; and, Meal in;: f**r if lie be so indicted, the Court in its discretion may recom­ nn<*t bur Mealing at mend the second indictment to be abandoned. 11io Kiim) The prisoner who was undergoing his sentence for stealing 111 i ie. one pig was indicted for stealing another pig ; both were stolen at the same time, and from the same person. It was admitted by the counsel that a plea of autrefois convict could not bo maintained ; but the prisoner's ease was .submitted to the merciful consideration of the Court. Cresswell, J.: “ I remember a case before Baron Wood, “ where a prisoner was tried and acquitted of uttering a “ forged note, and afterwards indicted for uttering another “ forged note, which he had uttered at the same time as the F 2 68 TIIE INFORMATION. “ former note, and lie held that it might he done ; but “ hero the prisoner had been convicted, and is suffering the “ punishment for stealing the one pig, and therefore I “ think it would he as well not to proceed with the present “ indictment.” On which the counsel for the prosecution offered no evidence, and the prisoner was acquitted—See 2 Kuss., 0., 4 Ed., 2 vol., 316, note (t.) cert.-vinty Informations should he framed with sufficient certainty. nec....vuy. j?or this purpose the charge must contain a certain descrip­ tion of the crime of which the defendant is accused, and a Tii.it ;wr.is«xi statement of the facts by which it is constituted. These ^hatViimo precautions are necessary, in order that the defendant may know what crime he is called upon to answer, and may he * enabled to claim any right or indulgence incident to the prosecution of some crimes as treason, etc., as well as that the jury may appear to he warranted in their conclusion of “guilty” or “not guilty” upon the premises to he delivered to them ; and that the Court may see such a definite offence on record that they may apply the judgment, and the And to punishment which the law prescribes. They are also important, in order that the defendant’s conviction or i.iotrition. acquittal may ensure his subsequent protection, should he again he questioned on the same ground that lie may he enabled to plead his previous conviction or acquittal of the same offence, in bar of any subsequent proceedings—R. v. Horne, Cowp. GS2-3 ; R. v. Holland, 5 T. R, 611-623; 1 Leach, 219; R. v. Mason, 2 T. R, 586; R, v. Rerrott, 2 M. and Set, 386. Con.sc- If any fact or circumstance which is a necessary ingre- v.'intof.of dient in the offence he omitted in the information, such omission vitiates the information, and the defendant may avail himself of it by demurrer, or motion to quash the information. Thus an information for assaulting an oilicer in the execution of process, without showing that he was an officer of the Court, out of which the process issued— R. v. Osnier, 5 East., 301; see R. v. Ererett, 2 Man. and R, 85; S. 0., 8 13. and C., Il l; for contemptuous or dis­ respectful words to a magistrate, without showing that the magistrate was in the execution of his duty at the time— R. v. Lease, Andr., 226 ; against a public officer for non­ performance of a duty, without showing that he was such an officer as was bound by law to perform that particular duty, 5 T. R, 623 ; or stating that the prisoner feloniously did lead away a horse, kc., without saying “ take ”—2 Hale, 181 ; or for obtaining money by false pretences, without THE INFORMATION. C9

showing whoso money it was—R. v. Norton, 8 C. and P., 19G ; It. v. Martin, 8 Ad., and Ell., 481. In all these and the like case's, the information is bad, and the defect may be taken advantage of in the maimer above mentioned— See JR. v. Choc re, 7 D. and lb, 4 til ; 4 B. and G, 902 ; 1 B. and Adol., 801 ; R. v. Long, 5 Co., 122, b.; Statute 288, sec. 858. Every fact and circumstance laid in an information, s»ri>inME<». which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at tho trial—See Statute 238, sec. 332; R. v. Jonc*, 2 B. and Ad., Gil ; also if tlieie be any defect in the manner of stating such matter, the defect will not vitiate the information— R. v. 1 Vallrr, 4 Co., 41 a; 1\. v. Long, 5 Co., 121 b; R. v. Holt, 2 Leach, 593 ; and see 11. v. Hoiearth 3 Stark, 2G ; and by the Statute 233, sec. 332, no information shall bo deemed insuflicient for want of the averment of any matter unnecessary to be proved. With respect to tho degree of certainty, the information n^rco of must state the facts of the crime with as much cer- cerUuuty* tainty as the nature of the case will admit. Therefore, an information charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insuflicient—R. v. Maxon, 2 T. lb, 581 ; and see further instances—1 Chit. C. L., 171-229. If, indeed, it were for a conspiracy to obtain money by false pretences, it would be otherwise—R. v. Gilt and Another, 2 B. and Aid., 20k An indictment that the defendant is a common high- cim^o wayman, a common detainer, a common disturber of the "'’mra * peace, and the like, is not good ; because it is too general, and contains not the particular matter wherein the offence was committed—2 Ilale, 182. In like manner, an indictment for divers scandalous, itrmi,tba threatening, and contemptuous words spoken of a justice fl>ccLiL of the peace, is not good ; it ought to set forth the words ‘specially—It. v. Hov\ 2 Str., G99. But in certain excepted cases, it is sufficient to state generally, without specifying any particular instances, as in a charge of being a common scold, a common barrator, or of keeping a common bawdy house—2 Hawk, G 25, ss. 57, 59 ; and see further—1 Chit. G L., 229, 230. The information ought to be certain to every intent, Cort^ln(y to and without any intendment to the contrary (Cro. Eliz., cv"r^intcnt- 490), and it ought to have the same certainty as a dcclara- 70 THE INFORMATION. tion (Coml)., 4fi0), for all rules that apply to civil plead­ ings are applicable to criminal accusations—It. v. Lavdcg, ‘2 °Stra, 90 k An information which may apply to cither of two (liiforcnt definite offences, and does not specify which is bad—At v. Marshall, 1 Moo, C. C,158. Mere matter of inducement, however, does not require so much certainty in its statement as the gist of the oflence It. v. Weight, 1 Vent., 170; Com. Dig. Indictment, G. 5 ; which itself must- l>e set forth with certainly and precision—It. v. Rowed, 3 Q. B., ISO ; and where the oflence cannot be stated with complete certainty, it is sufficient to state it with such certainty as it is capable of. As in the case ot a a person of goods, it is not necessary to describe, the goods as in an indictment for stealing them ; stating them as “ divers goods ” has been holden sufficient—R. v. Gif!, 1 Chit, (if)S; 2 B. and Aid, 201, S. C. ; sec Reg. v. Ka rr i cl', 5 Q. B, 49. Cliai"'*1 uni' t The charge must be sufficiently explicit to support itself, for 1.0 «\ [.licit. no latitude of intention can be allowed to include anything more than is expressed—R. v. Wheatley, 2 Burr, 1127 ; R. v. Perrott, 2 M. and Sol, 381 ; It. v. Stevens, 5 B. and C, 210 ; S. C. liom. ; It. v. Richards, 7 D. and It, 00*7 Ami in>t ro • Itepugnancy in a material matter will be fatal to the l>n0rn;uit. information—5 East, 2.34-5. As for instance an information charging the defendant with forging a bond by which J. S. was hound, Ac. (which is impossible if the writing be forged) ; or with disseising A, and it appears upon the face of the indictment that A. had but an for years— 2 Hawk, c. 25, s. G2 ; or the like. But though the informa­ tion must in all respects be certain, yet the introduction ot averments altogether superfluous and immaterial will seldom prejudice; for if the information can be supported without the words which are had, they may on arrest of judgment bo rejected as surplusage—Leach, 474 ; It. v. Hall, 1 S. It, 822 ; Com. Dig. Pleader, O, 28 ; Ilaydon’s Case, 4 Co, 41 a. ; Long's Case, 5 Co, 121 b. ; 2 Hawk, c, 25 s, 55 ; R. v. Ben field, 2 Burr, 985 ; 1 Chit, C. L, 821. An information charged A. in one count with stealing, and in another with receiving the goods “ so as aforesaid feloniously stolen/’ and it was held, after verdict, that these words did not necessarily import a stealing by A. ; and if they did, it was conceivable that A. might have both stolen and received the goods, and that, therefore, there was no repug­ nancy—It. v. Craddock, 2 Den, C. C, 81. THE INFORMATION. 71 The oifence must he positively charged, and not stated Musti* by way of recital; so that the words “that whereas ” !r,!7!.v way'1 prefixed will render it invalid—R. v. Ham worth, - Stra.,t,f ,v, ital- 1)00, n. 1 ; R. i\ Crouchu rsf, 2 Ld. Raym., 1863 ; Sess. Ca., 159, 415, 416 ; Cro. C, C., 41 ; 1 Chit.‘C. L, 280. Hut in an information on a conviction, it is not necessary to set forth the conviction at large, blit only shortly, that a certain person was before certain justices convicted, according to the form of the Statute, and thereupon a warrant was issued, Ac.—Rcy. v. Wyatt, 2 Ld. Raym., 1196 ; and mere matter of inducement may be stated by way of recital— Rey. v. Goddard, 2 Ld. Raym., 922; 9 Salk., 171, S. C. The olfence must not be laid disjuncticcly, as that e.rin Ui« defendant " murdered, or caused to be murdered”—2 llawk., dl jmKtn0‘ a 25, s. 58 ; 1 Chit., C. L, 231. The charge must not be laid argumentatively, or by way om^i- of inference, but must be alleged in express and positive mout‘ltndy* language'—1 Salk., 878. The indictment must not be double. The defendant must nnj-aoty. not be charged with having committed two or more offences in any one count of the information ; for instance, one count cannot charge the defendant with having committed a murder and a robbery, or the like. So two defendants cannot be jointly charged with murder or manslaughter by means of an injury done by one of them to the deceased on one day, and another injury done by the other of them on a different day—Ry. v. Deceit, 8 C. and P., 689. The oidy exception to this rule is to be found in indictments for burglary, in which it is usual to charge the defendant with having broken and entered the house with intent to com­ mit a felony, and also with having committed the felony intended. And in informations for embezzlement-, the pro- Twaa- secutor may charge any number of distinct acts, not exceeding three, committed against the same master within n,lcnt rT'iybc six months—Statute 233, sec. 812 ; so, also, in cases of larceny—sec. 339. The proper course seems to be to charge . the several acts in several counts—Rcy. v. Purchase, C. and M., 617. Laying several overt acts in a count for high treason is not duplicity, Kclyng, 8, because the charge consists of the compassing, Ac., and the overt acts are merely evidences of it; and the same as to conspiracy. That the defendant published and caused to be published a libel is not double, for they arc the same offence. So a count in an information charging a man with one, endeavour to procure the commission of two offences is not bad for duplicity, because the endeavour is the offence 72 THE INFORMATION.

charged—R. v. Fuller, 1 B. and P., 181. And it is now generally understood, that a man may be indicted for tho battery of two or more persons in the same count, without rendering the count bad for duplicity — R. v. Ben field, 2 Burr., 08b; see 2 Stra., 870; R. v. Clcndon, 2 Ld. Raym., 1572, cent. 2 sess. eas. 21, No. 28, S. C. In felonies, also, the information may charge the defendant in the same count with felonious acts with respect to several persons ; as in robbery, with having assaulted A. and B., and stolen from A. one shilling and from B. two shillings, if it was all one transaction—Rc 8. C.; 1 East., P. C, 188; and see R. v. Booth, R. and R., 7 ; R. v. Michael, 2 Leach’s C. C., 4th ed, 988; R. and R., 29 8. C. Mere matters of evidence, which the prosecutor proposes ’ “ a ' to adduce, need not be stated, unless it alters the offence ; for if so, it. would make the information as long as the evidence—R. v. Tamer, 1 Stra., 189, 140 ; Fost., 19k And, upon this principle, it has been held that an information, charging the defendants with conspiracy “ by divers false ‘‘pretences and undue moans and devices to obtain money “of A. It, and to cheat and defraud him thereof,” is sufH- cient, without setting forth the particular means or pretences —R. v. Gill, 2 B. and Aid, 201 ; 1 Chit, R, G98, S. C.; R. v. Man'hey, G T. R, G2S; 1 Leach, 274. MHurnf All matters of defence must come from the defendant, and need not be anticipated or stated by the prosecutor—R. v. Baxter, 5 T. R, 84 ; 2 Leach, 580. In an information for disobedience of a justice’s order, it need not be averred that the order was not revoked, nor is it necessary to negative the commission of a higher offence—R. v. Higgins, 2 East, 19, 20. And it is never necessary to negative all the exceptions which, by some other Statute than that which creates the offence, might render it legal ; for these must be shown by defendant for his own justification—R. v. Raaberfon,2 Burr., 103G; 1 Bla.Rep,230 S.C.; 2 Leach,580. THE INFORMATION. 73

Facts which lie more particularly within the defendant’s ivt? in than the prosecutor’s knowledge, need not he shown with ^“£1* more than a certainty to a common intent Tims, where a public oilieer is charged with a breach of duty in certain acts within the limits of his oilice, it is not necessary to state they were within his knowledge, for this will be inferred from the nature of the trust reposed in him—it v. Holland, 5 T. It, (i(>7. If notice he necessary to raise the duty which the defen- Notice, dant is alleged to have broken, it should be averred ; but where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary either to state or prove it—it. r. Holland, 5 T. It, 021. If a request or demand be necessary to complete the offence, it must be stated. Thus, in an information for disobeying a justice’s order, it is necessary to state that the defendant was requested to perform the order, or, at all events, that it was served upon him—1L v. Kinysfon, 8 East., f>2, o3; R. v. Fd b Where an evil intent accompanying an act is necessary i-nu intent, to constitute such act a crime, the intent must be alleged in the information and proved. Thus, where a libel has not been published, but merely sent to the prosecutor, it is necessary to state in the information that it was sent to him with an intention to provoke him to a broach of the peace ; so where a letter containing a libel is sent to the wile, the information ought to allege it was sent with intent to disturb the domestic harmony of the parties—R. v. Wtycncr, 2 Stark. C. N. E, 2 Id ; and see R. v. JJnjjln, It. and it., 303 ; R. v. Furnival, id., -bio. It is not necessary to prove the whole intention, as stated in the information. If it be divisible, it will suilice to prove that part of it necessary to constitute the offence ; and on an information charging an assault with intent to abuse and carnally know, the defendant may bo convicted of an assault with an attempt to abuse simply—3 Stark, 02, Go. As observed by Mr. Justice Bullcr, it is the duty of a unnm-wary good pleader not to clog the record with unnecessary matter, and thereby throw a greater burden of proof on his client than the law requires; and it is still more his duty not to state things which, on the face of the information, are repugnant, inconsistent, or absurd—2 Leach, GOO ; and tho statement of unnecessary matter is censurable and dangerous. And, because the jury are sworn to present the truth, it is best to lay all the facts in the information ns near to the 71 THE INFORMATION. truth as ma}T bo ; and not to say in an information for a small assault, for instance, wherein the person assaulted received little or no bodily hurt, that such a one, with swords, staves, and pistols, heat, bruised, and wounded him so that his life is greatly despaired of; nor to say, in an information of a highway being obstructed, that the Kings subjects cannot go thereon without manifest danger of their lives ; and the like—which kind of words, as they are not at all necessaiy, so they may stagger an honest man upon his oath to find the fact so laid. Where an information is vexatiously long, the Court will refer it to the Master, and sometimes make the clerk of the peace pay the costs of the unnecessary matter—1 Chit. C. L., 203. Novel in pleading are not encouraged—see It. v. Stevens, 5 B. and 0., 210 ; S. C. iiom. It. v. Richards, 7 D. and R., 005. C.n o- If any fact or circumstance which is a necessary ingredient -< cf v\;iiit <>f in the offence be omitted, or stated without sullicient cer­ "t'Tlfl.lI _ tainty in the information, such omission or imperfect rt*f| u i^i t<• i ii int’orin.'i- statement vitiates the information, and the defendant may tion-*. avail himself of it by demurrer, or motion to quash the information—It. v. Osmer, 5 East., SOI ; Andr., 22(j ; Long's Case, 5 Co., 122 b.; 2 llale, 181 ; R. v. Mason, 2 T. It., 581. Umv:co'-"iry Every fact and circumstance laid in an information, which averment. is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial; also, if there be any defect in the manner of stating such matter, the defect will not vitiate the information—Walker's Case, 4 Co., 41 a.; Long's Case, 5 Co.,’ 121 b.; and sec R. v. Hov'arth, 3 Stark, 2(1. And by the Statute 233, sec. 332, it is enacted that no information shall bo deemed insuflicient for want of the averment of any matter unnecessary to be proved. Male) I;.l if But in every case where an oflence is stated in an infor­ doM-iipt i vn <>f an inmv- mation with greater particularity than is necessary, tho ili.-nt m 1 lie unnecessary allegations, if descriptive of some ingredient in titlflice. the offence, and not merely of circumstances, of aggravation, are material and relevant, and cannot be rejected as sur­ plusage—R. v.Doivlin, 5 T.R., 311,317; Arch. C. L.,10 eel.,50. Duplu ity. Duplicity is, it would seem, cured by pleading over— Aash v. The Queen, 33 L. J, M. C, 04. On erro On a Crown case reserved, the judges will not allow the lY.'.n-.],j'oiiit.' th'Te prisoner’s counsel to argue objections that are apparent on in 1','tn only Lu iu em'd. the face of the information unless they were reserved by the judge, but will leave the prisoner to his writ of error—Reg. v. Overton. 1 Car. and M., 055. T1IH INFORMATION. i ■) Tim accused must he described in the information lw liis x.umM.f Christian name and .surname—2 Hale, 17m The Christian :uvu' ,l- name must he such as he obtained at baptism or has usually gone by—Wildni r. Holme,*, (> Mood., 1 Id, 11G. It is said that a man can have but one Christian name, but this must be understood to mean merely that lie cannot be named John alias James, or the like—that is, that a second Christian name cannot be given to him alter an alias 0 id us —R. v. Xtidtam, Lord Ray, 502 ; Scott u. Soan*, 3 East., Ill; but if a man has acquired two names at baptism, lie may be indicted by both. And if these be misplaced, as if his name be Richard Jones, and he be named in the information Jones Richards, it is as much a misnomer, and may bo pleaded in abatement in like manner, as if other and dif­ ferent- names were stated—Jones v. Mocqaillon, 5 T. R., 195. The surname may be such as the accused has usually gone sinwtm. by or acknowledged ; and if there be a doubt which one of two names is his real surname, the second may be added in the information thus: Richard Jones, otherwise called Richard Smith. If the name of the accused be unknown, and ho refuse to if unknown, disclose it, an information against him as a person unknown, but who was personally brought before the Court by the keeper of the------prison, will be sufficient—1\. v.------, R. and R., C. C. E., 18!) ; but an indictment against him as a person to the Attorney-General unknown is insufficient, if there be not something to ascertain the person meant—lb. No addition of an accused is now necessary—Statute, 233, A(Mitiom,r sec. 332. iw:cUi'clL Wherever the name of the person injured is known, his Name mul Christian and surname must be stated in the information—l!f j,!!!'!!',’!1 2 H aw., c. 25, see. 71; but he maybe described by the name he has assumed, though not his right name—R. v. inju.v.i Norton, R. and E., C. C., 510; R. v. Still, J Leach, 100 to known. 105 ; J i. v. Re min tan, 5 C. and 1\, (101 ; Anon., G C. and R, 408 ; R. v. J’ Williams, 7 C. and R, 298. And upon an information for the murder of a bastard child, it cannot be described by the name of its mother, unless that name be gained by reputation—R. v. Clarke, R, and E., 358 ; R. v. Rtxuts, 8 C. and R, 7G5 ; R. v. Smith, 1 31. C. C., 402 ; R. v. Waters, 7 C. and R, 250 ; 1 Moo. 0. C., 457 ; R. v. Stroud, 2 Moo. C. G, 270. ^ But if it have no name either by baptism or reputation, ^Vn ii it may be stated in the information as a certain person unknown, unknown—2 Hale, 181 ; 1 Chit. Grim. Law, 212, 213. And Dirnitv ]in.w*cutor. Addition Varktnc?.

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THE INFORMATION. 77 Highness the Duke of Cambridge ” has been held sufficient —Rkj. r. Frost, Dears. 0. C\, 47 b A bastard is quasi nullius Jilt us, and can have no name n.xst.-mK or reputation as soon as he is born—Co. Lilt., 30 ; but if lie lias gained a name by reputation, he should be described by that name, and not by his mothers name, unless he lias gained it by reputation—R. v. Clarke, B. and lb, 008. If the sound of the name be not aileeted by the mis- Uunroua-M. spelling, such mis-spelling Avill be immaterial, and even where the sound is aileeted, the variance may be amended under the Statute i!33, see. olio. Where the property stolen or injured belongs to a corpora- condition, tion, it must be laid to be the property of the corporation in their corporate name, and not in the name ofthe individuals who compose it—R, v. Patrick, 3 East, P. C., 1059 ; 1 Leach, 253. And where the property belongs to partners, joint tenants, ran nr™, parceners or tenants in common, it is suilicient to lay it as in"iVom-R’n*' the property of A. B. and another, or as the property of 1’:iuic3- A. R. and others, and this provision also extends to all cases where it is necessary to mention such persons for any pur­ poses in any information—Statute 233, sec. 333. By the Statute 254, sec. 10, all personal estate whatever i non.iiy belonging to any Friendly Society must be described to be ,SucKturl> the property of the trustees of the society for the time being. Trustees could not therefore be guilty of stealing the property of the society—Raj. v. Loose, Bell, C. C., 259. A box, belonging to a benefit society, was stolen from a room in a public house. Two of the stewards had keys of this box, and, by the rules of the society, the landlord ought to have had a key, but in fact had not; and it was holden that the prisoner might be convicted on a count laying the pro­ perty in the landlord alone—R. v. Wt/uier, 4 C. and P., 391. But now, by “Tho Statute of Trusts, 181)4,” 28 Vic., seioiw.f No. 234, sec. 82, trustees who, with intent to defraud, con­ vert or appropriate certain property to or for their own use trustee, or purpose, or who, with a like intent, dispose of or destroy such property, are guilty of a misdemeanor. But prosecu­ tions for offences under this section can only be commenced with the sanction of a Law Officer, or in cases where civil proceedings have been taken against the accused, with the sanction of the Court or Judge before whom such civil proceedings are pending. In larceny and embezzlement, or fraudulent application or runic id- disposition of any monies or valuable securities committed Vlcc* 78 TIIE INFORMATION. against Her Majesty, they may he described as the property of the Queen—Statute 288, sec. 81-8. IV-t-oiTice. And lor stealing post letters, Ac., the property may he laid in ’the Postmaster-General without mentioning his name—Statute 2.08, sec. 88. Where ncr-i Where it is essential to constitute the offence that the c. .v.-nt i.tl to person injured should have been of a certain age (as in an information upon the Statute 288, sec. 17, for carnally knowing a girl above ten and under twelve years of age), such person must be stated in every count of the informa­ tion to be of that age ; and it will not be sufficient to state the age in the first count only, and in a subsequent count merely to describe such persons ns “the said A. R”—R. v. Martin, 0 C. and P., 215 ; R. v. Wafers, 1 J). C. C., 350. . l’i0Turc-s in. No part of the information should contain an}" abbrevia­ tion, or express any number or date by figures ; but these as well as every other term used must be stated in words at length—2 Hale, 170; R. v. Philips, 1 Stra., 201. The only exception to this is when a fac s/mile of a written instrument is set out, as formerly was necessary, and is still sometimes done, iu an information for forgery, in which case it must be set out in the information in words and iigmws as in the original itself—R, v. Mason, 1 East., 180...... Interlinea­ And where there is an interlineation in an infomation, tion in. and a can't at the proper place where the intended words are to come in, the Court will take notice of the caret— Retf. v. Davis, 7 C. and P., 310. Si.iS-inent, ;i * The time and place of every material fact which is issu­ t<* t ime an

It is not necessary tlie time should he laid aecordilig to c*n-?- the truth ; for if it he stated previous to the finding of the KJtivJ* information, and the place he ■within the Court's jurisdiction, ^^UKUt ; 2 Hawk., c. 25, S., 101; Kin ft t'. Marsack, G T. It., 77G ; 1 Chit., C. L., 27G ; though if, after such mis- reeital of a public Act, the information conclude generally, as, “contrary to tho Statute in such case made and provided,” omitting any reference to tho Statute recited, tho recital may he rejected as surplusage, lb. But the parts of a private Act upon which an information is framed must he set out specially, the same as other facts ; and a variance, if pro­ perly shoivii to the Court, will he fatal—2 Hawk., c. 25, 103. A Statute passed in a Session of Parliament begun in the second, and continued in the third, year of a king’s reign, must not he pleaded as passed in the second and, third years of the reign, although such Act he recited in a later Statute as “ passed in the second and third years, kc.—See R. v. Bicrs> ] A. and E., 327. Where a Statute forbids the commission or omission of Certainty, certain Acts under certain circumstances, or with a particular intent, an information for an olfence against the Statute, must, with certainty and precision, charge the accused to have committed or omitted the Acts, under the circum­ stances, and with the intent mentioned in the Statute; and if any one of these ingredients in the offence he omitted, the accused may demur, or move to quash the information. The defect will not he aided by verdict—see Lee v. Clarke, 2 East., 388 ; nor will the conclusion confra, foruana BtafutL cure it—2 Hale, 170. And see R. v. Juker, 8 T. It., 53G ; 80 THE INFORMATION.

Tronic in a Com. Dig., Information D., 5. Thus, whore .a Statute made St:11 tit<1 t-hnuM 10 it a felony, “wilfully and maliciously” to do an act, ail II information was held had, which omitted to charge the offence ns wilfully done, though it was stated to he done “ unlawfully and maliciously”—R. v. Darin, ] Leach, 55G. See also—Reg. v. Bait, ] Den. C. C., 157. So the omission of the word “ unlawfully ” in charging an offence where that word has been used in the Statute, has been held to vitiate an information—R. v. Tunin', 1 Moo., C. C., 259 ; Reg. v. Rgun, 2 Moo., C. C., 15. So where an information charged in one count that the defendant did break to get out, and in another that he did break and get out, it was liolden insuflicient, because the words of the Statute are “break “out.”—R. v. Compton, 7 C. and P., 159. But where a specific act is forbidden by a, Statute, the intention will not be material. Thus a party is liable to be indicted under the 5 and 4 Viet., c. 97, s. 15, if he designedly places on a rail­ way substances having a tendency to produce obstruction to the carriages, though he may not have done the act expressly with that object—Reg. v. Ilolrogd, 2 M. and Bob., Or tho^> 559. But it is not necessary to use the identical word to be Syrian vinous >\ ith nr found in the Act, it is sufficient if the word substituted be generic. synonymous with, or generic, so ns to contain that used in the Act. Thus, “ advisedly” may be substituted for “ know­ ingly”—R. v. Fuller, 1 B. and F., 180; or, “maliciously” for “wilfully ;” and in Reg. r. MRulleg, 2 Moo. C. C., 54, an information under Statute 7 A 8 Geo. IV., c. 29, s. 25, for killing a sheep, with intent to steal the carcase, was held to be supported by proof of killing a ram or ewe, the words of the Statute being “ ram, ewe, sheep, or lamb a majority of the judges considering “sheep” a generic term including the former words—See also Reg. v. Spicer, 1 Den. C. C., 82. I'.XOrpiioiH. In some cases a mere statement of the offence, though in the very words of the Statute, will not be suilicient. As where the Statute uses generic terms, in which case it is necessary to state the species according to the truth of the case ; as, for instance, where a Statute makes a maliciously killing of cattle a felony, it is not sufficient in an information on the Statute to charge the defendant with killing “ cattle ” generally, but the species of cattle, as horse, mare, gelding, cow, heifer, ox, Ac., must be stated—R. v. Challccbj, B. and R., 258. .Averment of And where the subject of the information cannot be f u-t^ to bring tho mutter brought within the meaning of the Statute without the aid u itliin tinj statute. of extrinsic evidence, it is necessary, besides charging the TIIE INFORMATION. 81 offence in the words of the Statute, to aver such facts and circumstances as maybe necessary to bring the matter within the meaning of it; as, for instance, where by the usage of a public oflice, the bare signature of a party upon a navy bill operates as a receipt, an indorsement for forging such a receipt, setting forth the navy bill and indorsement and charging the defendant with having “ forged ” a certain receipt for money, to wit the sum of £25, mentioned and contained in the said paper called a navy bill, which forged receipt was as follows, that is to say : “ William Thornton, William Hunter,” was holden bad, because it did not show by proper averments that these signatures imported a receipt—At v. Hauler, 2 Leach, 021 ; 2 East., P. (J., 928 ; see if. v. Barton, 1 Moo., C. C., 141. In like manner it was holden that an informa­ tion for forging the word “settled” at the bottom of a bill must show by proper averments that it is a receipt—if. v. Thomson, 2 Leach, 910; see Reg. v. Boardman, 2 M. and Rob., 117 ; Arch. C. L., Kith ed., 57. In ail cases, however, it is advisable to use the jireci.sc Adviai.io to words of the Statute, as it precludes all question as to the meaning of the expressions used. And if the information describe the olfence in the words of the Statute, alter verdict it will bo suilicient in all offences, created or subjected to any greater degree of punishment by any Statute—Statute 238, sec. 891 ; see if. v. Warshancr, 1 Moo., C. C., 1GG ; objections within this Statute must be taken by demurrer ; it is too late to take them on the trial— Beg. v. Law, 2 M. and Rob., 297; and see Nash v. The Queen, 33, L. J., M. C., 91 ; Statute 283, sec. 358. If there be any exception contained in the same clause of motions the Act which creates the offence, the information must !■"j,s!; h,u,,° show, negatively, that the defendant or the subject of the information docs not come within the exception—Spiers v. " Barker, 1 T. R., Ill ; if. v. Born slam, 15 East., 450 ; Hex v. Jarvis, 1 East., G13 ; if. v. Batten, G T. R., 559 ; and see if. v. Baxter, 5 T. R.. 83 ; .Leach, 580 ; 2 East., P. C., 782 ; if. v. Matters, 1 B. and Aid., 3G2 ; if. v. Pearce, It. and R., 174; if. v. Boh in son, id, 321. If, however, the exception n»t nut in» or proviso be in a subsequent clause or Statute—if. v. H

Tnferpjvti- The Statute, 21 Viet., No. 22, enacts that words importing st-i'ttVt.*/ as the masculine gender shall be deemed and taken to include females, and the singular to include the plural, and the plural the singular, unless the contrary as to gender or number is expressly provided, and the word person shall include a corporation, unless there be something repugnant to, or inconsistent with, that interpretation—See Arch. C. P., 1G cd., AS. No objection can, therefore, now be taken to any informa­ tion, for that the persons described in it do not correspond in number or gender with the description in the Statute upon which the information is framed, smt.wntof By Statute 2d**>, sec. 816, in informations for forging, Ftrumcnt; in altering, offering, uttering, disposing of or putting off, or for forgery, tc. stealing, embezzling, extorting, converting, disposing of, destroying or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instru­ ment by any name or designation by which the same may l>e usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or the value thereof. rrijn-aunr:, And sec. 817 contains a similar provision with regard to ’ engraving or making any instrument, or having any plate, or for having any paper upon which any instrument may be engraved. instruments If a written instrument be described as purporting to bo to so and so, it must, when produced m evidence, appear on (k-aihcd. Uie face of it to be what it is described as purporting to be —It v. Jones, 1 Douglas, 800. JuVS'ntM ^nd by sec. 350 of the same Statute, in informations for set forth sub-perjury it is sufficient to set forth the substance of the c.t!\lnco0f offence charged, and by what Court, or before whom, the charged. oath, affirmation, Ac., was taken, Ac., without setting forth the affidavit, answer, Ac., or the commission or authority of the Court, or prove before whom the offence was committed. a\orrin;'mMod,of And byv , sec. 318,, in all other cases,. 7 wherever. it. shall be to instm- necessary to make any averment in any information as to generally. anJ instrument, whether the same consist wholly or in part of writing, print, or figures, it shall be sufficient to describo such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile of the whole or any part thereof. Dy sec. 832, no information shall bo held insufficient for Muid,. the omission of the words, “as appears upon the record.” TOE INFORMATION. 83 Any variance between the information and evidence is of variance* little importance, owing to the powers of amendment given ^,*£4. by the 860th sec. of the same Statute. Where personal chattels are the subject of an offence, as iv-crirtkm in larceny, they must be described specifically by the names l'f tlKKU usual!}’ appropriated to them, and the number of each species or particular kind of goods must, be stated—2 Ilale, 182, 183. A11 information, stating that the accused took and carried away a person's goods without showing what, is bad—lb. And in informations on Statutes for offences relating to property, the property must be described so as to agree with that stated in the Statute—1L t\ Crac<:n} lb and It, n ; R v. Chard, 11. and lb, 418. .

As a rule, it is well to lay the property generally, but with wvn to hy certainty, because if it is stated that the articles stolen are J’.Vj!b«!iy, gold or silver, it must he proved they are so, when perhaps they may be only gilt or silver. " If an animal lias the same appellation whether it be alive or dead, and it makes no difference as to the charge whether it were alive or dead, it may he called when dead by the appellation applicable to it when alive—R. v. Ruclcr- ing, 1 Moo. C. C., 21-2. But if one be informed against for stealing an animal, it will bo intended to be a live animal unless otherwise stated ; and if it turn out to have been dead when stolen, and the offence and punishment for stealing it alive would he different-, the prisoner must he .acquitted—R. v. ][st ously kill and slay the deceased ; and in case of an accessory to. to any murder or manslaughter, to charge the principal with the murder or manslaughter in like manner, and then to charge the accused as an accessory in the manner heretofore used and accustomed. Count ! f.>r By the Statute 233, sec. 345, in informations for feloni­ stoaliii * and rocoivin- ously stealing any property, a count or several counts for rnav ho j uincd. feloniously receiving the same property, or any part thereof, knowing it to be stolen ; and in an information for feloni­ ously receiving any property knowing it to be stolen, counts for feloniously stealing the same may be joined. But a count for stealing certain property ought not to be joined with a count for receiving the same and other TIIE INFORMATION. 87 property; and if it is the prosecutor will be put to his election—Reg. v. }Yardt 2 F. nnd F., 10. In informations for forgery, uttering, and obtaining pro- ino-mmin- perty by false pretences, or lor offences against the third part of the Criminal Law and Practice Statute, 1801, a nhnnwtot general averment of intent to injure or defraud is sufiicieut inimud- —Statute 288, sec. 88(>\ / # # # By the Statute 288, sec. 812, in informations for embezzle- Tim-e .le­ nient or fraudulent application or disposition by persons in the public service, or for embezzlement by clerks or servants, there may be charged any distinct number of acts di.u^.i. of embezzlement or fraudulent appropriation or disposition, not exceeding three, which may have been committed against Her Majesty, or against the same master or employer, within six months inclusive. In informations for perjury or subornation for perjury, it inr-rjury • is not necessary to allege, or on the trial to prove, the J’f cvekVi^ materiality of any evidence or proof, whereupon the perjury J is assigned—288, sec. 3d2. i>u,ud. An information for an offence created by Statute concludes conrin ior. thus: “Against the form of the Statute in such case made 7natiJ>n l^Vr" “ and provided, and against the peace of Our Lady the Queen, “ Her Crown, and dignity.” sututc. But by the Statute 283, see. 332, no information shall be Oiui.-ion nut held to be insufficient for the omission of the words, r,lt:i1, “against the pence,” or for the insertion of the words, “against the form of the Statute instead of “against the form of the Statutes,” or vice versa, nor for want of a proper and formal conclusion. The accused is not entitled to a copy of the information in c-h- inf,.r. felony, but only to have it read over slowly once and once only Ju^yj011 m —Reg. v. Mitchell,3 Cox,C.C., 1; Reg. v.Doivllng, 8 Cox, 501). In misdemeanors, the accused is entitled to a copy of the innaae- information as a matter of rigdit. But whether a person informed against for felony is of Aft.mn- right entitled to a copy of the information against him after Juuny!m acquittal by a verdict of the jury is a question on which there is a conflict of authority. It is laid down in Rex v. Bravgan, 1 Loach, 27 that he is not entitled to it, ec debifo judilix1, and see Morrison v. Kelly, 1 Win. Black, 38o. The contrary is maintained in Brovene v. Cummivg and Others, 10 B. and C., 70 ; see 2 Selwyn, N. I\, Malicious Prosecution, 10.11. The names of the witnesses who are to support an informa- X:«m.>* «r tion should be endorsed thereon; but the prisoner is not "ltn< '5 0,1 88 TIIE INFORMATION.

Lack of in- entitled to a list of tlie names and addresses of such witnesses ; fonnat inn.

rrh'>Mt*r Tint hut he will be allowed to inspect the information for the entitled to purpose of seeing the names of such witnesses—R. v. Lacey, IX t of. 8 Cox, 517. rtule a? to In cases of felony, the rule as to calling the witnesses naS-n.n11* on the back of the information is, that the prosecutor is firm-!tionl'in11 °k hound to call them, but he ought to have them in uony. Court that the prisoner may call them if he pleases, and the presiding judge will sometimes, in the exercise of his discre­ tion, direct them to be called before the prosecutor closes his case, so that the prisoner may have the benefit of questioning them by way of cross-examination—It. v. Woodhcad, 2 C. and K., 520 ; ltcy. v. Cassidy, 1 F. and F., 70. rr.™n

In the case of It. v. Brown, 25 th Nov., 1SG9, the Supreme supiv™ Court of Victoria, on a special ease reserved as to the virt!niaf admission of the testimony of a witness who had not been ^tti^hat examined before the committing justice, decided that the preceding usage is not a rule of law, but one of practice, which should be followed in the Criminal Courts of the colon}T.

CHAPTER XIX. EX OFFICIO INFORMATIONS AND INFORMATIONS RV LEAVE OF THE COURT. The information eve officio is a formal written suggestion /Vr-w. of an offence committed, tiled by the Attorney-General, or in the vacancy of his oflice by the Solicitor-General—l\cx v. Wilke*, 4 Purr 2527 ; 4 Pro. c. 800—without any leave previously obtained of the Court for that purpose—Bex v. Plymouth, 4 Purr 2089; Bex i\ Pltilliy*, 8 Purr 15G1<; and may be against any one whom he thinks proper to select, without oath, motion, or opportunity, for the defendant to show cause against the proceeding; but he usually proceeds on the atlidavits of witnesses, though when) the offence is manifest, as in the ease of a libel on the Government, no extrinsic evidence need be laid before him. In England such informations lie for misdemeanors only, jvrMi and not for treason or felonies—Com. Dig. Informal ion, A. 1; J”j^lur3 B. v. Bryn a, 5 Mod. 459 ; B. v. Bn/ chef, 1 Show 10(>; or mis­ prision of treason—2 Hawk, e. 20, s. 8 ; for whercYer any capital oifence is charged, or an offence so highly penal as misprision of treason, the law of England requires that the accusation should be warranted by the oath of twelve men before the defendant be put to answer it. The usual objects of an information cx officio are said to be oi-jVH^.r. such enormous misdemeanors as peculiarly tend to disturb or endanger the Queen’s Government, or to molest or affront her in the regular discharge of her royal functions—t Pin, Com. 308 ; such, for instance, as seditious or blasphemous libels or words, seditious riots not amounting to high treason; libels upon the Queen’s ministers, the, judges, or other high oflicers, reflecting upon their conduct in tho execution of their official duties ; obstructing such oflicers in the execution of their duties; obstructing the Queen’s oflicers in the collection, Vc., of the revenue ; against magis­ trates, and oflicers themselves for bribery, or for other corrupt or oppressive conduct; and the like. 90 EX OFFICIO INFORMATIONS, ETC.

In It. v. Browne, 7 Cox C. C. 412, informations ex officio were filed against directors of a banking company, for a con­ spiracy to defraud the shareholders by false reports of the pecuniary condition of the bank, and otherwise. An ex officio information was also filed in the Supreme • Court, Melbourne, by the Attorney-General, against the Rev. John Dunmore Lang, for a libel oil Chief Justice Sir Win. A’Eeckett, 20th February, 1855. . Attorney- The Attorney-General is not in any case liable to an ii;'iui!'toaction on the supposition that the information was filed action. maliciously or unjustly—Sutton v. Johnstone, I T. R. 514, 535. Dc fondant By Statute GO Geo. III. and 1 Geo. IV., c. 4, s. 8., the h'!,VvI'ftho1 defendant after appearance, upon application to the Court, is information, entitled to a copy of the information free of expense. Court may If the Attomey-General delay bringing the information ('nirr 'for to trial, the defendant cannot take it down by proviso—R. inf'.nnatilui Me Lend, 2 East 202 ; but if it be not brought to trial within twelve calendar months next after the plea of “ not guilty ” has been pleaded, the defendant may, after twenty days’ notice to tlu; Attorney or Solicitor-General, apply to the Court, who may, if it secs just cause to do so, authorise the defendant to bring on the trial, who may bring it on accordingly, unless a nolle prosequi be entered—GO Geo. III. 1 Geo. IV., c. 4, sec. 9. The Attorney-General may if he pleases insist on a trial at bar—R. v. Johnson, 1 Stra. 644 ; and see Bruce v. The Queen, 2 Wy., W., and a’B., 19!) ; and on the trial has a right of reply, even though the defendant call no witnesses —R. v. Marsden, Moo. and M. 439. Tnf rm.itinn By the Statute 15 Viet., Mo. 10, sec. 13, information may ihesi'iu-cmo he exhibited by any person, by leave of the Supreme Court, Cumt. against any other pci-son, for any crime or misdemeanor not punishable by death, alleged to have been by such person committed; and it is not necessary for any person making such an application to file any exculpatory ailidavits, unless required by the Court so to dp. In England, informations of this kind arc filed by the Master of the Crown Office. In this colony the Prothonotary of the Supreme Court is the proper officer to sign them— Reff. v. Pcthybruhje, G Wy., W. and a’B. GG. It has been held that these informations are those meant in the repealed Statute 19 Viet. 4, sec. 10, “An Act to amend the Law relating to Defamatory Words and Libel ” —Reij. v. 0’Farrell, 2 Wy. and Webb. 117. PROCESS ON AN INFORMATION. in

CHAPTER XX. PROCESS ON AN INFORMATION. When an information lias boon iiled and tho person when an charged thereby has not appeared and pleaded, and lie is present in Court or in custody of the Court, lie may at once be arraigned on the information—2 llaw. e. 27; but if he iuMi..n. appears voluntarily, it is discretionary in the Court to detain him or leave him to be taken in the ordinary way—Hcw- *on\ s* Case, 2 Lewin, C. C. 277 ; U rabbi it a Cave, 1 Lew, C. C. old. Where the accused is in custody of another Court, the if m.-nnhoy course is to remove him by habeas corpus and bring him up 'hmru "*r to plead—Hex v. t$pr(t

“ information they have not, nor hath either of them “ as yet appeared or pleaded. “These are therefore to will and require and in Her “ Majesty’s name strictly to charge and command you “and every of you on sight hereof to apprehend and “ take the bodies of the said A. B. and C.D., and bring “ them or either of them before me or one of the judges “ of the Supreme Court of the said colony, if taken in “or near the city of Melbourne; if elsewhere, before “some justice of the peace near the [>lace where they “ or either of them shall be herewith taken, to the end “that the said A. B. and C. D. may answer the said “ information. Herein fail not. “ Given under my hand and seal the day of “ one thousand eight hundred and seventy . “ To , tipstail* or an}' other tipstaff of Her “ Majesty’s Supreme Court, and to all inspectors of “ police or petty constables, and all otheis whom “ these may concern.” Fr«wt‘dings When the accused is apprehended under this warrant, he w lit-n ac­ cus'd is taken before a judge or a justice of the peace, who holds arnstril. him to bail, or in default commits him to prison. By Bonch And by a long course of practice, independently of this warrant. Statute, it is an established rule that any Court before which an information for a misdemeanor is tiled, may forthwith issue a Bonch warrant for arresting the party charged and bringing him immediately before such Court to answer such information—8 Repts. Crim. Law 99 ; Dick. Scss. 230, Cro. Cir. Comp. 15 ; 1 Chitty, C. Law 389. When This warrant is granted whilst the Court is sitting, and is gran ted. not issued unless from the nature of the crime it is necessary that the party charged should be at once taken into cus­ tody, or that lie is about to quit the country—Ren. v. II hit- taker, 2 F. and F., 1. .... If the warrant be issued during the Assizes, it is signed by a judge ; if at Sessions, by two justices of the peace. The following is the form :— Bondi “Victoria: To all constables, and other Her Majesty’s warrant. “ oiiicers and ministers within the colony of Vic- “ toria, and to every one ot them to whom it may “ concern. “These are to will and require, and in Her Majesty’s “ name to charge and command you upon sight “ hereof to bring before us, Her Majesty’s justices PROCESS ON AN INFORMATION. 93 “ of the peace for the colony aforesaid at the General “Sessions of the pence, now holden at Melbourne, “in and for the district of Pourko, the body of “A. i>., who stands informed against before us at “ this same Session for a trespass and assault (nature “of the ot fence) if the Court be then and there “sitting, or if not before us or some other of Her “ Majesty’s justices of the peace for the said colony “to iind sufficient sureties for his personal appear­ ance at this present Sessions to answer the said “information, and all such other matters as on Her “Majesty’s behalf shall be objected against him, “and if he cannot be taken during this present “Session, that then as soon after as lie shall bo “ taken you bring or cause him to be brought before “us, or some other of Her Majesty's justices of the “ peace of the said colony to tind sufficient sureties, “ that is to say two sureties, in X , each for “his personal appearance at the next General “Sessions of the ponce to beholden for the said “district, to answer as aforesaid, and further to be “dealt with according to law. Hereof you arc not “to fail at your peril. Dated in open Session at “the Court House, Melbourne, aforesaid, this “ Of , A. D. 187 . “ C. D. and K F.” Now, however, the more usual practice is to apply to the warrant to proper oiliccr of the Supreme Court or the Clerk of the Peace for a certificate of the information having been ex- »>«-*

Warrant t<) Form of Warrant to apprehend a person informed ayainst. api.clKiul. “ To , constable of , in the colony of “Victoria, and to all other peace olliccrs in the “said . “ Wlier eas it hath been duly certified by “ (associate or clerk of the peace at the General “ Sessions of the peace), holden at in and “for the said colony that (Ac., stating the certi- “ ficate.) “ These are therefore to command you in Her Majesty’s “ name forthwith to apprehend the said “ and to bring (him or her) before (me or us) or some “ other justices of the peace to be dealt with according “ to law. “ Given under my hand and seal, the day of , “ in the year of Our Lord one thousand eight “ hundred and seventy , at , in the colony “ aforesaid. “J. P. (L.SJ •At'OlISol When the accused against whom this warrant has been U[>«m arrest to l>o taken issued, is arrested under it, he is taken before a Justice of Is ft>re a the Peace, who, on its being proved upon oath before magistrate. him, that the person apprehended is the same person, who is charged and named in such information, commits him for trial, or admits him to bail—See sec. 50. The following is the form of the—

Warrant cf Warrant of Commitment. commitment ■ “To , constable of , in the colony “ of Victoria, and to the keeper of the gaol at “ , in the said colony. “ Whereas by (my or our) warrant under (my or our) “ hand and seal, dated the day of , “after reciting that it had been certified by J. D. “ (Ac., as in the certificate), I or we commanded “ , constable of , in the said colony “ of , and all other peace officers of the ARRAIGNMENT. 95 “ said colony in Ilor Majesty's name forthwith to “apprehend the said , and to bring him “before (me or us) the undersigned (one or two) “of Her Majesty's justices of the peace, or before “some other justices of the peace, to be dealt “ with according to law. And whereas the said “ hath been apprehended under and by “virtue of the said warrant, and being now brought “ before (me or us), it is hereupon duly proved (to “me or us) upon oath that the said is the “same person who is named and charged in and “by the said information. These are therefore to “command you and the said constable in Her “Majesty's name forthwith to take, and safely “convey the said to the said goal “at in the said colony, and there “ to deliver him or her to the keeper thereof “ together with this precept, and (I or wo) hereby “ command you the said keeper to receive the said “ into your custody in the said gaol, and “ (him or her) there safely keep until (lie or she) “shall thence be delivered by due course of law. “Given under (my or our) hand and seal, this “ day of , in the year of Our Lord one “thousand eight hundred and seventy , at “ , in the colony aforesaid. “J. P. (L. S.)"

CHAPTER XXI. ARRAIGNMENT. Arraignment is the calling the accused to the liar of the viut. Court, to answer the matter charged in the information— 2 Hale 210, and consists of three parts: 1st, Calling the prisoner to the bar byname; 2ndly, Stating to him the substance of the information, or, if required, reading it to* him ; 3rdly, Asking him whether he be guilty or not.

In felonies, the accused must be present in person, to t«> i.i.wUn plead and stand his trial; and it should so appear on the record—1 Show, 131 ; but in misdemeanors after plea pleaded, lie may sometimes appear on his trial by attorney —2 Hale, 21(>; 8 Grim. Law Rep., M3; 1 Cliitty C. L., 532 ; and where the punishment is a fine, he may confess by attorney—Anon. G, Mod. llep., 1G. 90 ARRAIGNMENT. riacins the Oil Ills arraignment, an accused, though informed against accus'd at the har mu.-d for the highest crime, must he allowed to stand at the bar ho without iron?-). free from all irons or bonds—Staundford, P. C., 78 ; unless there be any danger of escape, or perhaps of his committing any act of violence, and then he may be put in irons if necessary. lie ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no terror or uneasiness other than what proceeds from a sense of his guilt, or the misfortune of his present circumstances—2 Hale, 210; 2 Hawk, c. 28. In the case of Rex. v. Iloiltjcrs and Others—2 Burr., 1809, the prisoners "were chained together after trial, when brought up for sentence. And now an accused is never brought up in fetters. The distinction taken in Layers Case, 0 St. Trials, 280, and ILnAV? Caw, 1 Leach, 43, on this point with respect to the time of arraignment, and the time of trial, where it is stated that the prisoner is not entitled to be freed from irons until after he has pleaded, does not now appear to be of importance, even if it ever could be sup­ ported—Sec 2 Hale, 219 ; 3 Inst. 3t; The Mirror, c. 5, 1; Britton, c. 5, 14. Mu.st enter Accused persons charged with felony must enter the the dock in cases of dock ; they are not allowed to sit near their counsel—Rex. felony. v. Carlisle, G C. and Iv., G3G ; R. v. Lovett, 9 C. and P., 4G2 ; R. v. St. Gcon/e, 9 C. and P., 485 ; R. v. Duuer>,m re­ person referred to in the information; but whether he do so by ferred to in the infor­ answering to his name, l)}r holding upliis hand, or otherwise, mation. is immaterial—R. v. Radclijje, 1 Bla, Rep., 3; Lord Staf­

Wluai oil fords case, 1 Raym., 408 ; Post., 40 ; 2 Hawk., c. 28, c. 2. hail should It is advisable that accused persons, who have been out 1 >e searelied before "oiii't on bail, should be searched before they enter the dock. intothe dock Tdode of The charge in the information should then be stated to Ftatiirjr sub­ the accused, and care be taken that lie distinctly under­ ject of infor­ mation. stands it. Accural After the information is read, or its effect stated as the asked if guilty or not case may be, the associate or officer of the Court, asks the guilty. accused whether he is “guilty” or “not guilty.” Withdraw­ If, on arraignment, the accused lias pleaded under a al;; plea. mistake, either as to the effect of his plea, or the effect of the information, the judge in his discretion will allow him to withdraw his plea, and plead afresh. A prisoner, after having pleaded not guilty to a forgery, has been allowed to withdraw his plea, and plead guilty ; and again, upon being ARRAIGNMENT. 97

called ns a witness against an accomplice, and swearing that his plea of guilty was pleaded by mistake, to witlidraw liis second plea, and again ])Iead not guilty, and be tried upon it.-—AY;/. k Clou fa* aud- Jlrafh, 8 Cox, C. C., 2d7. But the permission to withdraw a plea is a matter in the dis­ cretion of the judge ad the trial, and lias been refused to a prisoner, who had pleaded not guilty when the applica­ tion to withdraw the plea was made with a view to demur­ ring to a portion of the information — AV/. u. Ihvivn, 1 I)eii. C. C., 291; 17 L. J. M. C., l lo. ‘ If, after arraignment, the prisoner by consent, with­ draw his plea of not guilty and plead to the jurisdiction, he may afterwards be again arraigned upon the same infor­ mation, and the former arraignment is no answer—Post. 10, 29; 1 Wils., 157: IFA/Cyo/eY (Vv, (Vo., Car., H7. Tf before the plea is withdrawn the prisoner has been given in charge to the jury, the proper course is to withdraw a juror, and have the jury discharged, as in Khiloch'x Cow— Fost. 10. The accused is not entitled to have acopy of the in for- n-aiir^tiio illation, but only to have it read over to him once, and once lufunu*iticU* only—AY;/, r. JAwA//;/, d Cox, o()9. It is a constant, practice for the Courts, in all cases whore ThoComt, the prisoner’s counsel deems it material for the defence, as a favour, to allow him a copy of tin* information, or of such j'jVw'inf’lr- parts as it may be necessary for him to examine—Arch. mati««n. Cr. PI., 1 (* Kd., 12,1 ; and in trea son, it is given as a, right; but the information should he read, or its sub-la nee, stated on the arraignment, although the accused lias had a copy given to him—II. r. Hats;;/, ] Burr. Old. By the Statute 2dd, sec. dab, if on arraignment an j -t rf accused pleads “ not guilty,’’ he shall without any other form be deenued to lia\ e put himself upon the eo 1111 try for trial, and the Court shall, in the usual manner, order a, jury for the trial of the person accordingly. 'When the accused is d«*af and dumb, or is compelled to Vrnii'imH'iit lie mute through either afiliction, lie. may, if he understands the use of signs, be arraigned, and the meaning of the asso­ ciate be conveyed to him by signs through an interpreter, sworn to interpret truly, and his signs in reply explained to the Court, so as to justify the recording of a plea; of guilty or not guilty ; and in the latter caw*, proceed with his trial, and to the inlliction of legal penalties—-ii. v. Ju/tcu, J Leach, 102.

By Statute 2dd, sect. 997, if the accused, arraigned upon 1 nh.-r.n- or charged with any information for an indictable offence, tu,w'1 II 98 AUUAKJNMENT. topi. vi stand mute of malice, or will not answer directly to the information, tin? Court (if it shall so think fit) may order the t, 1 r> proper oiiieer to enter a plea of not guilty on behalf of such rccor'iLi. person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same. r If the prisoner he mute by the visitation of God, as if liiVii

v. Wheeler, Central Criminal Court, May 12th, 18C5, where the prisoner was indicted lor the murder of his mother, and on his arraignment said, lie was not “guilty,” Platt, B., on the motion of the prisoner’s counsel, directed the jury to be sworn to inquire whether the prisoner was in a lit state to plead to the indictment ; and it appearing from the evidence that the prisoner seemed to understand the nature of the crime for which lie was indicted, but that lie seemed unable to understand the distinction between a plea of “ guilty” and of “not guilty,” the jury, at the sug­ gestion of the learned judge, returned a verdict that tho prisoner was of unsound mind, and incompetent to plead. From the earliest times it has been the law, that where a prisoner, though lie may have been perfectly sane when he committed the oifence lor which he was indicted, was found to be insane at the time of arraignment, he shall not be arraigned for it; for he is not in full possession of his senses, so as to be capable of pleading to the information with due caution, or doing what is necessary for his defence—4< Bla. Com., 2 k ' Noli:.—Win re the jury are sworn in the nature of an inque n t of cfiicc, to inquire whether or not an uccu.:< 1 y- r/011 is sufiiciently Fane to plead to tho information, the Court directs the linding to he recorded, and the following is a form of the record of the finding:— “ Victoria: The Queen against A. J). The Faid A. B. being brought hero “ into Court, in the custody of the keeper of Iler Majesty's pan], at “ And the said A. J>’., being now here in Court arraigned, “ upon the information found .against him in this Court, for (hero “st.de the offence), and is linked by the Court hero w hether he bo “ guilty of the premises charged upon him hy tlie said information “or riot. Whereupon the said A.B. doth refuse to answer to tho “ said information. And it appearing to this Court that tho said “ A. B. may ho insane, so that he cannot he tried upon the said “ information, therefore on the prayer of , Ilcr “ Maji sty's Attorney-Gem ral, it is ordered that a jury in this “behalf do immediately come in ro into Court, to try and inquire “for and on behalf of Our Sovereign Lady the Queen, whether “the s.iid A. B. ho insane or not; and immediately thereupon, “ a jury bun;’ impanneked and returned for that purpose hy the “ slit rid of the said , conic here into Court, and “ being elected, tried and sworn to speak the truth touching and “ concerning the premises aforesaid, say upon their oath, that tho “ said A. />’. is insane. And the said Attorney-General, for “ and on behalf of Our Sovereign Lady the Queen, prays the said “ Court here, that the finding of the said jury may he recorded. “ It is tin ivnpmi ordi red l»v the said Court here that the said fiud- “ in;’; of the s■ tiT jury be recorded, and the said A. B. be kept “ in strict custody in the s.iid gaol until the Governor’s pleasure in “tho premises shall be known. And tho said A. B. L now “ hero in Court re-committed to the custody of the keeper of the “ said gaol, to ho by him kept in strict custody until the Governor's “pleasure shall be known. On the motion of the Attorney- “ General. By the Court.” ARRAIGNMENT. 101 Tho mode of arraignment, where a previous conviction is Mu>rf charged in a count in the information, is now provided hy „7 i« nt tho Statute 2.‘>3, sec. 3(12. The accused is, in tho first | instance, called upon to plead to so much only of the in for- illation as diaries the subsequent olibnce, and if he plead not guilty, or if the Court order a plea of not guilty to he entered on his behalf, the jury shall he charged in the first instance to inquire concerning such subsequent offence only; and if they iiml the accused guilty, or if on arraignment he inamui plead guilty, lie shall thru, and not, before, be asked whether ^iV.'nuitr lie had been previously convicted, .as alleged in the informa- r,vv!,,;M . tion ; and if lie answer that lie has been, so previously m r-iuiiva convicted, the Court may proceed to sentence him accord- mt0‘ ingly ; but if lie deny that, he had been so previously convicted, or if lie stand mute, of malice, or will not answer directly to such question, the jury shall then be charged to impure concerning such previous conviction ; and in such case it shall not be necessary to swear the jury j„ry r-,o again, but the oath already taken by them shall for all p^vern. purposes be deemed to extend to such last-mentioned inquiry. The course of proceeding above stated is to lie adopted, whether the previous conviction is stated at the beginning or at the end of the information—it. r. Jltlloji, Dell, C. C. 20. The above statute expressly declares it shall not lie necessary to swear the jury a second time ; but it had boon so held upon a prior statute, which contains no express pro­ vision to that effect—It. v. fih ufthforth} Temp, and .Mew. G2G ; llcj. v. AT;/, id. 023 ; Anonymous, f» (fox 2(58. The same section of the Statute 233 also provides that, if if yri -.y.cr a person gives evidence of his good character, the previous *'; 7t7 conviction may be proved in the first instance, and the jury 7‘AipfV'10 shall inquire concerning such previous conviction at the same Ou.i.io, rtho time they inquire concerning the subsequent offence, and c<'M\ i>'i i<>n see lloj. v. (jadhuvj, 8 (J. and P. G7G ; 2 llussel, 1 cmI., jg'Pa 3j3. ' When there are several defendants charged by the same nary <,r information, they should he arraigned together, and the llj-n!/,1’1 Jori trial proceeded with as to one or more as shall bo found most convenient for tho purposes of justice—Kel., 8. r.rord. If a want or omission of the arraignment appears on tho record, it will be sufficient ground for reversing the judg­ ment and conviction—2 Hale, 218; Anun.t 3 Mod., 205 ; 1 Chitt., Cr. L., 118. 102 PARTICULARS OF TIIE CHARGE. The following is tlic form of tlic entry or description of the arraignment on tho record :— Form of. “And afterwards, to wit, at the same Supreme Court “ of General Gaol Delivery, on the said day of “ 187 , before His Honor, “ Hero cometli the said G. //., in the custody of “ tho keeper of Her .Ma jesty’s gaol at “ (in whose custody in the gaol for the “ cause aforesaid lie had been before committed), “being brought to tlic bar hero in his proper “ person by the said sheriff, to whom he is here “ also committed. And forthwith being demanded “ concerning the premises in the said information “above specified and charged upon him, how he “will acquit himself thereof, he saith that he is “ not guilt}' thereof, and thereof for good and evil “ he puts himself upon the country. And J. II, “who prosecutes for the said Lady the Queen in “ her behalf, doth the like. Therefore, tke.”

CHAPTER XXII.

PARTICULARS OF THE CHARGE. Winn Where the counts of mi information are framed in a nnb mS to bu ^ivtn. general form, the Court will order the prosecutor to give the defendant particulars of the charges upon which lie intends to rely, and these; particulars should be so framed as to give tlic same information as would be given by a special count, but they need not state the specific acts, or tlic times or places at which the acts an; alleged to have taken place— II x. v. Nmu Ilf on, 7 C. and P., 118; II j. v. Rue,'off, (j Cox, A!,,,!! :Xum C. C., 7() ; iiV//. v. Probed, Dears ley, C. C., 82. In Amnnj- f li.iuM r.I. t 1m- in;,,I,: to rmovx, 1 Chi tty, (IDS, the Court refused to order particulars t!M- !-.«■ .Tu­ tor. to be; given on. motion ; but intimated tlic correct course was to apply to the prosecutor to give some information as to the particulars upon which lie meant to rely in support of the information; and, if lie refused, an application might be made to postpone the trial, in order that the question might be more maturely discussed—See also Ilex. v. Ilodjyon, 8 C. and P., 122—Ilex e. JJooftfhnrn, o C. and If, 800. Tim :t]>]ilira­ The Court lias no jurisdiction to^ make an order upon a tion sboul.l bo loa-lo to prosecutor to deliver particulars of a charge of embezzlement til*1 jii'i-o at tlma -i. o ; to a prisoner awaiting bis trial at the assizes. The applica- OAT1IS. 103 lion should bo made to tho judge at the assizes—AY;/. v. Ha-dam, 1 Jurist, N. S., 1139, Q. B. ; Hex. v. 7/ug/nw, 4 Cox, C. C, 415. No affidavit is necessary, as the necessity for particulars Norarnvit appears on tho lace of the information — /Yg. r. Probe Dears ley's C. C., 32 ; 11:

CHAPTER XXIII.

OATHS. All persons are sworn according to the ceremony of their v,,!o of respective religions, provided they believe in a Cod, a future existence, in which there is a dispensation of rewards and punishments—lug. v. Holme>*, 2 Eos. and Kin. 789. A ^Mahometan is sworn on the Koran. The form in t.» M:iI**.iho- Mor(j(inK GW*, 1 Leach 5 1-, was as follows : Idle witness first placed his right hand flat upon the bool;, put the other hand to his forehead, and brought the top of his forehead down to the bool: and touched it with his head. He then looked for some time upon it, and being asked what died that ceremony was to produce, lie answered that he, was bound by it to speak the truth. A Jew, upon the Pentateuch, with his head covered—ToaJov, Omiehirnd v. llarWr, Wilks 51-9; but a Jew who staled he professed Christianity, but had not been baptised, nor 104 OATHS. ever formally renounce J the Jewish faith, was allowed to be sworn on the New Testament—GMann's Co*e, 1 Esp. 285. To a Gentoo A Gentoo, according to tho mode of administering ail oath in his own country. The evidence of a Gentoo has been received who touched with his hand the foot of a Brahmin—Onuclnnid r. Barl'cr, 1 Aik. 21 ; ] Smith’s Leading Cases, 5 ed., 381. Tho Sco tch The Scotch oath is administered by holding up the right oatli. hand uncovered, the witness repeating after the crier as follows:— “ I swear by Almighty God, and as I shall answer to “ God at the great day of judgment, that I will tell “ the truth, the whole truth, and nothing hut truth, “ in so far as I know and shall be asked in this “ cause.” Or according to Mildraues CttsCy Leach 412, and Mrc v. Reid, Peake’s N. P. C. 28, the witness holding up the hand without touchingO the book or kissingO it:— “ You swear, according to the custom of your country “and of the religion you profess, that the evidence “ you shall give shall be the truth, the whole truth, “ and nothing but the truth. So help you God.” Scotch The following is also the form of the Scotch Covenanters’ Covcnan tcrs. oath:— “ I, A. B.y do swear by God himself, as I shall answer to “him at the great day of judgment, that the “ evidence I shall give to the Court touching the “matter in question is the truth, the whole truth, “and nothing but the truth. So help me God.”— 1 Leach 412, n. ; IG/C/c/as Cose, Q. B. 1788. A Chin^o A Chinese witness takes an oath by breaking a saucer, blowing out a light, or cutting oil* the head of a cock. The following is given as the form of swearing a Chinese witness—Bntrclrmah'n Ca-'C, 1 Car. and M. 218 : On entering the box, the witness immediately knelt down, and a China saucer having been placed in his hand, he struck it against the brass rail in front of the box, and broke it. The crier of the Court then, by direction of the interpreter, admin­ istered the oath in these words, which were translated by the interpreter into the Chinese language :— “You shall tell the truth and the whole truth; the “ saucer is cracked, and if you do not tell the “ truth your soul will be cracked like the saucer.” OATHS. 105 By the Statute 1D7, see. ot, all persons who, from alleged Air.nimti.m conscientious motives, are unwilling to ho sworn as wit- !;}nViiViT.T<(> nesses, limy make an allinnation in the following form :— K’ “I, A, Ry do solemnly, sincerely, and truly affirm and “declare, that the taking of any oath is according “to my religious belief unlawful, and 1 do also "solemnly and sincerely and truly aflirm and “ declare that the evidence, AxV’ By the same Statute, sec. 12, aboriginal natives and as infants under seven years of ago, destitute of the knowledge ,k,“ of God and of any belief in religion, or in a future state of hcVL'n rewards and punishments, may give evidence upon, an alUr­ ination to tell the truth. Deaf and dumb witnesses, as well ns all others who do not iv.af ami speak the English language, should be sw orn through the medium of another person qualified to interpret them, the f interpreter being first sworn faithfully to interpret to the witness; also, where the accused does not understand tho English language, the evidence should be interpreted to him. The interpreter’s oatli may be in tho following form:— “You shall well and faithfully interpret the evidence own t<> “about to he given, and* all other matters and “things touching the present charge, and fhc,,TI... “ (French or, as the case be) language into the “ English language, and the English language into "the. (French, *k*e.), according to tho host of your “ skill and ability. So help you God.”

To an interpreter for a. foreign witness, or a deaf and OaOi( f an inU rjn t«;r dumb witness:— t'l a lull:mi “You swear that you well understand tho “language, and that you will truly, disfinctl}’, and “audibly interpret the oath to be taken by tho “ witness C. I)., and that you will truly and iaith- “ fully interpret the questions put to him, and the “ answ ers given thereto by him. »So help you “ God.” 100 NOLLE PEOSEQUI.

CHAPTER XXIV.

NOLLE PEOSEQUI. Entry rf In England, n, voile pro^equ J, to stay proceedings upon an or''lutin.rity information, maybe entered at the instance of either the Attorney- prosecutor, or defendant by leave of the Attorney-General, ouiu.a. iLt any time alter the information is tiled and before judg­ ment—Lord Raymond, 7-1. It can only he entered by the authority of the Attorney- General or, perhaps, in the vacancy of that oflice, of the Solicitor-General—/Ay. u. Bunn, 1 C. and K., 7*>0. And it is not allowed without leave of the Attorney-General—AYy. v. Collin*; and Another, 2 Cox, 18k It does not operate as an acquittal ; the party remains !'u acquittal, liable to be reinformed against, and it lias been said that even fresh process may be awarded on the same information —G Mod., -dl ; 1 Salk., 51) ; 1 Wins. Saund., 1207 (n) ; Com. Dig. Indict, (k). This latter doctrine, however, appears not to be Jaw—See the judgment in Ji. v. Allen, 1 Lest and S., 850; 11. v. Mitch el t o Cox, 03 ; and Archbold’s Crown Cilice Practice, GA Where, on an indictment for perjury, the Attorney-General enters a nolle prosequi on the part of the Crown, he does so on his own responsibility, and the Court will not interfere— Rep. v. Allen, 0 Cox, 1E0. The Court has recommended a nolle prosequi to be en­ tered on some counts of an indictment—Ilea. v. Howlands, 2 Denison, C. C., GGL Put a nolle prosequi cannot be entered after the jury have been charged, and the case for the prosecution is closed— Rep. v. K cl lei. Vic. Lave Times, 5. rum,of The following is the form of entering a nolle prosequi, on ctttiy- record “ And now that is to say, on before the “ said Supreme Court cometh, the said A. B., “Attorney-General of our said Lady the Queen, “who for our said Lady the Queen in this behalf “ prosecuteth, and saith that the said A. B. will “ not further prosecute the said C. D. on behalf of “ our said Lady the Queen on the said information. “ Therefore, let all further proceedings be altogether “stayed here in Court against him, the said C. B., “ upon the information aforesaid.7’ DEMURRERS, ETC. 107

CHAPTER XXV.

DEMURRERS, MOTION TO QVASU THE INFORMATION, AND RLE AS. Ily tho Statute 2.‘k‘>, see. AH, every objection to any in- oiy,a-noa formation apparent on tho faro thoroof must ho taken hy !!!!!,'(!!r,!"'1* demurrer, or motion to quash tho information, before ilu‘ accused lias pleaded and not afterwards. And tlm Court r’«■■••ot. may, if it think jit, cause the information ibrthwith to bo ‘l-v amended, and no motion in arrest of judgment is allowed41;1 for any delect in any information which might have been •,* n!r taken .advantage o of byJ demurrer or motion to quash1 a,s\\ In, ll lmi’llt aioresaid. n*\ «• i« <-u m> And by see. oof of the same Statute, no person prosecuted .shall be entitled, as of right, to traverse or postpone the trial .* r of any information preferred against him in the Supreme jr'h.,u'°u Court, or ail}" Circuit Court or Court of General Sessions of the Peace, or to have time to plead or demur to any such information allowed him. Put if the Court', before whieli any person is so informed against shall, upon tho application of such person or otherwise, bo of opinion that he ought to be allowed a further time to plead, or demur, or to prepare for his defence, or otherwise, such Court may grant such c.mii u.ny further time to plead, or demur, or may adjourn the iveeiv- jb.,!)l',"i0 ing or taking of the plea or demurrer, and the trial, or as tlie ease may be, the trial of such person to some future time of the sittings of the said Court, or the next or any subse­ quent sessions or sittings of such Court. From these sections it will bo seen that all objections to any information apparent on the face thereof must he taken by demurrer, or motion to quash the information, before the accused has pleaded, and not afterwards. And that no motion in arrest of judgment is allowed for any defect in an information which might have been so taken advantage of. And that the accused must, on arraignment, if lie does .wn ,.i not apply to quash the information, at once plead or demur thereto, unless ho is allowed hy the Court further time to do so. A demurrer is used when the information is defective 111 I)i iiiurii r substance, or in formal statement allowing the facts to he true as laid in the information. Ill order to take advantage of any defects on the face of the record, the accused ought to demur, or apply, on 108 DEMURRERS, ETC.

motion to quash the information—R. v. Purchase, Carr and M., G17 ; Statute 233, sec. 3o0. General and Demurrers to informations are of two kinds: general in abate­ ment. demurrers and demurrers in abatement. The former state that generally on the face of the information no offence sufficiently appears, and the latter point out specilic defects in point of form. The following is the form of a general demurrer:— Form of “And the said G. B., in his own proper person, comes pjncril demurrer. “ into Court here, and having heard tho said “ information read, says that the said information, “and the matters therein contained, in manner and “ form, as the same are above stated and set “forth, are not sufficient in law, and that he, the “said G. B., is not bound by the law of the land “ to answer the same, and this lie is ready to “verify. Wherefore, for want of a sufficient in- “ formation in this behalf the said C. I). prays “judgment, and that by the Court lie may be dis- “ missed, and discharged from the said premises in “ the said information specified.” Joinder. Form of “ And A. 7>., who prosecutes for our said Lady the Queen Joinder. “ in this behalf, says, that the said information, and “ the matters therein contained, in manner and “ form as the same arc above stated and set forth, “are suliicient in law to compel the said G. J). to “answer the same, and the said A. B., who prose- “ cutes as aforesaid, is ready to verily and piove the “ same as the Court shall direct and award ; where­ fore, in as much as the said C. J). has not “ answered to the said information, nor hitherto ill “any manner denied the same, the said A. B., for “ our said huly the Queen, prays judgment, and “ that the said C. D. may be convicted of the pre- “ mises in the said information specified.”

On parch­ Regularly the demurrer should be on parchment, and ment. signed by counsel—R. v. Wcillccr, 2 Moo. and Rob., 11G; thou oh joinder in demurrer may be ore ten us—R. v. Sheen, 2 C. and 1\, 031. . A demurrer Where a prisoner had pleaded to an information for linn been allowed after felony in his counsel’s absence, the judge, on the counsel’s ploa. application, allowed him to demur before the evidence was gone into—Reg. v. Purchase, C. and M., 017; but this would DEMURRERS, ETC. 100 not be permitted in order to take advantage of a mere verbal objection—7iV/. r. Qdf/u's, 2 M. and Rob., 470. Judumont. in favour of a prisoner on a demurrer to an .Tutl.Mnent on (IramTif information is not pleadable in bar to a subsequent informa­ Tti'( l- Me in 1-ir of tion—II, r. Rich mo ml, 1 Carr and K., 1210. a ra!' V'luonti In eases of a general demurrer, the latest decision as to tho judgment being final, is by Alderson and Crosswell, *J.J, .1 ud.nnrrit < a iu ISKoay sitting at the Central Criminal Court, who, after much con­ liiial. sideration, arrived at the conclusion that when a general demurrer to an indictment for felony is overruled, the judg­ ment of the Court must be final ; for by it the prisoner confesses all the mat cried facts charged against him in the Fame indictment—llnj. i\ Fadcnnan, 8 (1. and K., 3.*>3 ; though it might be otherwise with respect to a, demurrer of a special nature, usually called a demurrer in abatement. In misdemeanors the defendant, after judgment on de­ In murrer to an information given against him, cannot plead liiuuiur. over—II. v. Gibbon, 8 East., 107; unless by permission of the Court—II. c. lh nuuufhnni and G. IE. Radtvarf Co.f 3 Q. 13, 221 ; II. v. Tr:/dd,/n,'l Rail, C. C, If). So the judyment of the Court, in favour of a demurrer to Judi'llirllt a plea in far to an information for a misdemeanor is final on to i*!ca In for the Crown—II. v. Ta;(hn\ 3 13. and C, a()2 ; but, in Case of felony, it would bo otherwise, hi fa run in rUln in favour of the demurrer, tlie defendant limy answer over—■ ulateuicut. IFtchoni v. Lr'inaitrc, 2 Wils, «*>(»7 ; Routh v. Shajtcoff, 1 East, add ; though on issue joined on a plea in abatement to a misdemeanor, and verdict for the Crown, the judyment is final—II. v. Gibson, 8 East, 107 ; E ichor n v. Lcrnaitre, ubi ,vup. Tho judyment given against a prisoner on demurrer to an Jnil;'Tnoni on cannot bo information cannot be reviewed by the Court for tho con­ reversed. sideration of Crown cases reserved—II. v. Fadcriuan, 1 Den., C. 0, d(I5. I3y the Statute 233, see. 3o0, any information may he Qwum ^ quashed for any objection apparent oil the face of it, ii’ tho objection be taken before plea pleaded. Where an information is so defective on the face of it that no judyment can be given upon it, even should tho defendant be convicted, the Court on application will in general quash it; and whore tho information or caption ia defective, the Court have a discretionary power to quash it immediately, or to oblige the defendant to plead or demur, which rests entirely with the Court. 110 DEMUniEETlS, ETC. Tho Court have exorcised this power, oil an informa­ tion against six for exereBing a trade, because it was a dis­ tinct offence in each, and could not therefore be made the subject of a joint prosecution—R. v. Tariff, 4 Burr, -OKI ; li )\ IIWoy?;i Str., 02:3 ; and sec R. v. Philips Id., 021 ; and there are several instances where informations have been quashed, because the facts stated in them did not amount- to an off‘iicc punishable by law—See R. v. Bn rh-tt, Amir. 230 ; R. v. Sermon, 1 Burr, 410, 4 [3; R. v. Bldlpoffx, 1 C. and K., 112 ; as, for instance, an information for contemptuous words spoken to a justice of the peace, not stating that they were spoken to him whilst in the execution of his office— R v. Jaeafe, Audi*., 220. So the judge may, in his discretion, quash the information where the defendant is charged with different felonies in different counts, or with several ollenccs in the same count. Fn li in for­ After the information against the defendant lias been mat ion. quashed, a new and more regular one may be preferred against him—2 Wo odd os, 444 ; 3 P. Wins., 480, 400 ; Jl. v. Glenn, 3 B. and Aid., *3/*3. A jury sworn on an information clearly bad ill point of law may, it seems, be discharged by the judge from giving a verdict—R. v. Beacon, R. and M., 27 ; sec R. v. Bonier, 2 Stark, C. N. P., 423. . . IU. No more tlian one plea can be pleaded to any information for misdemeanor, or criminal offence—R. v. Charles- U'orth, 1 Best and S., 4C0. In felonies, however, if the accused plead in abatement, lie must afterwards, if the plea be adjudged against him, plead over to the felony ; if he pleads specially in liar, lie may (7i. v. Charlc.sv'orth, 1 Best and S., 400) and should in strictness, also, at the same time, plead over to the felony — R. v. Drury, 3 C. and K., 200. rif'l Of not. By the Statute 233, sec. 34G, a plea of not guilty, ruiC v j-’iti the ;l" yii o-l without any further form, puts the accused upon the <-n Li.; tri.il. country. If lin rofu-so And by sec. 347 of the same Statute, if any person being to ]tli\-ol, C-Mirt liny arraigned upon, or charged with any information for any onl-'r ;i ]-Fa indictable olfenee, shall stand mute of malice, or will not <>f not yuilty to be ca­ answer directly to the information ; in every such case it tered. shall be lawful for the Court, if it shall so think jit, to order the proper olliccr to enter a plea of “not guilty” on behalf of such person ; and the plea so entered shall have the same force and effect as if such person had actually pleaded the same—Ray. v. Seidel cr, 10 Cox, 409. PCMUKurns, i:tc. m A prisoner, who had been previously tried and convicted, but whose trial was deemetl a. nullity, on account of some informality in swearing the witnesses, was again arraigned upon an information for the same olience, and refused to plead, alleging that he had been already tried. Littledale, J.,aml Vaughan, 'll., ordered a plea of not guilty lobe entered tor him under this enaetment—R. r. Jill fun, (I (and I>., 9 A Where a prisoner pleaded guilty to a charge of felony, and r»;-n,r sentence has been .pas.-ed upon liim, he cannot afterwanls A ’ retract his plea, and plead not guilty—R. c. Self, 9 C. and P., :uo. ~ ‘ 1'** Pleas to the jurisdiction seldom occur, and it is not neccs- ivomiu* sary to treat of them ; but set? Arch., (-. P., 1(> cd., 1 IS. Pleas in liar an* either special pleas or the ycnernl issue. rr.^inKu. Special pleas may be of a previous conviction of the same oflenev, or a previous acquittal on a. valid information, or of a pardon. Special pleas in bar seldom occur in practice, with the exception of the plea of avtrcfo!s acquit. P>y Statute 251, see. 9, a defendant may specially plead the truth of a libel, as a defence. The Statute ATI, see. o(Il, enacts that in any plea- ofm-mf^r- avfrcfois conrfct or autrefois acquit it shall he suilieient for any defendant to state that he has been lawfully convicted vrC‘1- or acquitted, as the case may be, of the offence charged in the information. The full owing is the form of the plea of autrefois acquit:

‘‘And the said C. I)., in his own proper person, comes r..nn - r i-u-% “into Court here, and having heard the said ff'J'",3 “ information read, says that our said Lady the “Queen ought not further to prosecute the said “ information against the said C. 1). ; because, he “ says, that heretofore, to wit, on the day of “ A. l). 187 , at the \rjr acral “ sessions of (1\c 2'fO.icc] holden at , in and for “ the , he, the said C. D., was lawfully “acquitted of the said offence charged in the said “information. And this lie, the said C. l).t is “ready to verify ; wherefore he prays judgment, “and that by tlu; Court here ho may he dismissed “and discharges'! from the said premises in the “ present information specified. “And as to the felony and larceny of which he, the n. i o>,r t<> “said C. J>., now stands informed against, ho, the f,I""'v‘ “ said G. D.y says that he is not guilty thereof, and 112 demurrers, etc.

“ of this tho said C. B. puts himself upon the “ countiy, ire.” shouMi.oon The plea owdit properly to be on parchment, signed hy rarchmunt. Qomy^__R g C. Rlld P., G3 k The Court will liot reject the plea, however, because it is informal, but will assign counsel to prepare it in a proper form for the accused —It. v. Gha'nihi viain, G C. and P., oret'muiLot In 11. v. Walin', 2 Moo. and It., 44G, tho, plea was aiiuuca. tendered ore tenu*, but Parke B. ordered it to be put on parchment. A demurrer to it was subsequently tendered by the Crown ore fen vs ; but the judge ordered that also to be put on parchment. Joinder of demurrer was, however, allowed ore ten as, on the authority of It. v. Sheen., 2 C. and P., Go k If the information be tor treason or felony, the plea should conclude with pleading over to the felony; and, in strictness, without such plea the defendant would be left without defence if judgment were given against him on the plea of autrefois acquit, and such judgment would be final —It, v. Brarif, o C. and K., 190 ; It. v. \ran, 2 Leach, 712. But it is laid down in 2 Hawk, c. 2R, sec. 12S, that a prisoner may still plead “ not guilty ” after his special plea is found against him, and in 11. v. Wefli, Arch. C. P., 1G ed., 127; Car. Cr. L., 56—this course was pursued, and see It. v. Sheen, 2 C. and P, G:U. Jury fcworn In the case of a plea of autrefois acquit, a. jury is impan- inaiinter. xie]|0(| instanter to try the issue—It. v. Scott, 1 Leach, 101; and therefore there is no replication actually pleaded on tho part of the Crown. But see It. v. Sheen, 2 C. and 1\, G35. Kciiiir.ition A replication and similiter must be entered upon the audbiimhtcr rccQi,d wiicri afterwards made up. The form may be thus:— romof. “ And hereupon A. B., who prosecutes for our said Lady “ the Queen in this behalf, says that by reason of “anything in the said plea of the said G. 1). above “pleaded in bar as alleged, our said Lady the “ Queen ought not to be precluded from prosecut- “ ing the said information against the said C. B., “ because he says that the said C. B. was not “ lawfully acquitted of the said charges in the said “ information, in manner and form as by the said “ C. B. in the said plea is alleged ; and this he, the “said A. B., prays may be inquired of by the “countiy, and the said G. B. doth the like. “ Therefore let a jury come, tc.” pnirRmcns, i:t<\ 113

“And the said C. 7>., who prosecutes for our said Lady n,yv,,v,n “ t!u‘ Queen in this behalf, says that by reason of if','!/”* “anything in the said pirn of tin' said (\ /). above “ pleaded in bar alleged, our said Lady the Queen “ ought not to be precluded from proseeuting tlie “said information against the said C. 77, because “ lie says tlmt tlioro is not any record of tlm said “ suppo-t.‘d acquittal, in manner and form as tin? “ said C. I), hath above ill tin* said plea alleged ; “and this lie, tho said A. />., prays may 1 inquired “of by the country, Ac, and the said C. 77. doth “ the like. Therefore let a jury eomu, k'c.” In case of felony, if the plea be held had the judgment is .lU'-lfinn lit. 'Vi>’jnnnh1 tea in bar had been pleaded—7b a’ V. lloch<\ 1 Leach, 1 (iO. In ease of misdemeanors, as the defendant cannot also plead over, the judgment upon a plea, of autrefois acquit, which is in bar, whether it be on demurrer to the same or oil boie joined, is iinal, and .sentence will bo pronouneed against the defendant—2 Ld. Laym., !)22 ; 7i. r. 7b'//or, I> 15. and Cress., b()2, b 1). and lb, 122. Winn, on the other hand, the plea is allowed, the judg­ ment is, “ that he shall go without day," and he is altogether discharged from the prosecution—2 Hale, 31)1. A verdict, for the. prisoner cannot he set aside, and a new \ycm f..r trial had, although without evidence, and against the opinion t*--» of the judge—7i. c. Ltd, 2 Moo. 0. C., !). An accused, convieted of felony, may plead such eon vie- a.u., o;.r tion in har of any .subsequent information for the felony of which lie was so convicted—1 131. Com., oo(> ; 2 llale, 2b 1 ; ITe./bs* Cayc, d Co., lb a.. In the pica it is sullicicnt to set out that tin* accused has jv.i<»f. been lawfully convicted of the offence charged in the information—Statute 223, sec. o(il. The following is the form of pica :—

“And the said (J. 7)., in his own proper person, comes riraofouwr. “into Court here, and having heard tin? said-/irc"u"f “information read, says that our said Lady tin; “Queen ought not further to prosecute tin; said “ information against tho said (J. 77., because he “says that heretofore, to wit, on the day of “ , A.l). , at the \(}( ncra( sessions of (he I 114 DEMURRERS, ETC.

“ peace'] hoklen at , in and for tho “ county of , he, the said G. i)., was law­ fully convicted of the said offence charged in the “said information, which said conviction still “ remains of full eliect and unrevoked. And this “ the said C. D. is ready to verify, wherefore he “ prays judgment, and that by the Court here ho “maybe dismissed and discharged from the said “ premises in the present information specified. rimoTcrto ** And as to the felony and larceny of which he, felcnj- “the said C. D., stands informed against, he, the “said G. D.y says he is not guilty thereof; and of “ this the said G. D. puts himself upon the “ country.” Not a Mr A plea of autrefois convict, which shows that the judg- fornlcrinfnr-nient on the former information lias been reversed for error Lccn°rhlK'3 in the judgment, is not a good bar to another information ver.u-ti f.r for tho same olfencc—R. v. Drury, 3 C. and K., 190. A^rOun.r Where a person stole two pigs belonging to the same f‘r htUiiink l Pcrson ^10 8111110 time, and, after being convicted and oik; of two punished for stealing one of the pigs, was again indicted at ntthills 1 he H.union’imo a gubsequent assize for stealing the other, the former not time, nl- tht»uc;h oon- having been found out till after the prisoner had been con­ virfrd of victed : Held that this might legally bo done—R. v. Brcttcl, Ftoaling tho ether. Car. and M., GOO ; 2 Hale, P. C., 2 4G. Where a prisoner was tried and acquitted for uttering one forged note, and afterwards indicted for uttering another note, which he had uttered at the same time as a former one, Wood B. held that it could bo done—R. v. Brcttcl, ubi supra, per Crcsswell, J. Informal The Court will not reject a plea of autrefois convict on jilea not rejected. account of the informal manner in which it is handed in by the prisoner, but will assign counsel to put it into a formal shape, and postpone the trial to give time for its preparation —R. v. Chamberlain, G C. and P., 93. Judgment Judgment for the Crown, on the issue being found against on. the defendant in cases of felony, is, that he answer over— R. v. Taylor, 3 B. and C., 514 ; but in cases of misdemeanor it is final for the Crown—Id. rieaofrtnfr?- By the Statute 233, sec. 359, no plea of attainder is Jois attaint. allowed, unless it be for the same offence as that charged in the information. In effect the plea of autrefois attaint is • at an end. Elea of A pardon may be pleaded in bar to the information ; or, ] '.U dull. after verdict, in arrest of judgment; or, after judgment, in DF.MURUEKS, ETC. 115 liar of execution. Hut if- must bo observed that it is nocos- saiy to plead it at the first opportunity the defendant may have of so doing. If, for instance, ho may have obtained a pardon before arraignment, and, instead of pleading it in bar, he plead the general issue, he shall be deemed to have waived the benefit of it, and cannot afterwards avail himself of it in arrest of judgment—Jl. v. Xorris, 1 lvol. Rep., -07. AVhat lias now been mentioned, however, relates to the Queen’s pardon only, for a statute pardon need not be pleaded—Fust., 18 ; Ftaunf., 108 a; 3 Inst., 281; unless then* he exceptions in it—2 Hale, 252; 3 Inst., t ; nor can the defendant lose the benefit of it by bis own lacin'*' or negligence—Arch., Crini. 1\, 1(5 cd., 131. Fee a plea of promise of pardon, Ilex v. Garslrfr, 2 Ad. and FI., 272. A plea in abatement consists of matter of defence which ri-'n in lifatcmcnt merely defeats the present proceeding, and does not, like a what. plea in bar, show the defendant to he lor ever discharged. It is founded cither on some defect apparent on the pro­ ceeding itself, or on some defect in matters of fact not so apparent, such as a misnomer of the defendant. Hut now the oGOtli section of the Statute 233’ has got rid n«-i* in nK'tf of all objections by way of misnomer, on the ground of for f-imiMl tl.-fc-on want of addition, or wrong addition, by enacting that no 111* f.UM* of information shall be abated by reason of any dilatory plea thntion informa­ of misnomer, or of want of addition or wrong addition. nWhShod. A plea in abatement must be pleaded before, any plea in Tiim* of bar—2 Hale, 175 ; Fust., 1G. Hut there are instances of the l-lon-lijn'. withdrawal of the plea of “not guilty” being allowed, as a matter of favor, niter being recorded, and a plea to the jurisdiction permitted in Kinloelcs Case, Host,., 1G; but permission so to do, to enable the prisoner to demur to the information, was refuses! in Juy. v. Drovai, 1 I)cn.,C. C. 231. In felory, a defendant- may, as already stated, plead over Flrading <»\

J 2 I1G INSANITY.

CHAPTER XXVI.

INSANITY.

Not guilty Under the plea of “not guilty,” evidence is frequently nutliriont to given, on behalf of the accused, that he was insane at the cover. time he committed the offence charged. ElTeet Of The effect of infinity, where the deprivation of the iir-triity. understanding and memory is total, lixed, and permanent, is to excuse all acts. So, likewise, a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same degree with one whose disorder is fixed and permanent—Brrcrh ifs Case, Co., 125 ; Co. Lift., 217 ; 1 Hale, SI. Rut the difficulty in these cases is, to distinguish between a total aberration of intellect and a partial or temporary delusion merely, notwithstanding which the patient may be capable of discerning right from wrong; in which case lie will be guilty in the eye of the law, and amenable to punishment. “ Partial insanity,” says Lord Ilale, “ is the condition of many, especially of melancholy “ persons, who generally discover their defects in excessive “ fear and grief, and yet are not wholly destitute of tho “use of reason; and this partial insanity seems not to “ excuse them in the commission of any crime ”—1 Hale, MO. “ Doubtless/’ he adds, “most persons that are felons of them- “ selves, and others, are under a degree of partial insanity “ when they commit these olfenccs. It is very difficult to “ define the invisible line that divides perfect from partial “ insanity ; but it must rest upon circumstances duly to be “weighed and considered, both by the judge and the jury, “lest, on the one side, there be a kind of inhumanity “towards the defects of human nature, or, on the other side, “ too great an indulgence given to great crimes.” He con­ cludes by suggesting, as the best measure, that such a person as, labouring under melancholy distempers, hath yet as great understanding as ordinarily a child of fourteen years hath, is such a person as can be guilty of treason or felony— 1 Hale, MO, 412. Trnry, J., ii It is said, per Tracy, J., in 11. v. Arnold, 1G Howells, St, Jlrx v. Arnold, Tri., 701, that it is not every frantic and idle humour of a man that will exempt him from justice, and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear before a man is allowed such an exemption ; therefore it is not every kind of frantic humour, or something unaccountable in a man’s actions, that INSANITY. 117 points him out to bo such a madman as lobe exempted from punishment. It must be a man that is totally deprived of his understanding and memory, and doth not know what he. is doing no more than an infant, than a brute or a wild beast; such a one is never tin* object of punishment. And per Yorke, solicitor-general in Lord Fcrni's* Ouse, r..a- 19 Howell's St. Tri., 918, if there be a total want of reason, it will acquit the prisoner; if there he a total, permanent want of it when the offence was committed, it will acquit the prisoner; but if there be only a partial decree of insanity, mixed with a partied degree of reason—not a full and complete use of reason, hut (as Lord Hale carefully and cmphatieally expresses himself) a competent, use of it, sutli- cient to have restrained those pa^ions which produced the crime ; if there be thought and design, a, faculty to distin­ guish the nature of actions, to discern the difference between moral good and evil—then, upon the fact of tho. offence, the judgment of the Lins’ must take place. Where, on an information for murder, it appeared that the defendant laboured under a notion that flu*, inhabitants of Hadloigh, and particularly the deceased, were continually issuing warrants against him, with intent to deprive him of his life and liberty, Lord Lyndhurst, (MI., told tho jury that, T^r.u.vn.i- “they must he satisfied, before they could acquit t.he “ prisoner on the ground of insanity, that he did not know “when he committed the act what the (‘licet of it, if fatal, “ would ho with reference to tin* crime of* murder. The “question was, did he know that ho was committing an

“(silence against the laws of God and nature”—1L v. Oj/urd, o C. and P., 1 (IS. In 1L ?\ Oxford, for shooting at tho Queen, Lord Denman, nr.i Dm- C.J., told the jury : “ Persons prhnd fnvn must be taken fvf'ni'* “ to be of hound mind till the contrary is shown. Put a “ person may commit a criminal act, and not be responsible. “II* some (suit rolling disease was, in truth, the acting power “within him which he could not resist, then he will not be “ responsible. It is not more important than diflicult to lay “down the. rule by which you are to be governed.” On the part of the defence, it was contended that the prisoner was

“/toil Coutjto'i no-nits, that is (as it has been said), unable to “ distinguish right from wrong; or, in other words, that “from the effects <»f\a diseased mind, lie did not know at the “ time that the act he did was wrong. Something has been “said about the power to contract and to make a will ; but “ 1 think that those things do not supply any test, The ns INSANITY. “ question is, whether the prisoner was labouring under that “ species of insanity which satisfies you that lie was quite “ unaware of the nature, character, and consequences of the “act lie was committing; or, in other words, whether he “was under the influence of a diseased mind, and was really “unconscious, at the time he was committing the act, that “ it was a crime”—Rv

“ explanations as the circumstances of each particular case “ may require.” To the fourth question : “The answer to this question “must of course depend on the nature of the delusion ; luit “ making the same assumption as we did before, that lie “labours under such partial delusion only, and is not in “ other respects insane, we thunk lie must, be considered in “ the same situation as to responsibility, as if the facts with “respect to which tho delusion exists were real. Forex- “ ample, if under the iniluenco of his delusion he supposes “ another man to be in the act of attempting to take away “his life, and lie kills that man, as lie supposes in self- “ defence, he would be exempt from punishment. If his “ delusion was that the deceased had indicted a serious injury “ to his character and fortune, and he killed him in revenge “ for such supposed injury, he would he liable to punishment.” And to the last question : “We think the medical man, “ under the circumstances supposed, cannot in strictness be “ asked his opinion in the terms above stated, because each of “ those questions involves the determination of the truth of “ the facts deposed to, which it is for the jury to decide ; and “the questions are not mere questions upon a matter of “science, in which case such evidence is admissible. Ful “ where the facts are admitted or not disputed, and the ques- “ tion becomes substantially one of science only, it may “ be convenient to allow the question to be put in that general “form, though the same cannot be insisted on as a matter “ of right,” Knife T \ in It will be useful to notice the cases which have occurred Ji. V. L since this decision—In JL t\ Legion, 1 Cox, C. (A, 1 11), Folio 13. said, “Where a prisoner sets up insanity as a, ground of “ defence, one cardinal rule is, that the burden of proving his “ innocence on that ground rests on the party accused. Tho “ question in such a case for tin; jury is not whether tho “ prisoner was of sound mind, but whether he had made “ out to their satisfaction that he was not of sound mind. “ Tho jury may come to a conclusion on this point from “ the conduct and acts of the accused, shortly before and “ down to the commission of the alleged crime.” His lord­ ship also laid down that although insanity on one point—for instance, a delusion as to property—will not exempt a. party from responsibility, the fact is not immaterial in considering his responsibility at another time, and on another subject. The want of motive for the commission of the crime, and its being committed under circumstances which render INSANITY. 1121

detection inevitable*, are important points fur Uie considera­ tion of the, jury, when coupled with evidence of insanity on any particular point. His lordship refused to allow a witness to be ashed whether, in his opinion, the prisoner was capable of judging between right and wrong.

On a trial for murder, before Alderson If, evidence was AM. rrii I’, tn 11. v, called on the prisoner's behalf to prove his insanity. A phy­ J. sician, who had been in Court during the whole trial, was then called on tin* part of the prosecution, and asked whe­ ther, having heard the whole evidence, he was of opinion that the prisoner, at the time he committed the alleged act, was of unsound mind. 11 is lordship, notwithstanding the opinion of the judges in R. r. J/‘A\r/g//<7on, 1 C. and K, loO, held, that such a queMion ought imt to be put; but that the proper mode of examination was to take partieular iiiets, and assuming them to bo true, to a: k the witness whe­ ther, in his judgment, they were indicative of insanity on the part of the prisoner at the time the alleged act was

committed—R. r. Fautci*, 4* Cox’s, C. C., a 7. Parke, if, iVtib' 11. in in one. case held, that a men* uncontrollable impulse of the v. i.u!t mind, co-exi>ting with the full pt'»iss‘oii of the jv/noning powers, will not warrant an acquittal on the ground of infinity, the (jiuetion for the jury being whether the pri­ soner, at thi* time lie committed the act, knew the character and nature of the act, and that it was a wrongful one—11. c. Ration, d Cox, C. C., 27o. Tho other principal eases in which the question as to what< Mlrr j ? in • amount of insanity would excuse a crime, are thorn of-—R. ‘ v. Ratio Colli^m on Lunacy, 177 ; R. v. llnvit r, id, b7M ; R. (\ lid 11 tit, iil iion f ,‘j Jb and lb, 772 ; R. r. i\nrtih jf, d Jb and lb, Sd,0 ; R. v. f lb and lb, 801 ; ii. i\ L< oojh, 1 lb and lb, Ola. It is observed in 1 Ku: sell on Crimea and Misdemeanors, by .Mr. Greaves, 1th edit., 2S, that the application of the, rules and principles laid clown in these eases to each particular ease, as it may arise, will liecevarily, in many instances, be attended with dilliculty ; mom especially with regard to the tine interpretation of the expressions which state that the prCmicr, in order to be a proper subject of exemption from punishment on tin? ground of insanity, should appear to have been unable to dCtingui, h right from wrong, or to d ]*-<■< rn that he was doing a wrong act, or should appear to have been “ totally deprived of his under­ standing and memory as even in lladlield’s ease, his 122 INSANITY. expressions, when apprehended, that “ho was tired of life, that he “ wanted to get rid of it,” and that “ he did not intend any tiling against the life of the King, but he knew that the attempt only would answer his purpose,” seem to show that he must have been aware that he was doing a wrong act, though the degree of his criminality might have been but imperfectly presented to him through the morbid delusion by which his senses and understanding were affected. But it is clear that idle and frantic humours, actions occasionally unaccountable and extraordinary, mere dejection of spirits, or even such insanity as will sustain a commission of lunacy, will not be sufficient to exempt a person from punishment who lias committed a criminal act. And it seems that, though, if there be a total permanent want of reason, or if there be a total temporary want of it when the offence was committed, the prisoner will be entitled to an acquittal; yet, if there be a partial degree of reason, a competent use of it, sufficient to have restrained those passions which produced the crime ; if there be thought and design, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil ; then, upon the fact of the offence proved, the judg­ ment of the law must take place — Per York, Solicitor- General, ubi supra ; ct per Lawrence J.} It. v. Allen, Stafford Lent Assizes, 1807, M.S. jury tr> Whether the prisoner were sane or insane at the time the in sanity? act was committed, is a question of fact triable by the jury —It. v. Ilasiccll, It. and It., -1 58. Me«lieal wit- On a trial, where the defence is insanity, a witness of nt'HS‘ medical skill may be asked whether such and such appear­ ances (proved by the other witnesses) are symptoms of insanity. But it appears that he cannot be asked whether, from the other testimony given in the case, the act as to which the prisoner wtis charged, was an act of insanity ; as that is the very point to be decided by the jury—It. v. Wright, 11. and It., 45G ; It. v. Scarlc, 1 51. and Bob. 75 ; It. v. Frances, I- Cox, C. C. 57. A prisoner was defended by counsel, who set up for him the defence of insanity. The prisoner, however, objected to such a defence, asserting that he was not insane ; and he was allowed by the judge to suggest questions, to be put by the learned judge to the witnesses for the prosecution, to negative the supposition that lie was insane ; and the judge, also, at the request of the prisoner, allowed additional wit­ nesses to be called on his behalf for the same purpose. They, INSANITY. 123 however, foiled in showing that the defence was an incorrect one, and, on the contrary, their evidence tended to establish it more, clearly ; and the prisoner was acquitted on the ground of insanity—A\ ?\ iVt. in the trial takes place, must order him to be kept in strict rif-lody. custody, in such manner as to the Court shall seem fit, until the Governors pleasure lie known; and the Governor may order the confinement of such person during pleasure— Statute 233, see. 30G. " YOuto rm And if any person informed against for any indictable ri'VU’-.'d mi offence is insane, and upon arraignment is found so to he by arrnipiin.’nt is found t » a jury lawfully impanncllcd for that purpose (that is by a he ilO-ille, the Court to jury returned by the sheriff instaiitcr, in the nature of an oidi i him to inquest of oliice), so that he cannot lie fried upon such he lo pt, in C llhto.lv t.il information, or if upon the trial of any person so informed tin* Im.j’m against he appear to the jury charged with such information, Mll<* ho to be insane, the Court may order that finding to be recorded, Know n. and that he he kept in custody until the Governor's pleasure Th<* him mi be known. So, likewise, if any person charged with any ft I'd. indictable offence lie biought up to be discharged for want of prosecution, and appear to be insane, the Court may order a juiy to be impanncllcd to try the sanity of such person, and if the jury lind him to be insane, may (mho* him to bo kept in strict custody, in like manner, until the Governors pleasure bo known —Statute 233, sec. 338 ; see Ii, v, PritcltarJ, 7 C. and P., 803; li. v. Goode, 7 Ad. and Ellis, 33G. The course to be pursued in case a person imprisoned rri'MTier* h.-'-oTint;;; under any sentence, or under any other than civil process, iirn.no. appears to bo insane is dclincd by Statute 300, see. 0. A grand jury have no authority to ignore a hill upon the ground of insanity. It is their duty to find the. hill, and then the Court, either on arraignment or trial, may order the detention of the prisoner during the pleasure of the Crown—R, v. IIvd

CIIAPTEtt XXVII.

THE JURY.

Common All issues joined upon any information are l»v the lbth jury. section of The Juries Statute, 1805, No. '27- (except as therein mentioned), to be tried by a jury of twelve men taken from the Common Jury Book of the jury district in which the trial shall bo had. fc’l'i-'oi. J j urv. And by the 17th section of the same Statute the Supreme Court, on application to be made on behalf of Her Majesty, or by or on behalf of any defendant or person accused of any indictable ollence, may order such issues to be tried by a, special jury of twelve men. The qualification and disqualifications of jurors are de­ fined by the -lid and 1th sections. Toi.mum i'x- The undermentioned persons are, by the 5th section, om]>toil from nor\ iim' on exempt from serving on juries : Executive councillors— juries. members of the Legislature—all judges of courts—chairmen of general sessions — stipendiary magistrates — ollieial assignees in insolvency—clergymen in holy orders—per­ sons who teach, or preach, in any religious congregation, and follow no secular occupation except that of schoolmaster— schoolmasters—managers, cashiers, accountants and tellers of banks—practising barristers-at-law—admitted and practising attorneys, solicitors, and proctors and conveyancers—oflieers and servants of courts exercising the duties of their offices or places—coroners, gaolers, and keepers of houses of cor­ rection—duly qualified and practising physicians, surgeons, and medical practitioners—officers of the army and navy on full pay—members of any Corps of volunteei s, w hom the Governor and Council shall in any year release—masters of vessels actually trading—licensed pilots, officers of customs and police ■— sheriffs and bailiffs, and their oflieers and assistants—constables and all persons holding any office or employment in or under any department of the public service—the mayor, aldermen, councillors, and town clerk, and other officers and servants of any Municipal Corpora­ tion—household officers and servants of the Governor— postmasters—and clerics of Petty Sessions—and inspectors of schools. Jury dis- The bth section prescribes the jury districts, and the 7th, tiicU. 8th, 1)111, l()th, 11th, 12th, and loth sections point out the mode of preparing the jury lists, returning the names of Tin: juiiv. 123

persons qualified as jurors, the form of jury boxes, aiul making up tbe jury books. The 11th section provides for jury lists for new court Jr.rv towns. dury pivoepK in tlie form prescribed by the Statute, are i^ued by the proper officer of tin.* Supreme Court, or of iho Court oi (leneral Sessions of tlie Peace from time to tilin', and as often as occasion shall demand. These must, be delivered to the ^heritf, or other person to whom the same are directed, ten days before they are, returnable, and in ease a common jury is required, the precept. >hall command the sheriff to summon not le-s than thirty-six men, and in ease of a special jury not 1ms than twenty-four men. Provision is also made that the. Supreme' Court, and all Courts of Assize*, oyer ami terminer, and gaol delivery, and Courts of Ceneral Sessions of the Peace, shall respectively have and exercise tlie same power and authority as they have hereto­ fore. had -and exercised in making any award or order, orally or otherwise, for the return of a jury for the triad of any issue before any of sueli courts respectively ; or for the amending or enlarging any such panel as hereinafter mentioned, and the return to every such award or order shall be made in the maimer heretofore used and accustomed in such Courts respectively in Kngland, save; and except that the jurors so returned shall be quulilied according to this Act —See. 21. The 23rd ami 2lth sections of the same Statute, point, out so..tu «.r the course to be pursued by the sheriff in selecting ami summoning the jurors. And tin: 23th >ection provides that three days hefore the precept is returnable a copy of the panel shall be made* by tho sheriff, and shall during such im.-i to m throe days be kept in Ins office for inspection, and a copy <»f such panel shall be delivered by the sheriff to any pci son , requiring (lie same on payment, of one shilling for a panel of am* j.v twelve men, and two shillings for a panel of more than that tA'.dyC number of men. :i"'’ i"riM"- Upon tho day and at the place named in the precept for on - names, place's of abode, and addition of the jurors written 1 thereon, to the proper ofiicer, who thereupon in open Court puts the pieces of card together in a box provided for that purpose—>S e. 20. By the 30th section, the proper ollieer upon delivery of .jury ru the panel to him shall, in open Court, call aloud the names'11 ‘ 126 Tin: jury. of the jurors on tlie said panel one after another, and such of them as shall then or at any time thereafter answer to their mimes, may he sworn in open Court. For the form of oath sec ante, page 50. Sworn mire. When a juror is once sworn, lie need not be resworn on each trial, unless the Crown or the accused shall so require, when, and as each juror is so sworn, the ollieer of the Court is to make a minute thereof in the panel, fm% section 31 of the same Statute, if a juror refuse or be iCitiwn'iu- unwilling, from alleged conscientious motives, to be sworn, o!ith! °f then the Court may permit such juror to make his solemn affirmation or declaration in the following form :— 1 rl f “I, A. B., do solemnly sincerely and truly affirm and “ declare that the taking of an oath is according “to my religious belief unlawful ; and I do also “solemnly sincere!}' and truly atlirm and declare “ that I will well and truly try,” kc. i,:ii- The 33rd section of the same Statute prescribes the j ary at, trini. manner of balloting for a jury, and directs the proper officer, in open Court, to draw out of the box twelve of the cards, one after another, and if any of the men whoso names shall be so drawn shall not appear, or shall be challenged and set aside, then such further number, until tlie full number of jurors be drawn who shall appear, and after all just causes of challenge allowed, shall remain as fair and indifferent; and the twelve men so first drawn and appearing and approved as indifferent, shall he the jury to try the said issue, and their names shall be kept apart by themselves until such jury shall liave given in their verdict, and the same shall have been recorded, or until they shall, by leave of the Court, be discharged ; and then the same names shall be returned to the box, there to be kept with the other names remaining at that time undrawn, and so tofic# quoties as long as any issue remains to be tried. Taos. If a full number of jurors shall not appear, or where, after appearance by challenge of any of the parties the inquest is likely to remain untaken for default of jurors, every Court may, upon request made for the Queen, com­ mand the sheriff to name and appoint so many of such other able men of the jury district then present as shall make up a full jury, and the sheriff at such command shall return such men duly qualified as shall be present, or can be found, to serve on such jury, and shall add and annex their names to the said panel—Sec. 35. THE JURY. 127 IJy the Mill section of the same Statute, no juror rum- Attorn!.™™ moned shall ho compelled to attend any trial for more than ['rjuVdj!«.Iity three consecutive days of business, unless on the last, of such days any trial which shall have been commenced shall not have been concluded ; or unless tho Court or presiding judge shall otherwise order or direct. This seetion also provides, that in case any person mimed <\.nitr.i.iy as a juror shall not attend, or being thrice called shall not L“t‘Jul“1'4' answer to his name, or, if a talesman, after being called shall be present but not appear, or after appearance shall wilfully withdraw himself from the presence of tho Court, tho Court shall set such lino upon every such man or tales­ man so making default as tlie Court may think lit, and also a line of £10, and as much more as the Court may think proper, upon any viewer or inspector who, having been summoned, shall make delimit. On the prayer of any alien informed against fov felony, the Jury «v sheriff sha.ll by Command of the Court return one half of the {’T/v£!w jury a competent number of aliens, if so many there be in the town or place where the trial is had ; and if not, then so man}' aliens as shall be found in the same town or place if any. And no such alien juror shall be challenged for want of freehold, or of any other qualification required by this Act, but may be challenged for any other cause —See. 38. " This right, it will be observed, is limited to cases of felony. Limii.'.] to It does not exist in cases of high treason, aliens being fXnyf improper judges of the broach of allegiance ; 4 l>h>. Corn. 352 ; though the Crown may make a special grant to an alien to he tried for treason, by a jury whereof one-half shall be foreigners—2 Hawk, o. 43, s. 37. It is not necessary that Kmhntu the alien jurors should bo natives of the country to which the prisoner alleges himself to belong; Hales Sum. 2(11 ; °’aiilg as . * /• i * i • • . - , ; acaU'-a. though some ot the ancient awards ot mure ordered that the aliens should be of the countiy of winch lie appeared to be a native. An alien woman, who marries a Dritish subject, is by Alim virtue of tho Stat. 7 and 8 Vic.,c. GO, s. 10, naturalized ; and rouTl'1'™” is not, therefore, entitled to a jury tie mcJtdofe linyiuv, li. v. Maun in y, 1 Den. C. C., 1G7. The proper time for an alien ^ ^ to claim the benefit is vyon jilcttdhiy, at the arraignment; claim tlm and the formal course of proceeding would be to enter a suggestion on the record stating that the prisoner at the bar is an alien, and praying a jury according to tlie statute ; the cn rL ’11 entry of which is in tlie following form— 12S THE JURY.

Form of. “And forthwith being demanded concerning the “ premises in the said information above specified, “ and charged upon him, G. I)., how he will acquit “himself thereof, he saith that he is not guilty “thereof, and theieof for good or evil, lie puts “himself, etc. And A. B.} etc., who prosecutes for “ our said Lady the Queen in this behalf doth the “ like. And thereupon the said C. I), says that he “is an alien, and was born at (ntaiiny the jdace), “under the allegiance of (.sfat i raj the rocereijn), “ and he prays tlie writ of our said Lady the Queen “ to cause to come here twelve, etc., whereof one “ half to be of natives, the other of aliens, to try the “ issue of the said plea, according to the form of the “Statute in such case made and provided. And it “ is granted to him, etc. There tore, according to “ the Statute aforesaid, it is commanded to the “sheriff that he cause to come here, etc., twelve, “etc., whereof half to he natives, tho other half to “ be aliens, by whom, etc., and because neither, etc., “ to recognise, etc., because as well, etc.” See Dyer, 1 14 b* 5 Fist. Entr. 201< ; 2 Hawk c. 43, s. 3t ; 2 Hale, 271; It r. IB Hon, 1 W. Lla. 517, and cases cited; It r. Mannt nj, 1 Den. C. C., 407. Challenging It is said that an alien prisoner may challenge the array if array. such a jury be not returned, but this seems questionable. If lie neglect to demand a jury dr. wedii fate until after tho jury are empannelled, he cannot then or afterwards take exception to tlie proceedings—Cro. Lliz. 800, 1 Keb. 517, Lae. Ab. Juries (R) 8 ; 2 Hale, 271 ; 1 Dy., 28 a., 2 I)y. 1 1 1-1 15 a.

When alien Whether an alien who is indicted jointly witli a Lritish jointly in- «li( ted u itil subject for a felony thereby loses the privilege of being tried a ISiitOh by a jury do riirdicft.de Itnjuaj Qv.ccrc—See Surend^cits subject. Case, 14 St. Tri. 559 ; Barrens Cane, Moore 557 ; AVg. v. Mann in j, 1 Den. C. C., 407. Crown com­ Where a jury da mediefaie is claimed by a foreigner, the pelled to show cause Crown is compelled to show cause of challenge to a foreign of challenge juror after the panel has been called over, notwithstanding to an alien juror. that the panel has not been exhausted by giving formal challenges—It v. Giorjctti, 4 F. and F. 540. Fa""port not The mere production of a passport found on a prisoner, evidence of being ail which is proved to be granted by the authorities of a foreign alien. state to natural-born subjects only, is not evidence of bis being an alien—Ref/, v. Burke, 11, Cox C. C. 138. Tin: juiiv. li!!)

WIkti tlie trial of an accusal person is to be proceeded with, rain, • the associate informs him of his riylitto challenyo the jurors. r",;? ( As to which see ante, paye 50). And hereupon is the proper time for the accused to exercise his riyht of chttllnnjr or ex­ ception to thi‘ jurors returned to pass upon his trial, either the whole panel or any individual of the panel. Challenges are of two kinds : Tw.n.in.Ouf 1st. To the array, hy which is meant the whole jury' 1 ! ' as it stands arrayed in the panel. i!nd. To the polls, hy which are meant the several parti­ cular persons or heads in the array—1 IuM.,150-15S. Challenge to the array is in respect to the partiality or Toth-.urn default of the sheriff, coroner, or other ollieer who math? the return ; and this is two-fold. 1. Prineipal challenge to the array; which, if it he made? ronTu yood, is a sufficient cause, ot* exemption without leaving any to tiling to the judgment of the triers. Causes of challenge of this sort are such as these : if the e.ui, sheritf is the actual prosecutor or person ayyrieved—1L t\ S!t( jijxinl, 1 Leach, 111); It. r. Edmond*, 4 L. and Aid., 1-71 ; if the sheriff or other otlieer he of kindred or aflinity to the plnintitr or defendant if the aflinity continue. If any one or more of the jury he returned at the nomination of tho party, plaintiff, or defendant, the whole array shall he quashed. ]f the plaintiff or defendant have an action of battery ayaiiwt tlie sheriff, or the sheriff ayainsL either party ; this is a yood cause, of challenyo. So, if the plaintiff or defendant have an action of debt nyainst cither party ; or if the sheriff have parcel of tho. land depending on tho same title ; or if the sherilf, or his bailiff which returned the .jury, be under the distress of either party ; or tho sheriff or his bailiff have any pecuniary interest in the ('vent, or be either of counsel, attorney, ollieer, or servant of either party, or arbitrator in the same matter—Lae. Abr. Juries (E.), or a, subscriber to a, society who arc tlie prose­ cutors—li. r. Dnlhi/, 1 C. and K., 2JS. The sheriff's ofiieer had neylccted to summon one of the twenty-four special jurymen returned on the panel; held that, this was no yroiind of challenyo to the array for uuindiffer- eney on the pait of the sheriff—JL v. Edmund*, 4 L. and AM., 471. Nor is it of it-<*]f* any loyal cam e of challenyo to the array that the sheriff has returned a laryvr proportion of tlie panel of a different, reliyion from th<* defendant — 7o . K LTD tiie .Turn'. Where a sul>jcct may challenge the array for unindilfer- eray, there the Queen being a party, may also challenge for the same cause—1 Inst., 15(>. Tlie array challenged on both sides shall be (plashed— 1 Inst., lob. " Cli.illrnj p » 2. Challenge to the arnry for favour is 'where tho ground tlio .ilT.lj l.ive.ir. ’ of partiality is less apparent and direct ; as where one of the parties is tenant to the sherill* or the shcriif and one of the parties are united in the same ollice, or where a relation­ ship exists between the children of one of the parties and of the sherill or ollieer; or, where the sherilf has an action of debt depending against one of tho parties—Co. Litt., ir>(ia. ‘ ‘ Where cause exists for a challenge to the array on the ground of relationship or otherwise, the party liable to the objection may himself suggest it to the Court, in order to prevent tlie delay which the challenge would occasion, and pray that tho venire may be awarded to the coroners or elisors as the case may be. If the other party admits the fact, and agrees to the prayer, the venire will at once be so awarded. If lie refuses, denying tlie existence of the cause of challenge, lie cannot afterwards avail himself of it— Co. Litt., 157 b ; 3 Dyer, 3(i7a ; 5 Rep., 3(>, 13. Tlie Queen may challenge the array for favour—I Inst., 15(1. MionM 1...■in A challenge to the array must be formally tendered before w i it i 11•' 11 forr jury ° the jury are empannelled, and in writing, so that it may be sworn. put upon tlie record, and the other party may demur or counterplead to it—11 runslill v. Gihy 2 51. and Scott, 41 ; J) Ling., L‘>, S. C. ; I\. v. Edmond*, 4 L. and Aid., 471 ; Mayor oj Carrruirthcn v. Evan*, 10 M. and W., 274.

Form of A form of it is as follows :— < ll.'llIi'Ii.Uii the ;u i.iy.. “And now at this day come, as well the said A. 71, “ who for our said Lady the Queen prosecutes in “this behalf, as the said G. D. in his own proper “person, and the jury therefore empannelled lil:e- “ wise come ; and therefore the said G. Ih chal­ lenges the array of the said panel, because “ lie says that the said panel was arrayed and “returned by E. F., Esquire, now and at the “time of the making of the array aforesaid sheriff 4 of the colony of Victoria, which said sheriff is a “ kinsman of the said C. D.t to wit (setting oat the “ mode of rdaiionvldp), and tins lie is ready to Tin: ,in:v. i: > i “verify; whereupon lie prays judgment, and that “ tho said panel may be (piadud. Which said “challenge hy and triers thereof, “ elm .on and sworn, is found true, and therefore “let the panel aforesaid he hed and removed, “ etc.” The eround of objection must ho spoeilieally stated in tlie (a>.n„i.f challenyo ; for a challenge merely statiny that the ; ],< riITh,u j o,.n has not chosen the panel indilleivntly and impartially as he "j";‘;j‘'n-v ouyht to have done, and that the panel is not an indifferent panel is had, ns boiim' too oeiiend—r. IhufL«-.»•, I C. and K.f 2.r>. ° ° " ' The person challenging the array must he prepared A:s«i i ruwi strictly to prove the cans.'—It. ?\ !>■!>< pjxn'J, 1 Leach, 101 ; 11. v. idulfn,}, S If and (A, j-17 ; S. C., com. I!, e. /)(spar. The opposite party may either plead to the challenge <>jv< -a.-* traversing the cause of challenyo alloyed, or demur to it lor insutlieicncy. In the latter ea>e the. party challenging vo joins in the demurrer, and the matter is determined b}' tho Court. Tlie demurrer and joinder mav he in the following r.-nimr form:— L " ’ ‘i"!,mn,r “And tho said A . />. says, that the said challenge of “ the said F. F. to the array of the panel a fore-aid, “is not sufficient in law to ipiasdi the array of tin? “panel aforesaid, and that there, is no neee.sity for “ him, the said A. nor is he ohliyed hy the law “ of the land to answer to the said challenge, in “ manner and foi m as it is above alleged; wherc- “ lore lie jirays judgment, and that the array of “ (lie said panel may he atlirmrd,” kc. “And the said F. F. says, that he hath above alleged r. n.M.r “ Mitlieient matter in law in the said challenye hy '' “ liim above made to the array of the panel afore- “ said, to (plash the array of the said panel, which “lie the said F. F. is ready to verify, which said “ matter the said A. B. does not deny, nor in any “manner answer thereto ; whereibn* the said K.F. “as before prays judgment, and that the array of “ the said panel may be rpiahed,” tVc. Incase the challenge is overruled, the judgment ; hould if r.v. nui, i lie entered oil the original record—LI .a v. AVmomAs, I* .!> !'JVu,ifouf' and Aid. 171. K 2 132 THE JURY.

If challenge Jiluailcil tuo If tho party pleads to tlie challenge, two triers are (in triers ;ip- the ease at least of a challenge for favour, aiul also it would I'oiutetl. seem in tlie cose of a principal challenge, unless the fact he admitted or apparent) appointed hy the Court, who are sworn and charged to try whether the array he an impartial or a favorable one—O'Brien v. lug., 2 House Lords Cases, 405). ‘ Gen.r.illy These triers are generally two of the jurymen returned. juryineii. The Court may, however, in its discretion refer the trial to two attorneys, or any other two indifferent persons—2 Hale, 275 ; 4 Bla. Com., 853 ; 2 Bolls Bopts., 5G8. If they find in favor of the challenge, a new venire is awarded to the coroner, or, if lie he interested, to the elisors—1 Inst., 158 ; It. v. I)oJhy, 2 R and C., 101. In this Proceeding! case, tho defendant being indicted for a seditious libel, he thoreon. challenged the array, on the ground that the prosecution was instituted by an association called the Constitutional Association ; and that one of the sheriffs who returned the jury was one of the Association. The counsel for the prosecution thereupon took issue. The Chief Justice then appointed two triers to try the issue, who were accordingly sworn. The counsel for the defendant first addressed these triers, and called a witness, who proved that the sheriff named was one of the subscribers to the Association. The counsel for the prosecution then addressed the triers, and called a witness to prove that the sheriff had ceased to he a subscriber to or a member of the Association before the return of tho jury process, but failed in proving it for want of the letter by which the sheriff had withdrawn himself from it. The triers were then addressed by the counsel for the defendant in reply. The Chief Justice summed up ; the triers found in favour of the challenge, and the cause was adjourned. If the triers find against the challenge, the trial proceeds as if no such challenge had been made ; but the accused may afterwards still have his challenges to the polls ; i. c., lie may object to each juryman as lie is about to take his seat. The improper disallowance of a challenge in the case of misdemeanors is ground, not for a new trial, but for a venire dc novo—It. v. Edmond*, 4 R and Aid., 471. To tho polls. Challenges to the polls are threefold:— TYn-optory 1. Peremptory. This is so called because a person may ch iih ie:-. challenge peremptorily upon his own dislike, without showing any cause. Tin; junv. 1«)0-I nn Ihis peremptory challenge si mil not lie allowed to the xoroinp>toriQy twenty jurymen, and ah i, overy peremptory challenge above twenty shall he void, and JAVuIl.vr* the trial proceed as ii* no such challenge had been made ; '““I* and every challenge must he made as tho juror comes to v/ii.-n t-» take his seat, and heiore lie takes it. Such challenges may 11 ' be made verbally. *’ A peremptory challenge is not allowed on the trial of x,.t mi-mu.i collateral issues—Fost. 12. 1" rU It several persons are tried together, each lias a right to vvim^ the full number of his challenges; hut if they join in their l challenges they can only challenge the limited number in the whole—It. r. Char nock, 3 Salk., 81 ; and if they refuse to join, the Crown has the right of trying each or any number of them less than the whole, separately from the others, so as to prevent the delay which might arise, from the whole panel being exhausted hy the challenges—Fost. 100, Co. Litt,, loG ; 2Hale, 2GS. " The accused must take all peremptory challenges himself, rya vu,.i even in cases wherein he mayliavecounsel—2 1 Iawk.,e. 13, s. I. 111 A challenge of a juror may he allowed after ho is sworn----wgrjur-r lb j\ v. Flint,, 3 Cox, C. C, (JO. n A prisoner in a case of felony, having challenged twenty a., jurors peremptorily, cannot withdraw one. of tho, challenges Hi.‘A.-f to challenge another juror instead of one that he had pro- viously challenged—1 t. r. Parry, 7 C. and P., 830. ;g;;(’g Where, on a trial for felony, the jury-panel contained the U;ii„„ jillo|. names of J. T. and IP T. ; and when the name of ./. T. was ggg-g called, a person supposed to be J. T. went, into the box and o.iii.'n;-.. was sworn without objection; and the prisoner having been convicted, it was discovered the next day that IF. T. had hy mistake answered to the name of J. rl\y and was really the person who had served on the jury ; it was held by a majority of the judges that this was not a mis-trial, but only ground of challenge—It, v. Mcllor, 1 Dear, and P., U. C\, 4GS, see 12, Fast, 231 n. 2. Principal challenge to the polls is where cause is iv.iri;,,] shewn, but which if found true, stand:; sidlicient of itself without leaving anything to the triers—they are such as these :— A peer is not to be sworn on juries for the trial of a com- rur„u«.ni. moner; and lie may he challenged hy either party, or may lot ' Till: JURY.

bring a writ of privilege for his discharge—Co. Litt. 150 b ; 2 Ilawk, c. 4o, s. 11, and Ld. Hradlrys (Ja?r, R. and R. 117. Aii.-muv, i»- Alienage, 11. v. Sedan, 8. R. and C. 117—infancy—old age, caatJ.10’’ or a deficiency in the requisite (pialifications (but see Stat. 272, sec. o t), are causes of challenge, and a juror may challenge Junior If by slating that he is 'not qvaUfud and he may be examined on oath as to his qualification, 4 Ilargr. St. Trial 7*10 ; llvg. v. Gcach, 0 0. and 1\ -11)!). Kimltvd or If tlie juror be of blood or kindred to either party, or I’arii!iTity. in his cmplojunent, or is interested in the event, etc., in short, any such presumed partiality as would be a good ground for a principal challenge to the array in the case of the sheriff, will be also a cause of principal challenge to an individual juryman. Where the partiality is made apparent to the satisfaction of the Court, the challenge is at once allowed and or the juror set aside. So where an actual partiality is shown i>u‘judiccj. cx]s^ ov q* q,e juror ]1:ls expressed a desire as to the result of the triad, or an opinion as to the guilt or innocence of the accused. A juryman was set aside on the trial of O’Coighh/ and Others for treason, because on looking on the prisoners he had uttered the words “ dammed rascals ”—1< Cliitty Lla., Com. r''t°ii' u a* a person who has sat upon a former jury which jurur.,ytho convicted other defendants on the same indictment, is not therefore subject to challenge—Co. Litt. 157a; Lac. Abr. juries (E. 5); audit is not a ground of challenge that a juror . on other trials lias not found a verdict for the Crown—A\ v. Sav'don, 2 Lcwin, 117. At t or If the juror has been convicted or attainted of treason, lelony, perjury, conspiracy, or any other niiamous ollence, which is to be proved by the record of his conviction, he may be challenged, and even a pardon will not remove the objection—2 Ilale 277, Lac. Abr., juries (E. 2) Brute a v. Crashavj, 2 Bulstr. 151. ciiMiiorrm to ‘b Challenges to the polls for favor.—This is when either fav«jur.hf’r Pai'fy cannot take any principal challenge; but sheweth causes of favor which must be left to tho conscience and discretion of tlie triers upon hearing the evidence, to End him favorable or not favorable—and the causes of favor are infi­ nite ; for all of which the rule of law is, that he must stand indifferent, as he stands unsworn. Uodo of t.tk- No challenge can bo taken either to the array, or to the polls, until a full jury have appeared ; and therefore, where the challenges are taken previously, they are irregularly made—li. r. Rdmonds and Others 1 E. and Aid. 17L Tlir. JURY. in Challenges to the polls are generally made hy parol, ivr" although in strictness if any question is raised upon the validity of such a challenge, it must he entered in due form on the record. And the accused may in all eases for cause shewn, object to all or any of the jurors called after exhaust­ ing his peiemptory challenges of twenty. Tlie challenge either hy the Crown, or hy tho accused, must v;i.. n he “as the juror conn's to take his seat, and before he1,1""’ takes it” The Crown, however, is not even hound to show any cause i 1 OV\ ! | of challenge, until the panel 1ms been gone through, and it appears there will not ho jurors enough to try the accused, if the peremptory challenges are allowed to prevail ; 2 Hale 271 ; 2 Hawk c/ hd, s. H ; 1 ;i St. Tri., .T>7; Staunf. 1(12 ; Jl v. Porrif, 7 C. and 1\, SJKi; ./o';/, r. Porch, 1) C. and 1\, lfifi. And the panel is not to he considered as “being gone through” or “ perused” for this purpose, until it has been not only once, called over, hut cwhausled, that is, until according to the usual practice of the Court, and what may reasonably be. expected, the fact is ascertained that there are no more jurors in the panel whose attendance may he procured, and that, unless the Crown he put to show its cause of challenge, tin*, inquest would remain unfaken—Slat. 272, see. h(>, 7Ay/, e. J\I(t,iscl!t 1 ])» arsley, and ]>. o7o. The record stated that J. 1\ named on tho panel was called <;. n ,-u and elected, and tried, to the intent that In* should lie sworn, etc., and without being sworn, ho said that ho had con­ scientious scruples against capital punishment. The counsel for the Crown prayed that he should be ordered to “ .Hand by.” Tlie counsel for the prisoner prayed that tin*. Crown should assign cause of challenge. The judge told him that if ho felt that lie could not do his duty lie had 1 tetter with­ draw”, and thereupon it was ordered by the Court that he should “ stand by.” It was held that this was a challenge by the Crown without assigning cause, and then'fore the judge was right in ordering J. P. to “stand by.”—Jb. The usual, and in general the proper course where the! < < ir j 1 panel is exhausted by challenges of tlie accused and tho Crown, Ij,1 j',1 or of either before a full jury remains, i < to call over the panel1 '■L“* L again in the same order as before, but omitting tlnee peremptorily challenged by the accused, and then,as each juror then appears, whichever party challenges must idiew cause. If no .sufficient came of challenge he shown, the jurors are sworn—Itcy. v. Catch, !) C. and It, -1!)!). And no came of challenge to the jury, whether to the array or to the polls, 13G THE JUUY. can be taken, either in arrest of judgment or otherwise, alter the jury are sworn—11. r. Slupgxtrd, 1 Leach 111) ; 11. v. Sutton, 8 13. and C., -117. C.'i:xs in It may bo observed that there may be cases in which the \\ liivli the Court may Court, without challenge taken, may, and ought to excuse a rxi-us.5 a, juryman. juryman on the panel when called, if he is obviously untit to perform bis duty from physical or mental infirmity, or unable, from expressed uninditlerency—Mangel v. Reg., 8, E. and 1>. 54, 1 Dear, and 13. C. 0., 875. * Clnllemv* The challenge of him who first challenged shall be first limv t<> he tricl. tried—Tri. per pa is, 114. Hy two triors It is in the discretion of the Court bow tbc challenge shall be tried. Two indifferent persons are generally selected as triers. If they find against the challenge the juror will be sworn, and be joined with the tiiers in determining the next challenge. Uut so soon as two jurors have been found indifferent and have been sworn, every subsequent challenge will be referred to their decision—2 Ilale, -75 ; Co. Litt., 158 a; Lac. A hr. Juries (E. 12). The trial thus directed proceeds by witnesses called to support or defeat the challenge. Trier?, oath. The triers’ oath is :— “ You shall well and truly try whether A. />. (the jurjj- “ Oiiiui challenged) stands indifferently to try the “ prisoner at the bar, and a true verdict give “ according to the evidence. So help you God;’ WitncWa The oath administered to a witness to give evidence oath. before the triers is :— “The evidence you shall give to the Court and triers “upon this inquest shall be the truth, the whole “truth, and nothing but the truth. So help you “ God.” .luror may The juror objected to may also be examined on the voire ho examined on tviredirc. dire as to bis qualification or to the leaning of his affection ; but he cannot be interrogated as to matters which tend to his own discredit, as whether lie lias expressed a hostile opinion as to the guilt of the accused—2 Hawk., C. 48, S. 28 ; 11. ■v. Cook, 18 St. Tri., 884; R r. Edmond*, 4 13. and Aid., 471 ; 11. v. Geach, 0 C. and P., 499. On the trial of Cuff eg and others, at the Central Criminal Court, September, 1818, for a treasonable felony under the Statute 11 Vie., c. 12, the latter question was asked of some of the jurors who had been challenged for favour, the Attorney-General not object­ ing on the part of the Crown. Tin: JURY. 187

A juror cannot ho examined on the mini (lire without nm came being first shown, or stating some ground for the pro- '-^'m cccding—jhVg. v. DotvlUuu 8 Co.x, C. 0., 50!). The, oatli on tlie1; nurc dire is :— “ You shall true answer make to all such questions nsn.ai. «.n “the Court shall demand of you. So help you “ Cod A If the panel ho so far exhausted hy challenges that a full wonr ^-i jury is not left, the Court has power to order the panel to [^[i he amended or enlarged, or grant a tales—Statute '112, sees. r ^ 21 and 85 ; or a fresh panel will he returned, and thereupon the accused may challenge peremptorily any of those who were sworn before, if they are now returned ; hut he cannot challenge them for cause, excepting for some matter which has arisen since the original swearing—2 Hale, 27ff The 27th section of the Statute 272, provides for a view v^v nr in- or inspection hy a jury in a criminal case. Lljun.'1*,y In England, the Court will only under peculiar circum­ stances grant a. view in an indictment for perjury ; hut a, view will he refused if there be any risk of misleading the jury—Anon. 2 Chit, 122. Where on the trial of a rape, it was wished on the part of the prisoner that the jury should see the place at which the olience was said to have been committed, and the place was so near to the Court that the jury could have a view with­ out inconvenience, the judge allowed a view, although the prosecutor did not consent to it—Rey. v. Windier, 2 C. and K., 870 ; 2 Cox, C. G, 281. ‘ v The following is the oath to the shower:— “You swear you will attend this jury, and well and n,n, e, u„, “ truly point out to them the place in which flie, ,ll,,v',r “offence for which the prisoner A. stands charged, “is alleged to have been committed. You shall “not speak to them touching the supposed olience “whereof the said A. is no charged, only so far as “ relates to describing the place aforesaid. So help “ you God.” And to the bailiff:— “ Yrou shall well and truly attend this jury to the place o.u. t«, tiiU “in which the offence for which tin; prisoner “stands charged is alleged to have been committed. “ You shall not allow any one to speak to them, “touching the offence whereof the. said A. is so “ charged ; except the person sworn and appointed 138 THE JURY. “ to show the said jury the place aforesaid ; neither “shall you speak to them yourselves (unless it “ be to request them to return with you into “ Court), without leave of the Court.” IkliU'mtiun When the judge’s charge is concluded the jury consider of «>f l!iu jury. their verdict. If, on consultation in the box, they are not able to agree in a convenient time, they retire to a con­ venient place appointed for that purpose, an oiiieer being sworn in the following terms :— Oath of “ You shall keep this jury without meat, drink or fire otliccr. “(candlelight only excepted.) You shall suffer “ none to speak to them, neither shall you speak “ to them yourself, except only to ask them “whether they are agreed, without leave of the “ Court. So help you Cod.” According to the terms of this oath the jury are to bo kept together without meat, drink, or fire, candlelight only excepted, until they are agreed, and they must not separate or leave the place appointed for their deliberation, without the special permission of the Court—Co. Litt., 227 b., I 131 a. Com., 8(30. Katin" and If the jury, before giving their verdict, cat or drink,

such discharge is made evident to liis mind—U7nsc>r t\ R., Law II., 1 Q. ]). 2S!) ; Id., .*>!)() (Kxch. Lhnmh.); do L 51. (\, 1 l!l ; Id., Hil (Mxch. Cliamd; Re.r v. Shlehk. 2S St. rIVi., 411; 11 K, 710 ; R. e. Cvlbt it, D Dums, J., d() cd., IKS; 4 Din. Com. The judge atom* is to decide, upon the existence, ot* such necessity, and his decision is not subject to review—Wirt^ur r. R., vtl pro. However, in this colony, tlie law* is settled by the lOLh in Vut m. section of The JarUx Statute, 272. which enacts, where a jury shall have remained six or more hours in deliberation and shall not agree, they may he discharged by the Court from giving any verdict ; and such proceedings may there­ upon be taken anew, as if no trial or enquiry had been commenced before the jury so discharged. If the prisoner be taken ill, or one of the jury die or be In « .* <.r i i i H i - 2 ; 11. v. Steal', 2 C. and It, 4Id ; and so also whore material witnesses have hcen kept away hy collusion—1 Vent., G(J ; or even where absent by accident— eal c/tui.ec ; R. v. J(jY«, 2 Durr, LSI- ; Dost., 21*; 2 Hah*, 21)5. Or. 1 v «i< ni. In R. e. CharJestmeih, 1 D. and S., DIO ; dl L. J., 51. (\, 25, all the judges who decided that case expressed a strong opinion against the propriety o{‘ dh charging the jury, neivly because the case for the pro."edition fails for want of evi­ dence, and in the hope that further evidence may be got on a second trial. A jury sworn on an information, clearly bad in point On :i 1. a of law7, may, it seems, be discharged by the judge from iiif -riij :iti< n. giving a verdict—11. v. Datnni, R. and 51., 27; R. r. S(>af of It would seem, indeed, to be the better opinion, that the practice in the ili.-cro- discharge of the jury without giving a verdict, is a matter tion „f tho jud-o. of practice in the discretion of the judge at the trial ; and that, although the power with which lie is thus invested ought not to be exercised without very strong reasons, yet that it may be exercised without any absolute “necessity.” Material Thus, where a material and necessary witness for tho vitne - s refusing to prosecution refused to answer a question put to him, and, answer a question. although informed by the judge that lie was bound to do so, persisted in such refusal, and was thereupon adjudged to be guilty of a contempt of court, and lined and imprisoned, tho judge on the application of the counsel for the prosecution, and against tho will of the defendant, discharged the jury— R. v. Charlcsv'orth, 2 F. and R, .‘12G ; Hill, j. The course pursued in this case by Mr. Justice Hill was afterwards questioned in the Court of Queen’s Bench, and although it did not become necessary to give judgment upon its pro­ priety, Blackburn, J., expressed an opinion that it was right, which opinion seems to have been shared by Cockburn, C. J., who denied that the rule laid down in I Bla. Com., 3C0, that “ the jury cannot be discharged unless in cases of evident necessity, till they have given in their verdict,” is a true or correct exposition of the law as practised in our day. Wiglitman, J., and Crompton, J., on the other hand, thought the discharge of the jury by Mr. Justice Hill, under the circumstances mentioned above, was improper — R. v. Charlcsworth, 1 B. and S., 400 ; 31 L. J., M. C., 20. Juror Where a juror was summoned in error, but not returned funmnoncil in error, in the panel, and in mistake was sworn to try a case, during but not the progress of which these facts were discovered, the jury returned. were discharged and a fresh jury constituted by taking another juryman in the place of the one who had served in error—R. v. Phillips, 11 Cox, C. C., 142. A defence, founded oil the improper discharge of the jury, cannot be taken by plea ; for the only pleas known to the law, founded upon a former trial, are pleas of a former con­ viction, or a former acquittal, for the same offence. But if the former trial lias been abortive without a verdict, there has been neither a verdict or acquittal— H7u.sor v, R.y 1 Law POSTPONING TKTA1 141 Rop., Q. R, 395; 35 L. J., M. C., 1GI (Exeh. Chamb). And the discretion exercised by the judge in this respect, ;it all events where he discharges the jury on tin' ground of necessity, of the existence of which necessity it is for him alone to determine, cannot be reviewed in any way—11 "uisor v. It., ubi sejtra ; and

CHAPTER XXVIII.

POSTPONING TRIAL. No person prosecuted is entitled as of right to traverse or AmiM-i n..i postpone his trial, or have time to plead or demur to the information. Rut the Court, upon the application of such c,’,\>nrt;,nriy person, may, if it think fit, grant further time to plead or tn-ii. ‘ demur, and may adjourn the receiving or taking the plea or demurrer, and the trial as the case may be, to some future time or sittings, upon such terms as to bail or otherwise as the Court shall think fit—Statute 233, see. 354. Applications to postpone a trial in case of felony must he Thmw.r made after the plea pleaded—Boland's Caw, 2 Mod. and Rob., iV.If 192. ‘ * A trial of a prisoner for carnally knowing and .abusing a x„u<> in­ girl of six years old was not allowed to be postponed to enable the girl to be instructed as to the nature of an oath; but it was said there might he cases, where the intellect of the child was much more ripened, as in the cast's of children, nine, ten, or twelve years old, where a postponement might be permitted, if their education had been so neglected as that they were wholly ignorant on religious subjects—11. v. Nicholas, 2 C. and K., 210, and this was done in the case of a child ten years old—Rc:c v. Bay Us, 4 Cox, C. C., 23. The circumstance that a principal witness, although an Not after adult and of sufiicicnt intellect, has no idea of a future st;ito of rewards and punishments, is not a suilieient ground for .J,1 y ,m discharging the jury, though this appear as soon as the jury future oas 142 POSTPONING TRIAL. df rowanls is charged, and before any evidence is given—II. v. UAIe, and punish­ ments. 1 Moo., C. C., 80. I.nt alitur But if an application for that purpose bo made before the in import int 1 rials if ;tp- jury are sworn, the judges will occasionally postpone im­ pl ieat ion portant trials, if they have reason to believe that an adult lit'He before jury t’.vorn. who is a necessary witness for the prosecution, can within a reasonable time be rendered competent to testify—it. v. 117/ite, 1 Leach, C. C., 482 n (a) ; see Buss, on C. and M., 4 Ed., G13 and 617, vol. 3. Where jury In general the trial may be postponed on the ground of the may lie inllueneed. publication ot a libel tending to influence the minds of the jurors in forming their decision—it. v. Joliffe, 4 T. B. 285 ; 1 Burr, 510, 511, Bac. Abr., Trial II. ; Coder v. Me rest, 2 B.and Bing.,272; from the existence of a prejudice in the jury and also the panel being taken from a neighbourhood 'where the excitement is great—Reg. r. BoJnm, 2 M. and Bob., 102. Illn.-s of The illness of the defendant’s attorney has been allowed to (lefenilatit’s attorney. operate in a similar occasion—Say. Bep. GO, Bac .Abr., Trial II. Avi f< >U On a plea of avtrefoir acejv it or con riet improperly pleaded, (tf'''tit or the Court will in some instances postpone the trial to enable c t']c' not properly the prisoner to plead it property—It. v. Buivman, G Carr, and ] .leaded. P., 101 ; It. v. Chamberlain, 6 C. and F., 03. on prisoner's And a trial for felony may be postponed, on application by application. £]1C acciTS0cl 0n sufficient cause shown, by alii davit, after the jury have been charged and before any evidence lias been given—Reg. v. Fitzgerald ; Car. and Kir., 201. Absence of a Where a crown witness has not made a deposition before loiuc^m.t 11 magistrate, and it is sought to postpone the trial on account Cf'm'tiM Usenet1, Court veill require an affidavit stating the Analia. points he is expected to prove, in order to judge whether he is a material witness—R. v. Savage, 1 C. and K., 75. The inability of a witness on tho part of the prosecution not examined before the magistrate to attend, has been held sufficient to postpone the trial—Rerj. v. Lawrence, 4 E. and F., 901. L Abr cure of a It may be postponed on account of the absence of a wUnoSj for material witness for the prosecution, or on account of the bill prosecution, of indictment only being found the day before the assizes —Reg. v. MobhSy 2 Eos. and Fin., 18. The absence of a witness for the prosecution who would give evidence for the prisoner on cross-examination, and who had been bound over, is a ground for postponing the trial— Reg. v. Maearthy, 1 Carr, and Mar., G25. where a do- Where a defendant seeks to postpone his trial, on the pivjmucca grotmd that statements and abusive articles have been rOSTTONIXG TRIAL. 118 inserted in tlio public papers, reflecting on his character and i.y unfair calculated to damage liis case, and prejudice the mind of the ilfjh'uio1'1 public against him, and that consequently lie cannot have an impartial trial; it is not sufficient to set forth extracts merely from these articles and the substance of the statements, hut the defendant should pledge Ids oath that he believes ho cannot have a fair trial from the prejudice created by such statements—Rc(j. v. Birch, (j Cox., 10. The trial of a prisoner charged with murder lias boon post- innr.wt.> poned, on the allidavit of his mother that she would be ,-u enabled to prove by several witnesses that he was of unsound mind, that she and her family were in extreme poverty, and 1 1 * had been unable to procure the means to produce such witnesses, and that she had reason to believe that if time were given to her the requisite funds would be provided— llcfj. v. LangJinrst, 10 Cox, Moo. The most usual ground for the delay is the unavoidable at vrnro or absence or illness of a material witness—R. v. 17Ron, 8 Burr, 1511-; R, v. Joliffe, 4 T. lb, 285 ; Rex v. Mor phew, 2 M. ami Sol., 602 ; R. v. S free Jr, 2 C. and R, 413 ; R. v. limiter, 3 C. and R, 591 ; R. v. Stevenson, 2 Leach, 516; R. v. Palmer, 6 C. and R, 652 ; R. v. Chapman, 8 C. and R, 558; R. v. Owen, 9 C. and R, 88; R. v. Bowen, 9 0. and 1\, 509. Where witnesses are in a foreign country and not likely shortly to come hither, the Court have refused to postpone a trial—R. v. 17Ron, 3 Burr., 1514, and 1 Bla. Rep., 510; if. v. Jones, 8 East., 87. When the accused has been guilty of laches or delay, the Court Avill refuse to put off the trial—1 Bla. Bep., 511. In no instance will a trial be postponed on account of the absence of witnesses to character—R, v. Jones, 8 East., 81. . . > > Before an application is made to postpone the trial, notice r™Hiv.-:ntr, should be given to the Crown, in order, if necessary, that the application may be opposed—Cro. C. C., 22. oiruuitini. In support of the application, an affidavit must be made, Amo.avit in stating the names and places of abode of the absent tui,v."lt‘,f witnesses, and that they are material to the prosecution or defence—8 East. 85 ; aflidavits in corroboration may be filed, —1 Kenyon's Rep., 856. To induce the Court to postpone a criminal trial on account of the absence of a witness, it must be shown by allidavit that the witness is material, that due diligence lias been used to secure his attendance, and that lie can he obtained hy postponement—llr

CHAPTER XXIX. OPENING STATEMENT OF COUNSEL. When the accused is given in charge to the jury, the ny counsel for the prosecution, or, if there he more than one, the senior counsel, opens the case to the jury, stating the leading facts upon which the prosecution rely. In doing so, assuming it is necessary to open the case, he ought to state in effect all that it is proposed to prove, as well declarations of the accused, as facts, so that the jury may see if there ho a discrepancy between the opening statements of counsel, and the evidence afterwards adduced in support of them—per Parke, B., R. v. Ilarlel, 7 C. and P., 77*1 ; R, v. Dads, Id., 785 ; unless such declarations should amount to nm m.t a confession, where it would be improper for counsel tunf, SS|,,nH- open them to the jury—per Bosanquet, J., and Patterson, J., Rex v. Sieatl'ins, 4< 0. and P., 5-18 ; per Parke, B., Rex v. Darisf 7 C. and P., 78G ; per Bolland, B., 'Rex v. Orrcll, Id., 775. The reason for this rule is that the circumstances under which the confession was made may render it inad­ missible in evidence. The general effect only of any confession said to have AiUi<.urh been made by a prisoner ought, therefore, to be mentioned L in the opening address of the prosecuting counsel—Rex v. 5. Wttfkins, 4< C. and P., 518 ; Rex v. Veering, 5 C. and P., 1G5 ; Reg. v. Creav, 8 Cox, 509. When any additional evidence, not mentioned in the A-i*iitiomi opening speech of counsel, is discovered in the course of a c'uilJlC0’ trial, counsel is not allowed to state it in a second address to the jury—R. v. Covrroisier, 0 C. and P., 3G2. In opening a case for murder, the counsel for the proseeu- in on,oof tion may put hypothetically the case of an attack upon the Iuu,,kn character of any particular witness for the Crown ; and say that should any such attack be made, he shall be prepared to meet it—per Tindal, C. J., and Parke, B., Id., 8G2. He may also, it was ruled by the same learned judges, read to the jury the observations of a judge in a former case; as to the nature and effect of circumstantial evidence, pro­ vided he adopts them as his own opinions, and makes them part of his address to the jury. In R. v. Dowling, Cen. Grim. Ct., 1818, Arch., C. P., 1G llcf. rcnco to Ed., 153, the Attorney-General having in his opening address to the jury, made reference to disturbances in L 146 CONFESSIONS AND ADMISSIONS. Ireland, Erie, J., held, on objection made, that such reference was not irregular, it being laid down in books of evidence that allusion might bo made in courts of justice to notorious matters, even of contemporaneous history. When ac- Where the accused is defended, and the facts of the ease CU.-otl ilofc.mloil, are few and simple, although the practice in some such cases (>| n il in ^ bt.ltrlllUllt has been for counsel to enter at once on the examination of slnmM ho witnesses, without previously stating the case to the jury, liuulo. ail opening address is generally advantageous, and should bo made—Re John Morgan, G Cox, 11G. Ami in In a case of felony, where there is counsel for the accused, felony. the counsel for the prosecution ought always to open the Hut. not if case ; but lie should not open it if the accused has no Itoeiisrd lltl- (l.friKlc.!, counsel, unless there be some peculiarity in the facts of the nnlr-i 111o R. v. Gascoine Ilex fact3 require case to require it— , 7 G and R, 772 ; it. v. Jackson, 7 C. and P., 773; R. v. Bolder, 7 C. and R, 773. Hut not Counsel should not state in liis address to the jury state­ Ftnteinonts m:ulo hv an. ments made by the accused after his arrest—R. v. Budkin, accused after a-rcct. 9 Cox, C. C.,yl()k ... Nor to quote Counsel will not bo allowed upon a question of insanity medical wri tors. to quote in his address to the jury the opinions of medical writers as expressed in their books —R. v. Grouch, 1 Cox, C. G, 91.

CHAPTER XXX.

CONFESSIONS AND ADMISSIONS.

Confer ion 3 A free and voluntary confession of guilt made by an nmvSonfur accused person, whether in the course of conversation with Vni,<*1>fUt private individuals or under examination before a magistrate, is admissible incvidoncc as the strongestand most satisfactory proof; because it is fairly presumed that no man would make such a confession against himself if the facts confessed were not true—Lamb’s 'Case, 2 Leach, 582. And the highest authorities have now established, that a confession, if duly made and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence—aliunde 1 Vhcelinrfs Case, in note, 1 Leach, 311; Rex v. Eldridge, R. and R., 0. C., 410; Rex v. Falkner, ib., 481. cannot bo By the Statute of Evidence 18G4, 197, sec. 57, no con- tho gSuna fession which is tendered in evidence at any trial, shall bo CONFESSIONS AND ADMISSIONS. 147 rejected on tlie ground that a promise or threat, lias been held am a out to the person confessing, unless the judge or other pre- !i™l i'-'T siding oiiicer shall he of opinion that the inducement was tlio really calculated to cause an untrue admission of guilt to be a made; nor is any confession which is tendered in evidence on any trial rejected on the ground that it purports to have been made on oath, if proof can he given to the judge or other presiding ofiiccr that in fact it was not so made. It will he seen from the above section, that where an ifarrOm- examination, in writing, on the lace of it erroneously states ati?.iV\.ur-n" the accused to have been examined on oath, it cannot on \\'"u that ground now' be rejected as evidence, if proof can he , given that in fact it was not so taken. iliow that, in Whore the statement of an accused made before the com-":,s mitting magistrate in the required form, purports to be rH signed by the magistrate, and is returned with the depositions, i-tawim-nt it is admissible in evidence without any further proof—without any 11 q. v. Harris 4 Cox, C. C., 147 ; Roy. v. llanf, 4 Cox, C. G, i,ruuf* 141); Reg. v. San-some, 1 Den., C. G,‘ 545 ; 4 Cox, 203. A voluntary statement made by a prisoner in the course rio-m.-i * of an examination before a magistrate is admissible at the 'un'ment trial, although the caution has not been given—Re]n. In a case where the accused was sworn and examined by Wli ’!) mistake, and In’s deposition destroyed and an examination taken in the regular way, it was admitted—Ilex v. ]\'cbb, 4 ovai !■> C. and P., 5G4. ini.it. tloj. But a statement on oath by a person not being a prisoner, Voliinl.irv hl .'l I Cl I H‘l I) l and when no suspicion attached to him, the statement not Oil o.'itil 1.V ]'ci><>m not being compulsory, nor made in consequence of any promise jx-in^ jit)- cm 11nr of favor, is admissible in evidence against him on a criminal tinker charge—1 Phill. Kv., 40 k Sueli a statement made by an accused upon oath, at a a V., ‘>b5 ; Ii< t'h:!r;;cd. v. Hamling, Vic. Law Times, 1G. 148 CONFESSIONS AND ADJIISSIONS.

Examina­ The examination of a person taken upon oatli before com­ tion of a bankrupt. missioners of bankruptcy, lie having been cautioned and allowed to elect, what questions lie would answer, wos held admissible against him on a charge of forgery—11. v. lb heater, "Wlim ho 2 .Moo., C. C. 45. And where a bankrupt was examined, makes no object ion, touching a matter not relating to his trade dealings or estate, but answers questions and did not refuse to answer, on the ground that the answers put. would tend to criminate him, but answered without objec­ tion, his answers were held voluntary, and bis examination admissible against him on a criminal charge—It. v. Sloggdt, Dears., C. 0., G5C. But see Statute 273, sec. 94, as to the examinations of insolvents. Compulsory And it lias been held, where a bankrupt was examined bxaminatiuii of ailmissiblo under Sec. 117, of 12 and 13 Yic., c. 10G, lie was bound to answer all questions touching matters relating to liis trade dealings or estate, or which might tend to disclose any secret grant, conveyance, or concealment of his lands, tenements, goods, money, or debts, although liis answers ma}' criminate himself; and such answers, though they do tend to criminate him, may be given in evidence against him on a criminal charge—R. v. Scott, 1 Dears and B. C. C., 47. Answer and The answer and deposition of a defendant in a suit in deposition in chancery. equity, instituted against him by the prosecutor, is admis­ sible on an indictment against him—R. v. GohUhcdc, 1 C. and K., G57, except in cases where it is otherwise provided, by Statute 233, sec. 14G, and Stat. 234, see. 92. Affidavits. And the ailidavit of a person, no matter bow he may have been induced to make it, is admissible against him in both criminal and civil cases—Reg. v. Goldshcde, supra; Rex v. Walker, cited, G C. and P., lGi. Confession? It is no objection to the admissibility of a confession, that obtained by questions it was elicited by questions, if no undue influence bo used— put. R. v. Ellis, By. and M., 432; R. v. Thornton, 1 Moo., C. C., 27; Reg. v. Kerr, 8 C. and P., 17G; Reg. v. Ilassdt, 8 Cox, C. C., 511. Answers to Answers given by an accused to questions put to her by such ques­ tions held a constable who had taken licr into custody, and gave her admissible. no caution, were admissible in evidence against her on her trial—R. v. Johnston, 15 Irish C. L. B., GO, Ct. Crim. Appeal, Ireland, over-ruling R. v. Bodkin, 9 Cox, 403. DYING DECLARATIONS. 110

CHAPTER XXXI.

DYING DECLARATIONS. The dying declarations of a person who expects to die, A.iuutsa s» respecting the circumstances under which ho received a mortal injury, are constantly admitted in prosecutions, when the death is the subject of criminal inquiry, though the accused was not present when they were made, and had no opportunity for cross-examination—R. v. Jointy 1 East, P. C., Mu ; 11. v. Hacks, 1 Stark, 523; Taylor on Ev., sec. 011, ct m/. These declarations are only admissible where the death of oniva.imu,- the deceased is the subject, of the charge, and the eircum- 11 stances of the death the subject of the declaration—It. v. Mead, 2 P. and C., GOd. Thus, in a case where the prisoner was o.:»r;;.-. indicted for administering savin to a, woman pregnant, but not quick with child, with intent to procure abortion, the woman was dead, and for the prosecution evidence of her dying declaration upon the. subject was tendered; Hailey, J., rejected the evidence, observing that although the declara­ tion might relate to the cause of death, still such declarations were admissible in those cases alone where the death of the party was the subject of inquiry—It. r. 11 ttfehittsov, 2 J3. and C., (JOS n. So in It. v. Mead, 2 P». and C., GOd, defendant having been convicted of perjury, a rule nisi for a now trial was obtained ; whilst that was pending, the defendant shot the prosecutor, and on showing cause against the rule, an ailidavit was tendered of the dying declaration of the latter, as to the transaction out of which the prosecution for per­ jury arose. The Court held that it could not be read. And in Reg. v. Hind, 1 Pelfs C. Ct, 2dtt, where the pri­ soner was indicted for using instruments to procure the miscarriage of a woman, her dying declaration was held inadmissible, and the general rule laid down by Abbott, 0. J., in Rex. v. Mead, 2 13. and C., GOd, was fully recognised by the Court. So in trials for robbery, the dying declarations of the party robbed are rejected—It. v. JJojfd, 4 C. and 1\, 233 ; also, in rape—R. v. lYevdon, 1 F. and F, Gld. Dying declarations are admissible either against or in favour of the party charged with the death—lte.r, v\ Rca.ife, 1 and Rob., del. For it is considered that when an individual is at the point of death, and when every hope in 150 I)YIN(i DECLARATIONS. this world is gone, then every motive to falsehood is silenced, and the mind is induced by the most powerful con­ siderations to speak the truth ; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath adminis­ tered in a Court of Justice—R. v. WuudcocJ:, 1 Leach, 502, 1 Gilb. Ev., 280. Drcva ci Such declarations, though proved to have been made by coniil.us of a person in a dying state, are not admissible, unless it also airnpOiin- appears the deceased himself apprehended that he was in r ing them in evidence, that they were made vnder a sense ikath. ° of impending death—Reg. v. Forester, 10 Cox, C. C., JOS ; lleg. v. Maci'ay, 11 Cox, C. C., 148; Reg. v. Jcnhiue, 11 Cox, C. C., 250 ; but it is not necessary that they should be stated at the time to be so made—R. v. Dingier, 2 Leach, 501. It is enough if it satisfactorily appears in any mode that they were made under that sanction, whether it be directly proved by the express language of the declarant, or be inferred from liis evident danger, or the opinions of the medical or other attendants stated to him, or from his con­ duct, or other circumstances of the case ; all of which arc resorted to in order to ascertain the state of the declarant’s mind—R. v. Wdbouvn, 1 E. P. C., 358 ; R. v. Christie, Carr Supp., 202 ; R. v. Crochett, 4 C. and 1\, 514. Length of The length of time which elapsed between the declaration i"tweon and the death of the declarant furnishes no rule for the ami tkltu11 admission or rejection of the evidence, though in the absence * of better testimony, it may serve as one of the exponents of the deceased’s belief, that liis dissolution was or was not it n the impending. It is the impression of almost immediate dissolution, and not the rapid succession of death in point r'M 'rstho renders the testimony admissible, evi.niri!10 Therefore, where it appears that the deceased at the {uinn.'.Hibie. yme 0£ £|IC declaration had an expectation or hope of lloJvcr’1’0 °f recovery, however slight it may have been, and though death actually ensued in an hour afterwards, the declaration was held inadmissible—Greenl. Ev., 18.0. However Any hope of recovery, however slight, existing in the renders a mind of the deceased, at the time of the declaration made, ilSaiSLVbic. will render it inadmissible— Reg. v. Ilayvxvrd, GC. and P., DYING DECLARATIONS. 151

157 ; Rex v. Croelrff, 4 C. and P., 51- i ; R. v. For n Bufclicll, 3 C. and P., 6-29. And to render it admissible, it must be shown to have k'.-n m** been made under such circumstances as necessarily exclude ku-t the supposition that the deceased might at the time enter- Fexdmsa tain some hope of recovery—Simpson's Case, 1 Lew., 78 ; Erri nylon’s Case, 2 Lew., 1-18 ; R. r. SplIshury, 7 C. and I\, 187 ; Ecrrm«v,i should be under an apprehension of death ; but there is no J^VnVn- 'necessity that such apprehension should be of death in a. kkvmin11 certain number of hours or days. The question turns uf rather on the state of the person’s mind at the time of the hv\a,. making of the declaration than upon the interval between the declaration and the death—Bej. v. Heaney, P. and B., 151 ; 7 Cox, 209 ; Bex v. rThomas, 1 Cox, C. 0., 52 ; 8 Ituss. on Crimes, 4 Ed., 201. If the deceased believed himself to be in a dying state vik.vo.io- when he made the declaration, the fact that the surgeon ka i,., thought him likely to recover will not render it inadmissible —Per Willis, J., R. v. Peel, 2 E. and lb, 21. Nor is it neees- snry that the party himself should have been satisfied that r-.-Ih,;!^ lnnl liis death from the injury in question was inevitable. It . is sullicient if he believed himself to be dying—R. v. ti.T.V,,T.?,,,, Whitworth, 1 E. and E., 882. ' [iuiT''* There must not only be a probable nearness of death, but an ti..j ju.!;?J absolute conviction ol* this in the mind of the individual. No '•!!'-'J’nha case has gone the length of saying the latter could be dis­ pensed with. The decision of points of this kind must r^vu-j. always rest on the circumstances of each individual case. A mere inference that the deceased was probably aware that she would not recover is insufficient—E. v. Palmas, 1 Cox, C. C., 95. Where the deceased had had the last rites of the Homan a Mi,-for Catholic Church administered to him, and the .surgeon, at the ’ft'"r'p request of a magistrate, had asked him whether lie had any hope of recovering, and he answered, “I think I shall die ;” he «bin:j then made a statement. The surgeon stated that at the time lie considered the deceased in a most dangerous state ; but, two or three days afterwards, the deceased had (expressed a 1 52 DYING DECLARATIONS. belief that lie should recover. Patteson, J., held that it would be hardly right under such circumstances to admit the declaration of the deceased—Reg. v. Taylor, 3 Cox, C. C, 81. Tllf* tWrw,] It is not absolutely necessary that the deceased should IHV'l not ex pro <3 express any apprehension of danger, for his consciousness of npproheiison of danger. approaching death maybe inferred, not only from liis declar­ ing that he knows his danger, but from the nature of the wound or state of illness, or other circumstances of the case. And if it may reasonably be inferred from the nature of the wound, the state of illness, and other circumstances, that the deceased was sensible of bis danger, liis declarations are admissible— Dingier s Case, 2 Leach, 501 ; Rex v. Bonner, 0 C. and P., 380 ; Rex v. Mosley, 1 Moo., C. C., 97; Rex v. Perkins, 2 Moo., C. C., 135. It. is a ques­ It ought not to be left to the jury to say whether the tion for the jud-',; deceased thought he was dying or not, for that must bo whether thn —Johns (leeen :,m! wr,3 decided by the judge before be receives the evidence in such a Case, 1 E. P. C. c. 5, sec. 121,357; 11 c/bourn’s Case, ib., .state of mind :h to make 358 ; R, v. Hvek’s, 1 Stark, N. P. C, 523. the state­ ments ad­ The circumstances under which the declarations were missible. made are to be shown to the judge, who will hear and Judm will enquire into every fact and circumstance, which may tend inquire into the facts. to throw light upon the state of mind of the deceased, at the time when the declaration was made, in order the better to enable him to arrive at a satisfactory determination as to whether the evidence be admissible or not—Rex v. Van Butchell, 3 C. and P., G29 ; Rex v. Spilsbury, 7, C. and P., 187; Reg. v. Smith, 10 Cox, C. C., 82. Declaration Where two persons died from the same act of poisoning, of one of two ]H r.sons the declaration of one was held admissible on the trial of ilviiu: from the same act. the prisoner for the murder of the other—Rex v. Baker, 2 M. and Rob., 53. Declarations The declarations of the deceased are admissible only as to only evi­ dence of those things to which he would have been competent to facts. testify, if sworn in the case. They must, therefore, in general, speak to facts only, and not to mere matters of opinion, and must be confined to what is relevant to the issues—Rex v. Sellers, Carr Supp., 233. Dyin" The declaration of a convict, at the moment of execution, declaration of a Convict. cannot be given in evidence as a dying declaration ; for, as an attainted convict, he could not have been admitted to give testimony upon oath—R. v. Baker, 2 M. and Rob., 53 ; R. v. Wchb, 11 Cox, 133. Of an The dying declaration of an accomplice is admissible, (.•complice. DYING DECLARATIONS. 153 where the prisoner is charged with assisting in the self­ destruction of the accomplice, and provided the declarant was at the time such a person as would be competent as a witness—R. v. Tinclier, 1 E;ist, P. C., 351, 35G ; Drinu- moiuVn Case, 1 Leach, 337. Put, where three several declarations had been made by A I'MI-nl d\ III;: v. Cla rke, 2 F. and F., 2 ; it is admissible as a declaration in artienlo moj’fis, if taken under such circumstances as would render such a declaration receivable in evidence—R. r. JJiiajler, 2 Leach, 5G1 ; R, v. Callayb/jui, McNally, Ev., 335. And evidence is admissible to prove that the deposition i:vi.lt m -' i rullni. i hit: was taken at a time when the deceased was aware of the I how approach of death, although the deposition contains no state­ .head w :i» a i it hi; \\ ment to show that the deceased made it in contemplation of iljiim. death—R. v. Hunt, 2 Cox, C. C., 231). 154 DYING DECLARATIONS.

Aatotim It is no objection to a dying declaration, that it was made oieitin- tho in answer to leading questions, or obtained by pressing and deeev'cdi^s ^ f solicitations—Rex v. Fa gent, 7 C. and P., 238 ; 11. v. Smith, L. and C., G07. nodoratioin If a child be too young to be capable of understanding tho Uio jilt'to religious obligations of an oath, liis declarations are inad- >lo undci~ .-dund’ “missiblc—11. v. Pile, 3 C. and P., 5.08. But if he fully com­ in-the prehend the nature of an oath, and the consequences, in a religious ol»lr::it inns future state, of telling a falsehood, his declarations, made of an oat h aiv iiiad- under the apprehension and expectation of immediate death, jni-iMe. are admissible in evidence—lieg. r. Perkins, 2 Moo., C. (J., 135. RilTeivnco A difference of opinion has existed, whether the examina­ of opinion ns to ilio ad­ tion of a person upon oath, as a witness before a coroner, be m issi hi I i f y of ;i deposit ion admissible in evidence against such person on his trial. made before a coroner. At a coroner’s inquest on the body of A., and it not being suspected R. was at all concerned in the murder of A., tho On trial of J>. for mur- coroner had examined B. as a witness ; Parke, J., would not \, so taken on oath on the coroner’s vtJi. on inquest, to be read in evidence on the trial of an indictment inatiou Upon an indictment for murder, the deposition of a wit­ on an in- Hiirstt on ii,o ness made on oath before a coroner, on an inquest on the body of one person, was read over to the accused on the <.n an in- inquest on the body of another person, and an additional nimtiicrstatement then made to it was admitted in evidence—R. v. find at tiuiuil' st.i' tc- Sandgs, 2 Mood., C. C., 229 ; C. and M., 315. . # . incut then ljnnle to it And on indictment for murder, Parke, B., received in evi- luimittod. dence a deposition made by the prisoner on oath, as a Oil :i li­ i of witness before the coroner—R. v. llovearth, Grcenw. Coll. the \\ it ft rdcr Statutes, 137. And also on a trial for manslaughter by ;tnd poOon- in- Ids Martin, B.—11. v. Bateman, 4 F. and F., 10G8. dojio-dtdoirs before And where the prisoner was indicted for administering coroner poison with intent to murder her husband, the coroner stated admitted. that lie had held an inquest on his body, which was ad­ journed, and that the prisoner was present as a witness on the .second occasion. No charge had at that time been made against her : she made a statement on oath, which the coroner DYING Dl'CLAIvATlONS. 1.15 took down in writing ; Lord Campbell, C. J., after consulting Parke, R, admitted tlie statement, and the prisoner was convicted and executed—fug/. v. tiarah Qltcyam, 2 Pairs., C. and. II., 1- cd., 118. On an information for endeavouring to conceal the birth on m -i ot of a child, the depositions of the accused as a witness at an }!.*,*’ inquest on tho body of tho child wore laid inadmissible— lutf. v. Jamcs Taylor, 2 Wy. and W., 122. On an information for arson, the depos itions of C. and R !■ made on oath before tlu^ coroner, on an inquest on a lire, fa. G. being cautioned, and II. not cautioned, were tendered. i>nti.otmi Held that C.\s deposition was admissible, but not Kr. 'rf kA!i'le. ra­ il eld also that the safe rule is, when suspicion attaches to a witness before the coroner, ho should bo cautioned, and .re .a- afterwards his deposition may be used on the trial, otherwise it should be rejected—R

of law, it was not absolutely necessary”—R. v. Pll'cslcj, f) C. and P., 12 k Coleman, J., also said, “ It is very proper, as a matter of caution, that the magistrate or his clerk should be called in all cases where it can be conveniently done, but I think it is not necessary in point of law”—lug. v. Wil- shaw, C. and M., 115. whim tiuro Should there be any erasures or interlineations in the mOMtminea- examination, the person who took it down ought to be Horn. called to explain them—Brogans Case, Itoscoe’s Crim. Ev., 61, 1834 ; Reg. v. Birgers and ore., 3 Puss., C. and M. 4 ed., 4G3. statement of By the Statu to 2G7, sec. 82, the statement of the accused, *u'cu^ ’ returned with the depositions, if in proper from, is admissible without proof of the accused or magistrate’s signature. Proof of A deposition taken before a coroner, may be proved by ilT>reaona the coroner, or by any person who can prove the signature coroner. 0f the coroner, that the witness was sworn, that the deposition contains the evidence given by the witness, and that the prisoner was present and had an opportunity of cross-examining the witness. coroners It is the duty of the coroner to take down the statement iakiV"ox- of each witness, to read it over to him, and to procure his animations. S]*gIiature to it—Reg. v. RliLmmer, 1 C. and K., GOO ; and then the depositions are admissible ; but a coroner’s note of the evidence which was not read over to the witness, is not evidence—Id.

CHAPTER XXXII. ADJOURNMENT OF TRIAL.

Power of If the trial is not concluded on the same day on which it judee if not concluded in began, the judge has authority to adjourn it from day to one day. day, without the defendant’s consent—R. v. Stone, G T. R., Jurors ill 530 ; R. v. Hardg, 24 St. Tr., 418. In such case the jury treason or felony kept on a trial for treason or felony arc (and in all criminal cases toeet her. may be) kept together during the night, under the charge Not so in of officers of the Court; but, in misdemeanors, they are misde­ meanor. generally allowed to return to their homes for the night, being charged not to converse with any person on the subject of the trial—See R. v. Kinncar, 2 B. and Aid., 4G2. For produc­ Where the witnesses for the prosecution have all been tion of evidence. examined, the Court may order the case to lie adjourned, and direct another trial to be proceeded with in order to give ADJOURNMENT OF TRIAL. 157 time for the production of a tiling essential to the proof deposited at a distance—11. v. UVnfonm, G Jur., -(>7; and on a trial for murder, before Maul, J., at York, December, 1818, where, after the opening address of the counsel, it was discovered that in consequence of the detention of the rail­ way train the witness for the prosecution had not arrived in the city, the trial was adjourned, the jury were locked up, a fresh jury was called into the jury box, and another case was proceeded with—R. v. Foster, 8 (J. and K., -01. Where a juror was sworn in a wrong name, and the When juror hWi-rn in objection was taken before verdict, the same learned judge wiung n.uvio. at the same assize intimated that the proper course was to discharge the jury and try the prisoners again ; although, there being in that case a second indictment against the prisoners, such a course was not there necessary—R. v. Metcalf, M. S. It has been held that the trial must proceed, Wlicn.’i juror ivi.it to 11 uf although in course of the proceedings it is discovered that one J't'i'viIliT. of the jurors is related to the prisoner on trial, as that fact was a ground of challenge—R. v. Wurdlc, 1 C. and Mar., (M-7. Where a prisoner indicted for felony, with whom the jury were charged, was by sudden illness rendered incapable yrhom/r. of remaining at the bar, the jury were discharged, and the prisoner on recovery was tried before another jury—R. v. 8fcir.ilson, 2 Leach, 510; and in a case of misdemeanor, where the prisoner became ill and was carried out of court, the judge discharged the jury, being of opinion that the consent of his counsel, that the case should proceed in the absence of the defendant, was not under such circumstances sufficient; and if a prisoner so taken ill recovers during the assizes, he may be put on his trial again, the proceedings being of course begun do novo—R. v. Sired', 2 C. and R, 413. " In Reg. v. Tempest, 1 F. and F., 881, Watson, R, said ho Jury sworn. had no power to adjourn a criminal case when once the jury are sworn. The judge, in a case of felony, has no authority to order Absence of j.ro.Mvutur an adjournment (i. c\, to another day), on account of the nml wit- mere absence of the prosecutor and his witnesses—Reg. v. lU.iVOa. Parr, 2 F. and F., 801 and Note h; in J leg hue v. Robson, 4. F. and F., 8GO, Willis, J., said he could have adjourned the trial of the case, if no evidence had been called. 1.18 DEFENCE AND STATEMENT OF THE ACCUSED.

CHAPTER XXXIII.

DEFENCE AND STATEMENT OF THE ACCUSED. Accused entitled to inspect de- By the Statute 233, section 3S3, all persons under trial l>ositions ur are entitled, at the time of their trial, to inspect without copies on trial. fee or reward all depositions which have been taken against them, and delivered in manner by law required to the proper officer of the court, before which such trial shall be

]Vp< isitions had, or copies of such depositions. of ;u-cu>od \\ itne-scs And by the Statute 207, sec. 81, where any witness who d\in- before lias been called and examined before the justice, by and on trial liny be read. behalf of a party committed or held to bail, happens to die before the trial, if the party on trial so require, the depo­ sition of such witness may be read in ‘evidence to the jury Additional in the defence of such party. evidence. Where additional evidence has been obtained after the committal, but no depositions containing such evidence taken, the Court has no authority to order a copy of such Where evidence—Rcy. v. Connor, 1 Cox, C. C., 233. several •prisoners Where several prisoners are jointly indicted, the judge jointly in- will not allow a separate trial, on the ground that the depo­ dieted, the jinb'e will sitions disclose statements and confessions made by one not allow a separate prisoner implicating another, which are calculated to preju­ trial. dice the jury, and that there is no legal evidence disclosed against the other—R. v. Richards, 1 Cox, C. C., G2 ; Reg. v. When and Blackburn, G Cox, C. C., 333. by whom prisoner's By the Statute 233, sec. 3Gb, all persons tried for felonies defence can be made. shall be admitted, after the close of the case for the prose­ cution, to make full answer and defence thereto by counsel learned in the law, or by attorney, in Courts where attorneys Herniations practise as counsel. of practice. In consequence of the passing of the G and 7 Win. IV., c. lib, section 1, from which the above section is taken, regulations of practice to be observed on trials of felony, where the prisoner has counsel, were adopted at a meeting of twelve out of fifteen judges, before the Spring Circuit in 1837—See 1 Moo. C. C, b<)5. Qualified The first three of these regulations have been very much by the ►Statute qualified by sections 52 and 53 of The Statute of Evidence, of Evidence, lSul. 18Gb, No. 197, a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the information or proceeding, without such writing being DEFENCE AND STATEMENT OF THE ACCUSED. i:><) shown to him ; but if it is intended to contradict such wit­ ness by the writing, his attention must, before such contra­ dictory proof can l>e given, be called to those parts of the . writing which are to be used for the purpose of so contra­ dicting him—See R. v. Connorst 11 Irish Jurist, p. 2l>>. Where two prisoners are jointly indicted, and are do- oni ref fended by dillerent counsel, each counsel cross-examines and ^'if, ^.jn.> addi •esses the jury for his client, in the order of seniority at rri-“1UT-!* the bar, but where the judge thinks it desirable, he will permit the counsel to cross-examine and address the jury, . not in the order of seniority, but in that in which the names stand on the indictment—Per. Rolf, !>., 2 M. and Rob, 417 ; and this course was allowed by Creswell, J., York Spr. Ass., 1852; and see Rex v. Barber, 1 C. and K., 431, 1 Cox, C. O., 02. Where several prisoners are defended by dillerent counsel, u.m d.- the order of their defences is not to be determined by the , Martin, B. And in a similar case, the Court called upon the principal to make his statement to the jury, before the counsel for the receiver w;is permitted to address them—Reg. v. Martin, 3 Cox, C. C., 50, Coleridge, J. Where two prisoners are jointly indicted, and only the wii-m only second in the indictment is defended by counsel, the latter will be permitted to address the jury before the other makes his statement, notwithstanding the rule established in Rev v. Richards, 1 Cox, C. C., 02 ; Rex v. Ilazell, 2 Cox, C. C., 220. Where two prisoners arc indicted together, and one of them only is defended by counsel, it seems to be in the dis- ICO DEFENCE AND STATEMENT OF THE ACCUSED. crction of the judge whether he will allow the prisoner who is undefended to make his statement to the jury before or after the address of counsel. Where A. B. and (7. were jointly indicted and separately defended, and at the close of the case for the prosecution, G. was acquitted, and was then called as a witness for A., and his evidence tended to criminate B., it was held that B.’s counsel had a right to cross-examine (7., and to reply—11. v. Burdett, Dears., C. C., 431. . Accu-crl When the accused is undefended, lie cross-examines the may crccs- examino witnesses for the prosecution, if he thinks fit, or the judge does so on his behalf. In felony With respect to the right of an accused to make a state­ jifror prison­ er's counsel ment or address the jury, in addition to that made by his lias a.d< Iron­ ed the juiy, counsel, in lleg.v.Boucher, 8 C. and P.,141, where the accused the prisoner was charged with felony, Coleridge, J., held that after the himself will jiot he prisoners counsel had addressed the jury for him, the .allowed to do so. accused himself was not at liberty to address the jury ; and in Reg. v. II. Beard, S C. and P., 142, Coleridge, j., in a Counsel will case of larceny, said: I cannot permit a prisoner’s counsel not ho allowed to to tell the jury any thing which he is not in a situation to state any­ thin" to a prove, or state the prisoner’s story, unless he can confirm it jury which by evidence. If the prisoner does not employ counsel, he he prove by evidence, or is at liberty to make a statement for himself, and tell his which is not already in own story, which is to have such weight with the jury proof, anil he \\ ill not as, all circumstances considered, it is entitled to ; hut if he allowed to he employs counsel he must submit to the rules which state the prisoner’s have been established with respect to conducting cases by story. counsel. nay On a trial for a misdemeanor, the accused may address address the jw, the jury and examine and cross-examine the witnesses, and hut cannot have counsel his counsel will he allowed to argue any points of law that to cross-ex­ amine the may arise in the course of the trial, and to suggest questions \\ itne.-.ses, to him for the cross-examination of the witnesses ; but lie and address the jury cannot have counsel to examine and cross-examine the wit­ himself. nesses, and reserve to himself the right of addressing the IYrsons jury—R. v. Parkins, 1 C. and P., 548; Ity. and M., 1GG ; charged with offences may 11. v. White, 3 Camp., 98. make a statement. By the Statute 197, sec. 41, any person in any criminal proceeding charged with the commission of any indictable offence, or any offence punishable on summary conviction (whether such person shall or shall not make liis answer or defence thereto by counsel or attorney) may make a state­ ment of facts (without oath) in lieu of, or in addition to, any evidence on his behalf. DEFENCE AND STATEMENT OF THE ACCUSED. 1G1 It would seem from this section that inasmuch as the Afi.Ta.Mr.-ui statement is to ho made “in lieu of, or in addition to, any ^h"*coim' evidence,” it is intended it should be made after the address of the prisoner’s counsel. Where, on an indictment for maliciously wounding the stae-mont prosecutor when no oilier person was present, the prisoner had made a statement before the magistrate, which was not InV^ hiK put in by the counsel for the prosecution, Alderson, B., permitted the prisoner to make a statement before his counsel jury, addressed the jury, and then his counsel addressed the jury, and commented on the prisoner’s statement as according with the evidence, and only supplying what was otherwise deficient in it. The learned Baron said, “I think it is right a “ person should have ail opportunity of stating such facts as “ he may thinkmatcrial,and that his counsel should be allowed “ to comment on that statement as one of the circumstances “ of the case. On trials for high-treason the prisoner is “ always allowed to make his own statement after his counsel “ has addressed the jury. It is true that the prisoner’s state- “ ment may often defeat the defence intended by his counsel; “ but, if so, the ends of justice will be furthered. Besides, it Fm “is often the genuine defence of the party, and not a mere «.nVn tn.* “ imaginary case invented by the ingenuity of counsel ”—a^noj* Reg. v. Matings, 8 C. and P., 212. And, at the same assizes, Gurney, 13., after conferring with Alderson, 13., allowed a similar course to be adopted, but said he thought it ought not to be drawn into a precedent, and the prisoner read a written statement—Reg. v. Walking, 8 C. and P., 21-3. The report does not state what the particular facts were in this case. Alderson, B., allowed the same course in Reg. v. Dyer, 1 Cox, C. C., 1J 8 ; and Reg. v. Williams, 1 Cox. C. C., 863; and in Reg. v. Manzano, 2 F. and F., 6 k Martin, B., after consulting Channel, B., allowed the same course, as there was a precedent for it in 8 C. and P., although he was entirely opposed to the practice. But, where on an indict­ ment for child murder, the two previous cases in 8 C. and P. were cited, and permission asked for the prisoner to make a statement, Pattcson, J., said : “ The general rule certainly o.-n. •riil rulo “ ought to be that a prisoner, defended by counsel, should j^Xof hi* “be entirely in the hands of his counsel, and that rule “should not be infringed on, except in very special cases “ indeed. If the prisoner were allowed to make a statement, “and stated as a fact anything which could not be proved by “ evidence, the jury should dismiss that statement from “ their minds ; but if what the prisoner states is merely a M 1G2 REPLY, AND REBUTTING CASE. “ comment on what is already in evidence, his counsel can “ do that much better than ho can.” The prisoner did not make any statement—Reg. v. Rider, 8 C. and P„ 589. In misde­ Where, on an indictment for a misdemeanor in uttering meanor, liosaiu^uct a base coin, the prisoner wished to make a statement of facts refused to allow tho ac­ to the jury, before bis counsel addressed them ; and it Avas cused to make a said that Lord Denman, C. J., had allowed it to bo done ; statement to Bosanquet. J., refused to permit it, and observed that he was the jury. not informed of the circumstances of the cases decided on this Act, which lie thought could only bo meant to put prisoners in the same situation in felonies as tliey^ wero in before as to misdemeanors; and in those cases, certainly, a defendant could not be allowed the privilege of two state­ ments, one by himself and one by his counsel—Reg. v. Barrows, 2 M. and Rob., 124. And so where Reg. v. Dyer, supra, and Reg. v. Mating, supra, were cited, Byles, J., refused to allow the prisoner to state his defence before bis counsel addressed the jury, but gave the prisoner the option of either speaking himself or having his counsel to speak for him. No facts arc stated in this case, which was a mint prosecution.—Reg. v. Taylor, 1 F. and F., 535. Counsel should not It is a very improper practice for counsel for the prisoner suggest to to suggest to a jury to recommend the prisoner to mercy— jury to recoin mend R. v. McIntyre, 2 Cox, C. C., 379. prisoner to mercy.

CHAPTER XXXIY.

REPLY, AND REBUTTING CASE. ^ttorney- The Attorney-General has a right of reply, even though right of. the defendant call no witnesses—R. v. Marsden, II. and Rob., 489. The same right has been admitted also in prosecutions by a Government office, in which the counsel Government for tile prosecutor states that lie appears as the represen- prohecutions. Native 0f the Attorney-General—Reg. v. Gardner, 1 C. and K., 628 ; 7 C. and P., 677. Martin, B., has, however, stated, tiieutoJn- S^10U^ confine the exercise of this right to the General in' Attorney-General of England, in person—Reg. v. Christie, perHon. j and Fin, 75 ; see also Reg. v. BeckivitJo and Ors., 7 Cox, 505. Ry counsd Whenever an accused gives any evidence, whether written tioD^roaLCU" or parol, tho counsel for the prosecution lias the right of reply. Even if the evidence for the accused be only to his character, it gives in strictness a right of reply, although the rig!it is seldom exercised in such case. VERDICT. 1G3 And even if the accused’?? counsel, in addressing tho jury, rr.nvu^i introduce new matter (whether it be the prisoner’s own InXoonTw account of the transaction or not), without intending to raattcr* support it by evidence, the prosecutor will be entitled to reply—It v. Beard, 8 C. and P., 142 ; It v. Butcher, 2 M. and It., 228. If two prisoners are indicted jointly for tho same offence, vrhm two and one call witnesses, it seems that , the counsel for the prosecution is entitled to a general reply ; but if the offences eiii* are separate, and they might have been separately indicted, he can reply only on the case of the party who had called witnesses—Reg. v. Hagen, 2 M. and ltob., 155 ; Reg. v. °‘loni‘,,s- Jordan, 9 C. and P., 118; Reg. v. Blackburn, 0 Cox, XV,). Where there are several prisoners, and they sever in their where defences, and if one should call witnesses and the other not, the right of reply is now in practice confined to the case thoir

CHAPTER XXXV. VERDICT. A verdict is the finding of the jury, which must, in all in treason cases of treason and felony, be delivered in open Court, in the presence, of the accused. In cases of misdemeanor °i’CIlCourt* the presence of the accused during the trial is not essential—Co. Litt., 227 B.; 3 Inst., 110; Bac. Abr., ver- diet (B). It is doubtful whether a verdict can be received 1G4 VERDICT.

Qr. on Sun­ and recorded on Sunday—Windsor v. R., Law Rep., 1 Q. B., day. 317, 322 ; 35 L. J. (M. C.), 121. The verdict is delivered By foreman by the foreman, and the assent of all the jurors to a verdict of jury. pronounced by the foreman in the presence and hearing of the rest, without their express dissent, is to be conclusively presumed. General ver­ The verdict in a criminal case is either general on tho dict. whole charge (which the jury are at liberty to lind in all cases), both upon the law and fact of the case—Co. Litt., Or partial aj 228 ; 4 Bla. Com., 361; or 'partial, as to a part of tho to part of the charge. charge ; as where the jury convict the accused on one or more counts of the information, and acquit him of tho residue ; or convict him on one part of a divisible count, Or special. and acquit him as to the residue; or special, where tho facts of the case alone are found by the jury, the legal inference to be derived from them being referred to the Court. May find one Where several persons are included in the same indict­ guilty and acquit ment, the jury may find one guilty and acquit the others, others. and so vice versa, and now under 27 Vic. 233, sec. 378, the Joint re­ jury may do so, even where the accused are jointly charged ceivers. with a felonious receiving. In riot. But if several be informed against for a riot, and the jury acquit all but two, they must acquit those two also, unless it be charged in the information, and proved, that they com­ mitted the riot, together with some other person not tried upon that information—2 Hawk., c. 47, s. 8. In con­ And if, upon an information for a conspiracy, the jury spiracy. acquit all the persons accused but one, they must acquit that one also, unless it be charged in the information, and proved, that lie conspired with some other person not tried upon that information—2 Hawk,, c. 47, s. 8; and see R. v. Thompson, 16 Q. B., 832. Jury have Tho jury have a right, in all criminal cases, to find a a right to find a special verdict; such verdict must state positively the facts special ver­ dict. themselves, and not merely the evidence adduced to prove them, and all the facts necessary to enable the Court to give judgment must be found, for the Court cannot supply by intendment or implication any defect in the statement—2 Hawk., c. 47, s. 9 ; 2 East., P. C., 708, 784 ; see R. v. Francis, 2 Stra., 1015 ; R. v. Royce, 4 Burr., 2073 ; 1 Chit., Crim. L., In wound­ ing. 643. Thus where the information alleged that the accused discharged a gun against the deceased, and thereby gave him a mortal wound, and the special verdict stated only that the accused discharged a gun, and thereby killed the deceased, VERDICT. 1G5

not stating in terms that it was discharged against him, it was held that the Court could not give any judgment against tho accused—R. v. Plummer, Kel., 111. So where in robbery the information charged a robbery from the person, and the proof was of a taking up of the prosecutors money from the ground in his presence, and the special verdict, though it stated that the accused struck the money out of his hand, and immediately took it up, was held insufficient, because it did not expressly find that he was present at the taking up—R. v. Francis, 2 Stra., 1015. But if the jury find all the substantial requisites of the charge, they are not bound to follow in terms the technical language of the information. Thus, where the accused was charged with forgery of a bank note, and the special verdict stated that he erased and altered it, by changing the word “ two ” into “ live,” this was held sufficient—R. t\ Dawson, 1 Stra., 10. But where an informa­ tion for murder enumerated three wounds, and the special verdict mentioned one only, this was held to be a fatal variance—R. v. Morgan, 1 Bulstr., 87. Yet where the evi­ dence need not correspond precisely with the statement in the information, the special verdict will be good, although in the same respects it vary from the statement in the infor­ mation ; as where the fact is found to have occurred, in case of a transitory nature, at a different place within the juris­ diction of the Court, or, where time is immaterial, on a day different from that stated in the information—G Co., 47 ; 2 Boll. Abr., G89. If the verdict do not state the time when the facts omitting to occurred, it seems the Court will intend them to have happened in the order in which the jury have stated them— R. v. Keite, 1 Ld. By am, 142. The jury need not, and indeed ought not, after stating the Jury not to facts, to draw any legal conclusion, for that is the province cSciuIion. of the Court, and if they do so, and the inference drawn by them is an erroneous one, the Court will reject it as super­ fluous, and pronounce nevertheless the judgment warranted by the facts stated.—See 1 Chit., Crim. L., G45, and the cases there cited. A special verdict is not amendable as to spocmivor matters of fact; but a mere error of form may be amended, InnttT™0 even as it seems, in capital cases, in order to fulfil the ^nfendabio evident intention of the jury, where there is any note or ’ minute to amend by—2 Hawk, c. 47, s. 9 ; R. v. Hayes, 2 Stra., 844 ; R. v Hazel, 1 Leach, 882 ; R. v. Woorljall, 5 Burr., 26G1. If three offences are charged in the informa­ tion, and the sp^iial verdict state evidence which applies to 1GG VERDICT. two of them only, the Court may adjudge the accused guilty of those two, and enter an acquittal as to the residue —R. v. Hayes, supra. The Court cannot, however, on an information for felony, adjudge the accused guilty of a mis­ demeanor—11. v. Wcstbeer, 2 Stra., lido. But where it appears clearly from the facts stated in the special verdict, that the accused has been guilty of a crime, though not of the degree charged upon him in the information, the Court will not discharge him, but direct a fresh information to be Inip.-rfcct preferred—R. v. Frauds, 2 Stra., 1015. Where the verdict Verdict. is so imperfect that no judgment can bo given upon it, a venire de novo may, in misdemeanors, be awarded—R. i\ Wood fall, 5 Burr., 2GG1 ; and also, notwithstanding previous doubts upon the subject, in felonies—Campbell v. R., 11 Q. B., 7.90; in which case, says Blackburn, J., 35 L. J., M. C., 133, ‘‘There is a solemn decision of the Queens “Bench, not reversed or questioned, that a venire de novo “ will lie in a felony on an imperfect verdict ”—See Rey. v. “ Ycadon, .9 Cox, Q C., 93. Court lmy In cases of felon}’, the Court may enter a judgment of cider judg­ ment on acquittal, where the facts found by the special verdict do fact i found. not warrant a judgment against the accused—See R. v. Iluyyins, 2 Ld. Ray in., 1585 ; but this will be no bar to another prosecution for the same felony—R. v. Burridyc, 3 P. Wins., 480 ; Com. Dig. Indictment (N.) A verdict is nob vitiated by surplusage—2 Hawk, c. 47, s. 10. The verdict at the time it is delivered is recorded. But this is not absolutely requisite, and it may be recorded afterwards—R. v. Carlile, 2 B. and Ad., 3G2. Judge not A judge is not bound (unless the jury insist on having it bound to record first recorded) to receive the first verdict which the jury give, verdict. but may direct them to reconsider it. The verdict which the jury ultimately return is the true verdict to be recorded —It. v. Meany, L. and C., 213; 32 L. J., M. C., 24; per Pollock, C. B., in R. v. Ycadon, L. and C., 81 ; 31 L. J., Hoot ifying M. C., 70 Cromp., 114 ; 2 St. Tr., GO. The jury themselves \ erdict. may, before the verdict is recorded (or even promptly after the verdict is recorded—R. v. Parkin, 1 Moo. C. C., 45), rectify their verdict, and it will stand as ultimately amended —1 Chit. Grim. L., G47. This may be done even after the accused has been discharged (in pursuance of a supposed verdict of acquittal) out of the dock, if before the jury have left the. box—R. v. Vodden, Dears. C. C., 22[). Where a criminal case has been tried at JYisi Prills, the postea may be amended on sufficient cause shown, where there is a VERDICT. 107 judge’s note or other sufficient document to show that it is incorrect—K v. Virricr, 12 Ad. and Ell., 317; and sec R. v. King, 7 Q. B., 782. Where an information contains two counts for misdemeanor, to which the accused pleads not guilty, and the finding of the jury is guilt}7 on the second count (without noticing the first), whereupon judgment is passed, such judgment is not affected by reason of no finding being entered on the first count—Latham v. R.y 5 B. and S., G35; 33 L. J., M. C., 197. Upon the delivery of the verdict, if the accused be thereby Aequitt.il and dri­ acquitted on the merits, lie is for over free, and discharged ll. laiqro...... of from that accusation, and is entitled to be immediately set aa'ust>a- at liberty, unless there be some other legal ground for his detention. If he be acquitted from some delect in the pro­ ceedings, so that the acquittal could not be pleaded in bar of another indictment for the same offence, he may be de­ tained to be indicted afresh. • As to persons acquitted on the ground of insanity, sec a. initial on {'round of ante, p. 123. insanity. If the accused be convicted, it is thereupon demanded of caijin«a«;- him by the Court, in cases of treason and felony, what he has to say, why the Court should not proceed to judgmentiu fclouk‘H* against him ; and if this (which is called the allocutux) do not appear on the record when made up, it will be bad on writ of error—R. v. Geary, 2 Salk, G30; Anon., 3 Mod., 2G5. It is not necessary to demand of the accused, why the Court should not proceed to judgment and execution against him—O'Brien v. R., 2 Ilo. L., Ca., 4G5. In misdemeanors it is not usual thus to call upon the in nmdo- accused before judgment. By the Criminal Lem and Practice Statute, 18G1, 233; On trial for in informations for the offences in the first of the columns vor_ below, verdicts may be returned for the offences set opposite

First Co l umn—Continued. Sccond Coinmn— Continucd. information. INo acquittal. s. 376. Horse and cattle stealing . . . Unlawfully using, taking, or working, s. 374. Housebreaking ...... 1. Stealing in a dwelling-house to value of £5 (if the goods stolen be laid and proved of that value). 2. Larceny. Larceny as a clerk or servant, or Embezzlement. by persons employed in Her Majesty’s service, or common larccn}r. Murder...... Manslaughter. Murder of a cliild...... Concealing the birth, s. 3/2. Poison; administering. . . . Misdemeanor under s. 21, with intent to injure, s. 370. Pape, or carnally abusing a girl Assault with intent, s. 371. under 10 j’ears of age. Carnal knowledge of a girl Attempt to commit. R. v. By­ between 10 and 12. land, 11 Cox, 101. ^Receiving jointly ...... Peceiving separately, s. 378. Pobbery being armed; with Pobbery ; or assault with intent violence or in company. to rob, attended with the aggrava­ tion charged (if proved), s. 373. Piotously demolishing .... Misdemeanor, s. 3S0. Wounding with intent to do Unlawfully wounding, s. 3G9. grievous bodily harm. Maliciously inflicting grievous . 1\. v. Oliver, bodily harm. Cutting, stabbing, B. C. C., 2S7; R. v. Ycadon, 10 wounding and occasioning actual Cox, C. C. 93. bodily harm. In any offence including a charge Unlawfully wounding, s. 369. of wounding, except in murder and manslaughter. In felony or misdemeanor, if it An attempt to commit the appear that the defendant did not felony or misdemeanor, s. 367. complete the offence. In misdemeanor generally If felony proved, no acquittal, s. 368. Entry of A form of entry of the verdict. verdict on the record is as follows, after the similiter (ante 112), comes the award of venire, thus:— Form of. “ Therefore let a jury thereupon here immediately corno “ before His Honor A. B.y a judge of the said “ Supreme Court, of good and lawful men of tho “ jurors of the said colony, by whom the truth of tho “ matter may be the better known, and who aro “ not of kin to the said J. Sto recognise upon “ their oath whether the said J. S., is guilty of the “ felony in the information above specified or not “ guilty ; because as well the said J. iY., who pro- JUDGMENT. 109

“ secutes as aforesaid, as the said J. S., have put “ themselves upon the said jury. And the jurors “ of the said jury, by the sheriff for this purpose “ impannclled and returned, to wit (naming them) (< being called, come : who, to speak the truth of “ and concerning the premises being chosen, tried, “ and sworn, upon their oath, say that the said*/. S. “ is guilty (or not guilty) of tho felony aforesaid “ on him above charged, in manner and form “ aforesaid, as by the said information is above “ supposed against him.” The allocntus then follows thus :— Aiiocutus. “ And thereupon it is forthwith demanded of the said “ J. S.y if he hath or knoweth anything to say “ why the said justices here ought not upon the “ premises and verdict aforesaid to proceed to “ judgment against him; who nothing further “ saith, unless as he had before said. Whereupon ”

CHAPTER XXXVI.

JUDGMENT. A judgment is the conclusion and sentence of the law what, passed by the Court, upon the facts found or admitted in the course of the criminal proceeding against an accused. The Court may assess a tine, but cannot award any corporal rrenonm <,r punishment against an accused, unless he be personally present—2 Hawk., c. 48, s. 17; R. v. Ilann, 8 Burr., 178(j; R. v. Hollingbcrry, 4 B. and C., 829 ; 6 D. and R, 845. The accused to mitigate a fine must appear in person. On certain occasions the Court will dispense with the when (im­ personal appearance of delinquents to receive judgment— Anon., Lotto. 28. The Court refused to dispense with it in the case of an aggravated assault—Anon., Lofft., 42. A justice convicted of a misdemeanor in his office must attend in person to receive the judgment of the Court; but upon an affidavit of age and infirmity, the Court will dispense with his personal attendance—R. v. Constable, 7 I). and R., CG3, 3 B. and Adol., Go9, n. Personal appearance was dispensed with where the defendants were in Ireland, and where there were no aggravating circumstances—A non., Lofft., 58. 170 JUDGMENT.

When not, Where a defendant had suffered judgment by default on an indictment for a nuisance to a navigable river, it was held that judgment that the nuisance should be abated could not be given in his absence, and that the proper course was to sue out a writ of capias—Reg. v. Chichester, 2 Den., C. C. 458. ■CoTnpullinjj If the accused be at large and will not voluntarily attend ^accused in Court, the process for bringing him up to receive judg- jiuinncnt mcnf the same as is issued for the purpose of bringing an ° * accused into Court to answer to an information. See ante, 91. In case of a conviction fora misdemeanor, the accused, if present, will be committed, unless he be admitted to bail on his recognizance, to appear and receive judgment—R. v. Waddmgton, 1 East., 159 ; R. v. Wilkes, 4 Burr., 2589. Persons By the Statute 283, section 298, where sentence is passed ten^fur11 for a felony on a person already under sentence, either of c«nvictl?iliu imprisonment or detention to hard labour on public works, Court nmy for another crime, the Court may award the imprisonment mitcnccl'to or detention for the subsequent offence to commence at the ai?orntno° expiration of the former imprisonment or detention, although oPtiifiiibt ^ie aggregate term of imprisonment or detention respectively ° 5 ‘ may exceed the term for which either of those punishments could be otherwise awarded. Also where And where an accused is charged with several offences at oScea the same time of the same kind, he may be sentenced to fc several terms of imprisonment or penal servitude, one after time, the conclusion of the other—R. v. Williams, 1 Leach, 53G. But a man on whom sentence of death lias been actually passed, ought not (whilst under that sentence) to be brought up to receive judgment for another felony, notwithstanding he may have been under such sentence when he was tried, and omitted to plead his prior attainder—R. v. Brady, 11. and R. 2G8. . ^ When one Where an indictment for misdemeanor contained four had fur error, counts, the third of which was held on error to be bad in substance, and the defendant being convicted on the whole indictment was sentenced to four successive terms of imprisonment, of equal duration, one on each count, it was held that the sentence on the fourth count was not invali­ dated by the insufficiency of the third count, and that the imprisonment on it was to be computed from the end of the imprisonment on the second count—Gregory v. R., 15 Q. B. 974. iiow felonies By the Statute 233, section 2SG, whosoever shall be con- IIImwTii11' victed of any felony not punishable with death shall be JUDGMENT. 171 punished in the manner prescribed by the Statutes or Acts .loath to h* relating to such felony, and whosoever shall be convicted of lmni'hca' any felony for which no punishment is specially provided n„w shall, at tiie discretion of the Court be liable to bo imprisoned Jl'.r'V.?i'o1 which the accused is convicted be any felony punishable of with death, except murder, the Court may record sentence dc:ah- of death against him. But, by Statute 288, section 815, in cases of murder, it is lnmunkr. the judges duty to pass sentence of death upon the accused, and by such sentence to direct the body of the prisoner to bo buried within the precincts of the gaol in which he shall have been last confined after conviction. By the 808 section of the same Statute, the sentence of locution death, passed on any person, is to be carried into execution within the walls, or within the enclosed yard of such gaol as the Governor may by writing under his hand direct, and not otherwise or elsewhere, by the sheriff1 within whose bailiwick the gaol shall be situated. The judgment, together with the writing under the hand Autwify to of the Governor, naming the place and time of execution, is 8lR’n,l‘ what empowers the sheriff who has the legal custody of the culprit to execute. If another person, who has not the custody of the culprit, is to do execution of the sentence it would seem a distinct writ must be issued for the purpose of placing the prisoner in lawful custody of such person. The warrant for the execution of a prisoner was anciently warrantor by precept, under the hand and seal of the judge, but now cxecutlou* the judge signs the calendar or list, hereinafter mentioned, of all the prisoners’ names with their separate punishments in the margin. This, with the exception of the writing hereinbefore mentioned, under the hand of the Governor, under the 308 section, is the only warrant the sheriff lias for so important an act—King v. Auirobus, 2 A. and E., 808. At the end of each criminal sessions and general gaol calendar delivery, or circuit court, the judge’s associate makes out a rnaJo out* calendar of the prisoners tried and convicted, with their —” respective sentences. This calendar is made in triplicate, and signed by the judge and the associate, and forwarded to the Chief Secretary of the colony, who keeps one copy, another is sent to the prothonotary, and a third to the ' sheriff of the colony. 172 JUDGMENT.

Act 9 Geo. The Act 9 Geo. IV., c. 31, sec. G, made provision as to the IV., c. 31, 8. 6, repealed treatment in prison of prisoners convicted of murder, hut that Act is now, as to the Colony of Victoria, repealed by Statute 233. Record. When the judgment is pronounced it ought, with all the preceding matter, to bo entered on the record. And it is not necessary in recording judgment to refer to the Statute which inflicts the punishment—Murray i\ Beg., (in error), 7 Q. B., 700, 14? L. J., Q. B., 357. For a form of entering an award of a new trial, and of final judgment and sentence, see King v. Beg. (in error), IS L. J.; Q. B, 253. Form of A form of judgment, on conviction, is as follows :— judgment. “ Wherefore all and singular, the premises being seen “ and fully understood by the said Court here, it “ is considered and adjudged by the said Court “ here, that the said J. S., for his said offence, be “ imprisoned, etc., etc.,” (as the case may be).

Form of A form in case of an acquittal (or an allowance of a plea judgment in caso of ac- of pardon), is as follows:— qxiittal or plea of “Whereupon all and singular, the premises being seen and pardon. “ fully understood by the said Court here, it is con- “ sidered and adjudged by the said Court here, that “ the said J. S. be discharged of the premises, and “ do depart hence without delay in this behalf.” See Co. Ent., 356, 390; East. Ent.. 47-51, etc.; 2 Hale, 391 ; 1 Chitty’s Crim. L., 719. novienFelony is not Where the judgment was that the defendant “for tho collectivum. “ felony aforesaid ” should be transported for ten years, and it appeared that the information contained two counts, tho offence charged in the first count warranting a sentence of transportation for ten years, but the other not, this was held bad on error, “ felony ” not being nomen collectivum— Campbell v. B. 11 Q. B., 799, 814. Misde­ But “misdemeanor” is nomen collectivum, and there­ meanor is. fore if an information for misdemeanor contains several counts, all of which are good in law, and all found by the jury to be proved, a judgment of transportation or imprison­ ment “ for the misdemeanor aforesaid” is good—B. v. Poivell, 2 B. and Aid., 75. See Byals v. B., 11 Q. B., 781, 795. But if any one count be bad, a general judgment against the defendant “ for his offences aforesaid ” is also bad—O'Connell v. B., 11 Cla. and Fin., 155. NEW TRIAL. 173

Where there is a doubt as to whether any particular count when a is good or bad, tho difficulty may bo obviated by passing the doubtful, same judgment upon each count separately—Reg. v. Carter, 9 Jur., 178. each count. In felonies or misdemeanors, tho Court may alter the Altering and judgment passed before it becomes matter of record and th^julig? ma}" pass another—R. v. Price, 6 East, 328; R. v. Justices of Leicestershire, 1 M. and Sol., 412, 2 Hawk, c. 48, s. 20 ; Com. Dig. Indictment, N ; Fletchers Case, It. and R, GO ; R. v. Wyatt, id., 230. It is sometimes done at the assizes. And the justices at sessions have the same power during the session, because it is regarded as only one day; but they cannot do it at any subsequent period, unless an adjourn­ ment be entered on the roll.—Inter the inhabitants of St. Andrews, Ilolborn and St. Clement Danes, 2 Salk, GOG ; G Mod., 287, s. c., Bae. Abr., Court of Sessions; Dick Sess, 13, 14, 375-G. No Court can make any alteration when once the judgment Record is solemnly entered on the record ; if any material defect StSed. ° appear on the face of it, the judgment may, in England, be reversed by writ of error—R. v. Walcot, 4 Mod., 395 ; 2 Salk, C32, S. C.

CHAPTER XXXVII.

NEW TRIAL.

In treason or felony, no new trial can—except on a in felonies, case reserved under the Statute 233—be granted where the proceedings have been regular—R. v. Mawbey, G T. R, G25 ; jR. v. Inhabitants of Oxford, 13 East, 41G ; Reg. v. Bertrand, L. R, 1 P. C, 520, 10 Cox, G18 ; but if the con­ viction appear to the judge to be improper, he may respite the execution to enable the defendant to apply for a pardon —13 East, 41G. # A verdict for the accused in a case of felony cannot bo set verdict for aside, although it be against evidence and the judge’s accu"uJ- direction—R. v. Lea, 2 Moo, C. C, 9. But when on the trial of any person convicted of an when que*- indictable offence, a question of law is reserved, under the 389 section of the Statute 233, the Supreme Court have * power under the 390 section of the same Statute to direct a venire de novo, or a new trial to be had. 174 NEW TRIAL.

In mmlo- In misdemeanors, after a conviction'tlie superior Courts mcanors. may grant a new trial—G T. It., G25, 13 East., 41G ; but Inferior Courts have no such power where the merits are called in question, though they have if the proceedings have been irregular, Id.—R. v. Bay, Say. Rep., 203 ; R. v. Peters, 1 Burr, 5G8 ; R. v. Mayor of Oxford, 3 Nev. and M. 2 ; anti on this ground the proceedings should be removed by certiorari into the Supreme Court. Inferior Where a Court of Quarter Sessions had ordered a new Court granting. trial after a verdict of guilty against two prisoners, on the ground that after the jury laid retired, one of them had separated from his fellows, and had conversed with a stranger respecting his verdict, and that, therefore, the verdict was bad, on writ of error brought, it was held that the new trial had been properly ordered—R. v. Fowler, 4 B. and Aid., 273. Grounds for The grounds of granting a new trial are chiefly as granting. follow:— Where the verdict has been contrary to evidence, or to the direction of the judge ; or for the improper reception or rejection of evidence, or other mistake or misdirection of the judge ; or for any gross misbehaviour of the jury among themselves; or for surprise; or for any other cause where it shall appear to the Court that a new trial will further the ends of justice—2 Hawk., P. C., c. 4, s. 12 ; 3 Bla. Com., 3S7; 1 Cliitt. Criml. Law, G54 ; R. v. Fowler, 4 B. and Aid., 273 ; R. v. Whitehouse, Dear., C. C., 1. After In general, a new trial cannot be granted in favour of a acquittal. prosecutor after the defendant has been acquitted, whether on an indictment for a misdemeanor or a felony—R. v. Mann, 4 M. and Sel., 337—R. v. Sutton, 5 B. and Ad., 52. Even though the verdict appears to he against evidence— Against R. v. Reynell, G East., 315; 2 Smith, 407; S. C., 4 Bl. evidence. Com., 3G1 ; or was upon the misdirection of the judge— Misdirection II. v. Cohen, 1 Stark, N. P. C., 51G; 1 Cliitt., C. L., G57. A new trial will not be granted after an acquittal upon an indictment for obstructing a highway, on the ground that the verdict is against evidence—R. v. Johnson, 2 E. and E., G13 ; 29 L. J. M. C., 133. if substance Wherever the substance of a criminal proceeding is civil pro^edills^ a new trial may be granted after a verdict for the defendant, civil* on the ground either of misdirection or of the verdict being against the evidence—R. v. Russell, 3 El. and Bl., 942 ; 18 Jur., 1022, 23 L. J., 31. C., 173; see R. v. Rot- field, 1 Jur., N. S., 594, Q. B. But where the verdict NEW TRIAL. 175

Ikes been obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutors witnesses, or by surprise, a new trial may be granted—2 Salk., G44 ; 2 Iiawk., c. 47, s. 12— llcg. v. Whitehouse, Dears., C. C., 1 ; but see It. v. Fenwick, 1 Sid., 153; li. v. Read, 1 Lev. 9. And when the defendant has been acquitted on an indict- c«>mt win ment for not repairing a road, etc., the Court will, under very special circumstances, suspend the entry of judgment so as to prevent a plea of autrefois acquit, and enable the parties to have the question reconsidered upon another indictment, without the prejudice of a former judgment—A\ v. Wands­ worth, 1 B. and Aid., G3; 2 Cliitt. Rep., 282 ; It. v. Challicombe, G Jur., 481 ; but see It. v. Inhabitants of Burban, 5 M. and Sel., 392. No motion for a new trial is allowed unless tho defendant, or, if more than one, the defendants, who have been con-in ^oult- victed, be present in court when the motion is made—R. v. Lord Cochrane, 3 M. and Sel., 10 n. ; Reg. v. Caudivell, 17 Q. B., 503; Rowland's Case, 2 Den., C. C., 372, note (a.); Howard v. Reg., 11 Law T., G29 ; Rex v. Teal, 11 East., 307 ; Rex v. Ashen, 3 M. and S., 9 ; R, v. Fielder, 2 D. and R., 4G. But this rule does not apply where the offence of which if in custody the defendant has been convicted is punishable by line only onij?abl0 R. v. Parkinson, 2 Den. C. C., 459 ; or where the defendant is in custody on criminal process—R. v. Holcnibury, 4 B. and Cl, 329. . . Whenever it is necessary for a defendant to be present, if he be already in custody, lie must obtain a Habeas Corpus to bring him into court—Rex v. Spragg, 2 Burr. R., 930. Amotion for a new trial on behalf of defendant mustTimoof be made within the first four days of term, though the Slew nor argument will be postponed till the defendant is brought up for judgment—It. v. Iletherington, 3 Jur., 529, Q. B. The application cannot in general be made after motion Aftcrmoti

CHAPTER XXXVIII.

ARREST OF JUDGMENT.

May be The accused may at any time between tho conviction and moved be­ tween con­ the sentence, but not afterwards, move the Court in arrest of viction and R. v. Holt sentence. judgment, , 5 T. R., 445 ; and if he omits to do so the Court, if on review of the case it be satisfied that the accused has not been found guilty of any offence in law, will of itself arrest the judgment—R. v. Waddington, 1 East., 14G. ^ Grounded on The motion can be grounded only on some objection defects on face of the arising on the face of the record itself—Sutton v. Bishop, 4 record. Burr. 2287 ; Prescott v. Carpenter, 1 Ld. Raymd., 231. But not for By the 353 section of the Statute 233, no motion in arrest defects which mitjht of judgment is allowed for any defect in any information have been which might have been taken advantage of by demurrer, or disused of by demurrer motion to quash the information. or motion to quash the And by the 332 section of the same Statute, no informa­ information. tion for any indictable offence shall bo held insufficient for Omission of the want of the averment of any matter, unnecessary to be certain aver­ ments not proved, nor for the omission of the words—as appears upon fatal to an the record—as appears by the record—with jovee and arms information. —against the peace. Or for the mention of the words— against the form of the Statute, instead of against the fomn of the Statutes, or vice versa, or for that any person men­ tioned in the information is designated by a name of office or other descriptive appellative, instead of his proper name. Or for omitting to state the time at which the offence was committed, in any case where time is not the essence of the offence—or for stating the time imperfectly—or for stating the offence to have been committed on a day subsequent to the finding of the information, or on any impossible day, or on any day that never happened. Or for want of a proper and perfect venue; or for want of a proper or formal conclu­ sion ; or for want of, or imperfection in, the addition, of any defendant. Or for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price of the amount of damage, injury or spoil is not of the essence of the offence. Appearance The accused must be personally before the Court to move an of the accused arrest of judgment; because there is the strongest presump­ necessary. tion possible that he is guilty—R. v. Spragg, 2 Burr, 930-931. And so if several be found guilty they should, it seems, be CROWN CASKS RKSKRVKI). 177 all present—R. v. IloUinqhorrif, G D. and R., 345, 4 B. and C., 329. ~ ^ _ > It should also seem that wlicro the judgment against the wuounot. accused could not he corporal, but only by the payment of a fine, his personal appearance is not necessary—Ret/. v. Tern- phman, 1 Salk, 55-5(5 ; Dnhix Cusp, id., 400 : 1 Ld. llaymd., 2(57. * When a motion in arrest of judgment is made at the Rcspitm* assizes, and the judge thinks there may be good grounds for execution arresting it, the sentence is respited, to take the opinion of the Court on a case reserved. If the judge thinks other­ wise, he then passes sentence, but he may nevertheless respite execution, in order to take tie opinion of the Court on a case reserved. If the judgment be ultimately arrested, all the proceedings will be set aside and judgment of acquittal Avill be given ; 1 ' but a subsequent information may at any time bo preferred, —It. v. BurrUlr/e, 3 P. Wms., 499 ; Pin/.r’s Case, 4 Co. 39 b ; Com. Dig. Indict. (N) 4 Bla. Com., 375.

CHAPTER XXXIX.

CROWN CASKS RKSKRVKR Tho Statute 233, sec. 389, enacts, if on the tried of any Qmoim, „r person convicted of any indictable offence in or before any rrZrsl'iln Court of criminal jurisdiction, any question of dilliculty tli;iIs of in point of law shall have arisen, it shall be lawful for such Court in its discretion to reserve such quest ion of law for rii!!!in'li the consideration of tho judges of the Supreme Court, and juii,‘Uctiou- in any such case to respite tho execution of the judgment on such conviction, or postpone the judgment until such question of law shall have been considered and determined ; and in either case the Court, in its discretion, shall commit the person convicted to prison, or shall take a recognizance of bail with one or more sullicient surety or sureties, and in such sum as the Court shall think fit, conditioned to appear at such time or times, and place, as the Court shall direct, and receive judgment, or to render himself in execution, as the case may be. Any question of law which shall have arisen on the trial mny lie reserved ; but if a fact lias occurred during the trial, rr^rvei? bl though not discovered or discussed till alter verdict and sentence upon which a question of law arises, it is a matter N 178 CROWN CASES RESERVED. of doubt whether, although the judge may have respited execution and reserved the question, the Court has jurisdic­ tion to consider it. Fourteen judges were very much divided on this subject in a case where, on a trial for felony, one of the jurymen impannelled answered to and was sworn on the jury in the name of another juryman, and a verdict of guilty was found, and sentence passed, and on the next day the mistake was discovered, and the judge reserved tho question as to the effect of the mistake—Pollock, C. B., Erie, Williams, Crompton, Crowder, Willis, Byles, J. J., and Channell, B., deemed it not a case within the jurisdiction of the Court, or proper for its interference; and Lord Camp­ bell, C. J., Cockburn, C. J., Coleridge, Wightman, J. J., Martin, and Watson, B. B., held it a mistrial, and a proper subject for the interference of tho Court—Reg. v. Mellor, D. and B., 168 ; 27 L. J., M. C., 121. Where an accused pleads guilty, no point of law can bo pleadsguiitj. reserved—Reg. v. Clarice, L. ltep., C. C., 51. judgment on If a question of law has been raised by demurrer on tho emurrer. anci judgment given thereon, the judgment cannot, on a case reserved, be reviewed by the Court—Reg. v. Faderman, 1 Den., C. G, 565 ; but it is to be observed that it does not follow of necessity from this decision that all questions that can be raised by demurrer must bo so raised, for defects apparent on the face of the record and available on motion, to quash the information, or in arrest of judgment, are cognizable by the Court, as where the indictment is insuffi­ cient in law—Reg. v. Webb, 1 Den., C. C., 310; 18 L. J., M. C., 39 ; Reg. v. Larkins, Dears., C. C., 365 ; 23 L. J., M. C., 125 ; lieg. v. Ryland, 37 ; L. J., M. C., 10 ; L. R., I. C. C., 99. Or where a want of jurisdiction appears—Reg. v. Martin, 1 Den., C. C., 398 ; 18 L. J., M. C., 137. Or where repugnancy on the record is alleged—Reg. v. Crad­ dock, 2 Den., C. G, 31 ; 20 L. J., M. C., 31. Question* of But only questions of law and not of practice are reserv- ofWpractico.° able, and therefore the mode of directing a jury as to tho necessity of corroboration of the testimony of an accomplice, is not such a matter as can be considered by the Court— R. v. Stubbs, 19 Jur., 11 L5. statement As a general rule, what a jury may say in recommending a in^ecom-11^ prisoner to mercy, is not a matter upon which a case should prisonefto ^e reserved for the opinion of the Court—Per Lord Camp- mercy. bell, C. J., in Reg. v. Trebilcock, D. and B., 460 ; 27 L. J., M. C., 103. C'W* re­ By the 390 section of the same Statute, the Court by served. CROWN CASES RESERVED. 179 which such question of law may have been so reserved, shall thereupon state a case, setting forth the question or questions of law, which shall have been so reserved, with tho special circumstances upon which the same shall have arisen, and the judge or other person presiding in such Court shall sign and transmit the same within a reasonable time to the judges of the said Supreme Court, and the said judges shall have power to hear and finally determine the said question or questions, and thereupon to affirm, amend, or reverse any judgment which shall have been given on the information on the trial, whereof such question or questions have arisen, or to avoid such judgment, and to order an entry to bo made on the record that in the judgment of the said judges the party convicted ought not to have been convicted, or to order judgment to be given thereon at some other session of gaol delivery, or general sessions of the peace, if no judg­ ment shall have been before then given, or to direct a venire dc novo, or new trial to be had, or to make such other order as justice may require. It will be seen from the above section that after a ques- Duty of tion of law lias been reserved, it is the duty of the judge or ’ other person presiding in the Court to state by a case signed caad- the question of law, and the circumstances under which it arose, and to transmit the same to the judges of the Supreme Court. The judges have power to hear, and finally determine, Jnrwiirtion the said question or questions, and to affirm, amend, or0 our reverse any judgment which has been given on the informa­ tion, or to avoid the judgment, and to order an entry to be made on the record that in their judgment the accused ought not to have been convicted or to order judgment to be given thereon at some session of gaol delivery, or general sessions of the peace, if no judgment had before then been given, or to direct a venire dc novo or new trial to be had, or make such other order as justice may require. The power given by the foregoing section to direct a venire de novo or new trial to be had, is a material addition to the English Act—11 and 12 Vic., c. 78. This power has been exercised by the Supreme Court, Victoria, in the case of Reg. v. Whelan, 13 Dec., 1807. The words, “Make such other order as justice may what order require,” were confined by Parke, B., in It. v. Faderman, 1 Den. C. C., 565, to ordering a party to be let out on bail, or to do any other thing of the like kind which justice may require. The question whether these words give the power, n 2 180 CROWN CASES RESERVED. where there had been a mistrial, to the Court to order a venire de novo to issue after the Court had avoided the judgment was much discussed in Reg. v. Mellor, D. and B., 4G8 ; where a majority of the judges, comprising Pollock, C.B., Erie, Williams, Crompton, Willis, J. J., and Channell, B., held that the Court had no such power; but Lord Campbell, C. J., Cockburn, C. J., Wightman, J., and Watson, B., held the contrary. Coleridge, J., thought the Court should merely order the judgment to be avoided, and then in the course of things the accused would be tried again ; and Martin, B., thought the Court might make an order that a trial should take place, but not a venire de novo. The Court did, however, award a venire de novo in R. v. Ycctdon, L. and C., 31. Argument Counsel who has defended a prisoner at the trial will not by counsel. be allowed to appear before the Court and argue the case without the prisoner’s consent, but as amicus curiae the Court will listen to any reference to authorities bearing upon the point—Reg. v. Thomas, L. and C., 313. Counsel in arguing the case must confine themselves to the facts as they appear on the case stated to the Court— R. v. Smith, 1 Den., C. C., 512 ; and to the question or questions of law reserved by the case—R. v. Blalcemore, 2 Den., C. C., 410 ; and, if the case is defectively stated, application can be made to the Court under sec. 391, to have it sent back for amendment. Who to Counsel for the prisoner begins, and has a reply. Though begin. no counsel appear on behalf of the prisoner, counsel will be heard for the Crown—Reg. v. Martin, 1 Den.,C. C., 398 ; and though no counsel appear for the Crown, prisoner’s counsel will be heard—Reg. v. Martin, 1 Den., C. C., 332 ; Reg. v. Garner, Id., 329. Where no counsel appear the Chief Justice or presiding judge reads the case, and then judgment is pronounced, as in other cases. Power to By the 391 section of the same Statute the judges, when send cruse back for a case has been reserved for their opinion, have power, if amendment. they think fit, to cause the case to be sent back for amend­ ment ; and thereupon the same is amended accordingly, and judgment delivered after it has been amended. Tract ire as It seems that if either party discovers, before the hearing P'. of the argument, that a point has been omitted from tho case reserved, which should have been inserted in it as having been reserved at the trial, the proper course is to communicate with the judge, who will doubtless insert it if requisite—Per Wilde, C. J., R. v. Smith, 1 Den., C. C., 512. CROWN CASES RESERVED. 1S1 The Court will not send back a case to be re-stated for the purpose of having evidence given at the trial inserted upon the application of counsel before the case is gone into, but will wait till it appears on the argument that the ease lias been imperfectly stated—Her/, v. llilton, 1 Bell, C. C., 20 ; Reg. v. Berlins, 2 Den., C. C., 459 ; but even then it will not be sent back in order to have evidence given at the trial inserted for the purpose of raising an objection purely technical, and beside the merits—R. v. Brummitt, L. and C., 9. Cases were amended in Reg. v. Hey, 1 Den., C. C., GO2; Reg. v. Berlins, 2 Den., C. C., 459. . By the said section 390, the judgment and order, if any, rroo.im© of the judges is to be certified under the hand of the pre- m''ni"nh~ siding Chief Justice, or senior of the judges, to the associate, lament, clerk of assize, or clerk of the peace, as the case may be, or the deputy of such clerk, who is to enter the same on the record in proper form, and a certificate of such entry under the certificate, hand of such clerk or deputy, in the form as near as may be or to the effect following :— “ To the Sheriff of , and the gaoler of Form of. “ , and all others whom it may “ concern. “Whereas at the Court of , for the , “ held on the day of , A. D., before “ , A. B., late of , labourer, having “been found guilty of felony (and here slate the “substance of the judgment, if judgment has been “given), that (state the substance) the Court “before whom lie was tried, reserved a certain “question of law for the consideration of the “Judges of the Supreme Court, and judgment was “postponed (or if the case be so), execution was “ thereupon respited in the meantime. “ This is to certify that it has been considered by the “ said judges that the judgment aforesaid be “ annulled (or otherwise as the case may he), and “ you are therefore required forthwith to discharge “the said A. B., from your custody. “R F., Clerk of the With the necessary alterations to adapt it to the circum­ stances of the case, it is to be delivered or transmitted by him to the sheriff or gaoler, in whose custody the person convicted is. Which certificate is to be a sufficient warrant to the Sufficient 182 COMMITMENTS FOR CONTEMPT AND PERJURY. warrant for sheriff or gaoler for the execution of the judgment, and execution of judgment execution is thereupon to be executed on the judgment, or or discharge of accused. for the discharge of the person convicted, if the judgment is reversed or avoided. In England, an accused, as the law now stands, is not strictly and irrevocably bound by the refusal or omission of a judge to reserve a point in his favour. He has a remedy, but it is in point of fact almost useless, on account of the difficulty and expense of procuring it. The relief alluded to is the Supreme Appeal by petition to the Crown, which is referred to the Lord Chancellor. The Crown, through the Lord Chancellor, will, on a proper case made, direct the body of the judges to hear the point argued. In the case of John Wait, 11 Price, 518, the Lord Chancellor having considered a point referred to him, directed tho twelve judges to hear the same argued. The same was done in Fauntleroy's Case, 1 Moo., C. C., o2.

CHAPTER XL.

COMMITMENTS FOR CONTEMPT AND PERJURY. Contempt at By the 22nd section of the Statute 267, it is enacted that: General Sessions. If any person duly summoned to attend as a juror or duly subpoened to attend as a witness at any Court of general session, in any proceeding, neglect to appear and give evidence, or refuse to be sworn, or to answer any lawful question, without some sufficient excuse, or prevaricate in giving his evidence, or if any person wilfully interrupt the proceedings of such Court, or conduct himself disrespect­ fully to the chairman thereof, or to any magistrate while sitting therein, or hinder, obstruct, or assault any person in attendance on such Court, or any officer thereof in the lawful execution of his duty, every such person shall be guilty of contempt of Court. And the chairman either on his own view, or on the oath of some credible witness, may punish any person guilty of such contempt in a summary way, by imprisonment in any of Her Majesty’s gaols in the said colony, for any time not exceeding three months, or by fine not exceeding fifty pounds, and if such fine be not forthwith paid, by imprisonment in any such gaol as aforesaid for any time not exceeding three months, unless such fine be sooner paid. P°fore Jus­ And by the 89th section of the same Statute, if any person tices. wilfully misbehave himself in any Court of Petty Sessions, COMMITMENTS FOR CONTEMPT AND PERJURY. 183 or wilfully interrupt the proceedings of any such Court, or in the opinion of any be guilty of any prevarication m giving evidence to such Court, he shall, on conviction thereof before a magistrate, forfeit any sum not exceeding five pounds, or may be imprisoned for any period not exceeding forty-eight hours, and such person may be forth­ with convicted on view by and before the justice in whose presence the offence is committed. Besides the power given by these enactments, every Court r.voryOmit of record has attached to its jurisdiction power to fine and to ha< commit for contempt committed in the face of the Court, ,iMOnr!‘,<. such as rude and contumelious behaviour, by obstinacy, contempt, perverseness, or prevarication, by breach of the peace or any wilful disturbance whatever—Exparte Pater, 5 Best and Smith, 299. The of fonder in such cases may be instantly apprehended oubmior and imprisoned at the discretion of tho judge without any !’1,;pi,!iu.n«ica further proof or examination. But a contempt of Court, being a criminal offence, no person can be punished for such lu.rtmntyof unless the specific offence charged against him be distinctly AU3"crmg‘ stated and an opportunity given him of answering—In re Pollard, Law It., 2, P. C., 10G. Persons committed for contempts are not bailable. Cannot ba killed. A byestander in the Court may be fined and imprisoned land or. for contempt—R. v. Stone, G T. R, 530. A Court of General Gaol Delivery has power to make an iv.Muting order to prohibit the publication of the proceedings, pending the trial, and to punish for disobedience—II. v. Clement, 4 Bar. and Aid., 218. And by the 3rd section of the Statute 251, no action or xo notion information shall be maintainable against any person for Sf..1"1' publishing a faithful and accurate report of proceedings in any Court of justice, or any Court of Petty Sessions, or inquiry before a coroner, or other legally constituted Court. Provided it shall not be lawful to publish any matter of an pu Mionf ion obscene or blasphemous nature, nor any proceedings in any Court which may not be concluded, and which the judge, nT,.>'Court magistrate, coroner, or other presiding oihcer, may pronounce eluded may it improper to publish at their then stage. A judge at Nisi Prius has power of fining a defendant for Contempt in contempt committed by him in the course of addressing aJuryby11* jury—R. v. Davison, 4 B. and Aid., 329. defendant. A barrister may be punished for contempt of Court, even By barrister, for language used in the discharge of his functions as advocate —Exparte Pater, 5 Best and Smith, 299. 184 RESTITUTION OF STOLEN PROPERTY.

Commit­ A commitment for contempt being a commitment for ment must bo for a time punishment must be for a time certain, and consequently certain. a commitment for contempt till the defendant bo discharged by due course of law is bad—R. v. James, 5 B. and Aid., 894. Court of A Court of Assize is a superior Court, and consequently assize a superior in a warrant of commitment by a judge of Assize for con­ Court. Warrant tempt, the adjudication for contempt may be general, and the may bo particular circumstances need not be set out—In the matter general. Fernandez, G H. and N., 717. Newspaper Any comments in a public newspaper, calculated to excite comments may l>e a feelings of hostility towards persons who are liable to be tried contempt. on a criminal charge, arc a contempt of the Court in which the proceedings arc pending—Reg. v. Dohcrt//, 5 Cox., C. C., 318. Perjury at Any judge of the Supreme Court, chairman of General trial or inquiry be­ Sessions, commissioner of Insolvent Estates, judge of any fore Supremo Court Court of Becord or Court of Petty Sessions, any justice or General Ses­ sions, &c. any sheriff, or his deputy, or coroner, before whom any trial or enquiry is held may direct any person, who may appear to them to bo guilty of perjury to be prosecuted, and to commit him for trial—Act 233, sec. 393. In such eases In cases where such a committal has been made it has been diflicult to prepare case. found very diflicult to prepare the case against the accused, who is also placed at a disadvantage in making his defence, not knowing the precise charge against him. In the Bail Accmsecl Court in England on the 14th Nov. 18GG, in a caso committed by judge and of Adams v. Parker, Blackburn, J., committed the defend­ ordered to bo taken ant at once for perjury, and directed him to be taken before justices. before a magistrate, so that tho whole matter should be brought out.

CHAPTER XLI. RESTITUTION OF STOLEN PROPERTY. Tho owner of stolen By the Statute 233, section 399, if any person guilty of property any felony mentioned in the second part of that Act, in prosecuting thief or stealing, taking, obtaining, extorting, embezzling, converting receiver to conviction or disposing of, or as is mentioned in the seventh part of ahull have of that Act, in knowingly receiving any chattel, money, restitution of his pro­ valuable security or other property whatsoever, shall bo perty. informed against for such offence by or on behalf of the owner of the property or his executor or administrator and convicted thereof, in such case the property shall be restored to the owner or his representative ; and in every such case, the Court before whom any person shall be RESTITUTION OF STOLEN PROPERTY. 185 tried for any such felon}" or misdemeanor, shall have power to award from time to time writs of restitution for the said property or to order the restitution thereof in a summary manner. And if any person informed against for such felony or misdemeanor as in the preceding part of such section shall have been acquitted thereof, it shall he lawful for the Court, in its discretion, if it shall be satisfied that any property to which such information relates has been so stolen, taken, obtained, extorted, embezzled, converted, disposed of, or received, to award, cause writs of restitution, or to order in n summary manner the restitution of the property to the owner of, or his representative as aforesaid. Provided that if it shall appear before any award or order i^ivpu.miw made that any valuable security shall have been bond jide i1V.mi-rV»r',e paid or discharged, by some person or body corporate, liable l^nlnJnt to the payment thereof, or being a negotiable instrument, shall have been bond fide taken or received, by transferor delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award nor order the restitution of such security. Provided also that nothing in such section contained shall Not to nllI,i7 apply to the case of any prosecution of any banker, merchant, attorney, factor, broker, or other agent, entrusted with the possession of goods, or documents of title to goods for any with misdemeanor against such Act. This section gives power to the Court in its discretion to ra-e,ration restore property in cases where a prisoner is acquitted, if it is ^ty satisfied the property to which the information relates has been stolen, taken, obtained, extorted, embezzled, converted, disposed of, or received. Where a prisoner was convicted of stealing a bill of Property exchange for £100, and a considerable sum of money in specie, and the evidence tended to show that lie must have purchased a horse with part of the proceeds of the bill, the cutor.1 ’ Court ordered the horse to be delivered to the prosecutor— Ilex. v. Staunton, 7 C. and P., 481. In case a prisoner pleads guilty. See Reg. v. Macldin, 5 Cox., C. C., 210. A judge has no power at Common Law, or by Statute, to other pro- direct the disposal of property in the possession of a con­ victed felon, not belonging to, or not being the proceeds of property that belonged to the prosecutor—Reg. v. The City 18G ESTREATING AND DISCHARGING RECOGNIZANCE.

of London, 1 E. B. and E., 509 ; Iteg. v. Pearce, 7 Cox, 20G. ... . Order of The order of restitution is cumulative to the ordinary JumSativo13 remedy by action, and is not a condition precedent to such renSiiea remedy. And the only consequence of the Court refusing * an order is to leave the owner to the ordinary remedy by action. And in such case the owner may maintain trover for the stolen goods after the conviction of the thief, for though the goods have been sold in market overt, the pro­ perty in them is revested in the owner, on conviction of the thief—Scattergood v. Sylvester, 15 Q. B., 50G. Thocourt The Court of Queens Bench had at Common Law no juris­ ts e°phi*mer* diction to issue a writ of restitution, except as part of the the proper jU(^omen^ 011 a11 aPPeal °f larceny, and 21 Hen., 8 C., 11 ; court toand 24 and 25 Vic., C. 96, Sec. 100 (Statute 233, sec. 399), restitution. only confer this jurisdiction on the Court before whom the felon has been convicted. Where therefore a person has been convicted of house-breaking and larceny, before the Central Criminal Court—the Court of Queen’s Bench has no power to award a writ of restitution of the proceeds of the larceny—The Queen v. the Lord Mayor and Corporation of London. 4 Law Itepts., Q. B., 371. where pawn- In Ireland it was held on the 9 Geo. IV., c. 55, sec. 50 vances ^ (similar to 7 and 8, Geo. IV., c. 29, sec. 57), that a prosecu- ctoieiTgoods tor ought not to be ordered to pay a pawnbroker the money advanced by him on stolen goods which are ordered to be restored to the owner, the Court having no jurisdiction to make such an order—Rex v. Sargent, 5 Cox, 499.

CHAPTER XLII. ESTREATING AND DISCHARGING RECOGNIZANCE. Estreating Where any person charged with an indictable offence has iance3°oflu” been admitted to bail, or any witness in any case is bound —tf by recognizance to appear and give evidence, does not so bail and appear at the Court on the day named in the recognizance, bounTover. after having been called in open Court, the Court will, on the application of the Crown, estreat the recognizance of such person and his bail, or of such witness. Effected By the Statute 241, sec. 5, such estreat is effected by some itemcd^ra'"n judge of the Court before which, or the justice before whom tSsstatut* the same shall he forfeited, certifying under his hand (4th 1865. schedule) that the forfeiture has taken place, and forwards ESTREATING AND DISCHARGING RECOGNIZANCE, IS7 to the law ofiicer the recognizance and certificate. Upon Judgment, receipt thereof a judgment is signed in the Supreme Court for the amount of the recognizance and £5 costs ; such II fncnlod judgment may be vacated either before or after execution by the Supreme Court or any judge thereof. A rule nisi or summons is issued calling upon the law officers or one of them to show cause. This rule nisi, or summons is sup­ ported by such affidavits as will prove to the satisfaction of the Court or judge that the judgment has been satisfied, or that according to equity and good conscience and the real merits and justice of the case the defendant ought not to bo required to satisfy the same. The Governor in Council may at any time remit any fine or forfeiture. A recognizance to appear cannot be discharged unless per­ formed, but it may be respited—Rex v. Drummond, 11 Mood, 200. fllrraod1 but The Court refused to discharge without the preferment of it may bo. any bill, the recognizance of a prosecutor. But where parish officers were under recognizance to prosecute a pauper, a judge at assize permitted the recognizance to he with­ drawn, the party having been in prison for several weeks, and the parish being unwilling to indict—Rex v. Paul, (3 U. and P., 323. Where a prisoner has been committed for trial at the assizes, and parties bound over by a magistrate to prosecute and give evidence, the judge will not discharge the recogni­ zance on an intimation that the Attorney-General does not think it a proper case to prosecute—Reg. v. Frcaklcy, 0 Cox, 75. When the trial of prisoners had been successively post- mB7 poned for two assizes, in consequence of the absence of a charged, material witness, and the affidavit on ■which the application was made for further postponement stated that the witness in question was believed to have gone to India as a soldier, or that there ‘was not any prospect of his speedy return, the judge ordered the recognizance of the prosecutor to be dis­ charged, and discharged the prisoners without compelling them to enter into any recognizance for their future appear­ ance—Reg. v. Bridgman and Another, J Carr and Mar., 271. b A prosecutor who has requested the magistrates to take his recognizance to prosecute on a charge within the 22 and 23 Vic., c. 17, see. 2, which includes perjury, subornation of perjury, conspiracy, obtaining money or property by falso 188 DISCHARGING PRISONERS. pretences, keeping a gambling bouse, a disorderly bouse, and any indecent assault, wlien the magistrates have refused to commit the person charged, must either go oil "with the prosecution, or have bis recognizance forfeited, as it would defeat the objects of the Statute if lie were allowed to move to have his recognizance discharged—Reg. v. Hargreaves, 2 F. and F., 790.

CHAPTER XLIIL DISCHARGING PRISONERS. on acquittal A prisoner on being acquitted by a verdict of a jury is commonat entitled to liis discharge in respect of the crime alleged Law* against him, and lie is immediately set at liberty, unless there be some legal grounds for his detention—Rex v Bur- ridge, 3 P. Wins., 500. Discharge of And by the 14th Geo. III., c. 20, it is provided that ncq\iittL°D every prisoner charged with any felony, or any other crime, Suinao. or as an accessory thereto, before any Court holding criminal jurisdict ion within England and Wales, against whom no bill of indictment shall be found by the grand jury, or who on his or her trial shall be acquitted, or who shall be discharged for want of prosecution, shall be immediately set at large in open Court without payment of any fee, or sum of money to the sheriff, gaoler, or keeper of the gaol, or prison from whence he or she shall be so discharged, and set at liberty, for or in respect of such discharge. And the Statute 233, sec. 321, provides for the discharge of prisoners against whom the Attorney-General declines to file an information—See Ante, p. 53. On the But where a person is acquitted on the ground of insanity, funnily* it is provided by Statute 233, sec. 358, that the Court shall order such person to be kept in strict custody, in such place and in such manner as such Court shall sec fit, until the Governor shall give further orders for his safe custody. Disnhnrssor A commissioner of gaol delivery may at his discretion dis- onthcireoS- charge or continue on their commitments in gaol prisoners iS-iso^craof committed for trial, but against whom the witnesses do when vit- not appear being bound over to a subsequent session— S-rdo,,ot Ca.se liks. and Ry., 173. _ _ under Prisoners who have been committed for trial, and who I'vrim^Act. are not tried within the period prescribed by the Habeas Corpus Act, 31 Chas. II., c. 2. are entitled to be discharged. DISCHARGING PRISONERS. 189 The 7th see. of that Act, provides that if an}- person or 7th aoetion, 1 l:\be.-vs persons shall he committed for high treason, or felony plainly Corpus Act, :a Cliax. 11., and specially expressed in the warrant of commitment, upon C. 2. his praj’er or petition in open Court, the lirst week of the term, or first day of the sessions of oyez and terminer or If prisoner pr:«v to be general gaol delivery, to be brought to his trial, shall not be < rieil on fir t, wtx'k of t'Tin indicted some, time in the next term sessions of oyez and or lirst day of pos-iotn, ami terminer, or general gaol delivery, after such commitment, it lie is not. shall and may be lawful to and for the judges of the Court intlicbxl at next fivsiona of the King’s Bench, and justices of oyez and terminer or after com­ mitment general gaol delivery, and they arc hereby required upon lie is eti) itled motion to them made in open Court the last day of the term to bo set at liberty on sessions or gaol delivery, either by the prisoner or any bail. one in his behalf, to set at liberty the prisoner upon bail, unless it appear to the judges and justices upon oath made that the witnesses for the King could not be pro­ duced the same term sessions or general gaol delivery. And if any person or persons committed as aforesaid upon Prisoner if lie j n ay a.i his prayer or petition in open Court the lirst week of the afoivs.ud an Sup. Ct., Port Phillip,

INDEX.

INDEX

Abduction, TAGIt defined - - . 2 Aboriginal Natives, (see oaths) 105

Abortion, defined - Accessory, . liow dealt with ...... 61, 02, 05 where triable* ...... 63 in murder ------80 Accomplice, bail of ------50 dying declaration of ------152 Accu^lap) arrest of (see arrest) ------12 when arrested to bo taken beforo magistrate - - 14, 33 escaping to other colonies ------25 searching ------.---25 hand-culling -.------25 seizing property of------2G restoring property taken from ------23 when summoned, if ho does not appear, warrant may issuo 53 attendance of witnesses against ----- 53 magistrates to examino witnesses on oath - - - - 39 depositions should bo taken in his presence, and that of magistrate ------33 should hear each witness and his manner of answering - 39 should he invited to cross-examino witnesses - - - 39 depositions to bo read to ------40 caution to ...----.-40 Etatcmcnt should bo taken down and read over to - - 40 but not taken on oath...... 40 witnesses on behalf of ------40 remanding ------42 when brought up for further examination, former deposi­ tions should he read over ------42 discharge or committal of ------42 has no absolute right to counsel on the hearing beforo justices of an indictable charge - - - - - 42 discharge of, when not to bo jnosecuted - - - - 53 witnesses to be bound over - - - - . - 43 when entitled to a copy of (lie depositions - - - 43 when not ------43 depositions of, b< fore coroner ------44 when committed by coroner, should bo taken beforo a magistrate ------44 bailing ------45 when ho has a right to bo bailed ------47 may bo arrested when on bail, if suspected of an intention to abscond ------43 O 194 INDEX.

Accused— continued. rAGB transmitting deposition taken against...... 52 when not to be indicted, proceedings - - - - 63 process against, after information tiled - - - 91 arraignment of ------65, 95 when ho must bo placed in tho dock - - - - 96 must plead at onco ------107, 141 challenging jurors ------57,133 court may postpone trial of ----- 107,141 confessions by------146 adjournment of trial of ------156 when juror on trial of, gworn in a wrong namo - - - 157 related to accused 157 illness of, on trial...... 157 defence of ------15S, 161 statement of ------15S acquittal and dischargo of------1C7 calling up for judgment ------167 cumulative sentence upon ------170 compelling attendance of, to receive judgment - - - 170 discharging ------183,180

Adjournment, of the hearing beforo magistrates...... 42 proceedings after ------42 of trial ------156 Admission, (see confessions) ------146

Affirmation, of persons nnwilling to bo sworn ----- 105 of aboriginal natives, and infants under seven years of ago 105 of jurors ------126 ,, form of...... 126 Against ted form of the Statute, unnecessary...... 176

Aiders and Abettors, when offence pnnishablo on snmmary conviction - - - 37 Amendment, of variances not material to tho merits - - 76, 77, 83 court may amend defects in information - - - - 107 Aitearance, process to compel, npon summary proceedings - - - 38 „ upon an information...... 91 Apprehension, (see Arrest)...... 12

Arraignment, what ------95 accused must be present...... 95 placing accused at bar without irons - - - - 96 accused must enter the dock in case3 of felony - - - 96 ,, must signify ho is tho person referred to in tho information ------96 ,, when on bail should be searched beforo entering the dock...... - - 90 stating to the accused tho charge in the information - - 96 accused to be asked if guilty or not guilty - - - - 96 reading the information to the accused - - - - 97 by signs - - - -...... 97 when accused deaf and dumb...... 98 INDEX. 195

AbbAIOXMEKT—confirmed. r±a» mode of, and recording plea - - " - - . - 65 object of, beforo trial of prisoners...... 65 objections to information beforo plea...... 107 plea of guilty ------65 withdrawing plea 96 copy of information -...... 97 effect of plea of not guilty------97 refusing to plead ------97 standing mu to ------.--97 liow to try if persona muto of malico - - - - - 98 oath of jury ------08 insane prisoner ------98 oath of jury to try if prisoner insano - - - - 99 evidence of prisoner’s state of mind - - - - - 09 informing prisoner of his right to challcngo tho jury - GG impannclling a jury ------67 giving prisoner in chargo of tho jury - - - - 67 jury not charged in misdemeanors - - - - - 67 whero previous conviction charged - - - - - 101 jury not re-sworn ------101 several defendants ------101 effect of want of, or mistake in-...... 101 Ablest, all persons liablo to ------12 how mado ------12 By warrant - - -...... 12 form of ------13 persons charged with indictable offences - - - - 12 summons may issue in lieu of ------13 for offences committed on high seaa - - - - - 13 information must bo on oath ------13 may issue on Sunday -...... 13 execution of warrants ------13 backing warrants ------13 form of ------14 possession of, in misdemeanor ------15 By officers without warrant...... 15 magistrates ------15 sheriff and coroner ------15 constables -...... - - -15 persons resisting ------15 persons disturbing divino eervico ------15 By privato persons ------1G persons committing offences against 2nd part of Criminal Law and Practice Statute ------1G persons committing indictable and other offences at night, or armed at night with intent ------16 persons causing harm by neglect - - - - - 16 persons committing offences against 3rd part of Criminal Law and Practice Statute ------1G persons loitering at night and suspected - - - - 10 night walkers ------17 cheat 3 ------17 lunatics disposed to do mischief ------17 breaches of the peace ------17 must notify hi3 intention ------17 under Police Offences Statute 265, 1, 2 and 3 parts - - IS assisting in - - - -...... 19- 196 INDEX.

AbbesT—continued. fags privato person may direct a constahlo to - - - -19 distinction between officers and private persona - - - 21 Upon a hue and cry ------19 breaking doors ------19 persons found committing an offcnco - - - - 20 found offending ------20 mode of arrest ------20 constables asking prisoners questions - - - - - 20 seizing property of prisoner ------27 restoring ------28 of persons escaping to or from the colonics - - - 21 Ablest of Judgment, not for defects which might liavo been disposed of on demurrer or motion to quash information - - - 107 when to be moved ------170 grounds of, motion for ------170 what objections to informations cannot bo moved - 107, 170 for what technical errors, will not bo stayed or removed 107, 17G all defendants must be in court - - - - 107, 170 when personal appearance unnecessary ... - 177 respiting scntenco or execution - - • • • - 177 effect of...... 177 Auson, defined...... 2 General Sessions no jurisdiction to try - - - - Cl Assaults, common ------.---SO aggravated -••------35 Attainder, of another crime not plcadablo - - - • • - 111 Attempts, to commit crimes or misdemeanors • • • • -108 verdict of, on trial for felony------CO

Atjtkefois Acquit on Convict, plea of - - 111, 113 Attoeney Geneeal, informations by- - - - - « • • • 63 may discharge persons not to bo prosecuted • • - - S3 ex ojjicio informations by- -- - • - -89 for misdemeanors only - - • - - - 89 objects of ------• -89 not liablo to an action for - • - - - 90 defendant entitled to a copy - • • - 90 court may mako an order for trial of • - - 90 trial of, at bar ------90 right of reply...... 1G2 Backino Waeeants, (sec Arrest)------12 Bail, what...... -----45 in felonies and certain misdemeanors - - - - - 45 recognizance of ------46,47 in eases after commitment ------4G mode of taking ------46 where sureties cannot attend at gaol - - - - - 46 transmission of recognizance ------47 INDEX. 197

Bail—continued. . tacr warrant of dcliveranco - * • • • • • • 47 magistrates not to admit to bail in treason • • -47 should bail instead of committing persona accused of misdemeanors other than those in Stat. ‘2G7, see. 00...... 47 coroner may bail persona accused of manslaughter, or setting liro to property -*•••- 47 recognizance of - - • • - • • • - 47 notice of - 47 for offences under Tolico Offences Statute • # • . 43 surrender of accused upon - - • • * • 48 warrant of arrest...... * - -43 persons on, suspected of an intention to abscond may bo arrested ------43 principle upon which persons should bo admitted to bail - 48 who may ho...... 43 should bo householders - - - - • • --49 amount and number of ------40 to demand excessive, unlawful...... 43 may be examined upon oath ------43 . magistrates may order notico to ho given - • - - 43 insufficient ------• • - 43 personating...... - - . - 60 refusing...... --.-60 action for refusing not maintainable without notico - - 60 admitting accomplices to ------60 in murder - ..••-•*•-60 application to Supremo Court for - • • • • 60 how made - ••-•*-•--60 by habeas corpus - 61 notice of - 61 return of habeas - •- -- ••* 61 opposing application for - • * • • - -61 when accused in gaol at a distance - - * • • 61 by judge's summons ------* -61 number of bail -^-61 persons accused of murder when indicted not to bo bailed - 61 mode of taking ----***>•* 63 Bank Notes, bow described in an information * - * - - - 83 BANEEUrT, . examination of, admissible against him * • • -143 Bastauds, how described in an information...... 77 Bigamy, definition of...... 2 general sessions no jurisdiction to try...... 61 Biedb, ordinarily kept in confinement or for somo domestic purpose, stealing ------30 tilling, with intent to steal - * - • - - - 30 possession of ------30 maliciously killing, maiming, &c. - • - * - - 3G

Bkeakino open Doges 13,10, 21

Bueglaey, definition of 198 INDEX.

Capability, TAGS, of committing crimes - 4 general rule - - - 4 want of defect of will - 4 Infanta ------4 committing misdemeanors - 4 capital crimes - - - - 4 when 14 years of ago - 5 between 7 and 14 years of ago - 5 when under 14. years of ago . C principal in second degreo - . G Non compotes - - - - G idiots ------G what constitutes - - - G deaf and dumb - - - - 7 from sickness - - - - 7 lunatics .... - 7 persons drunk ------­- 7 by unskilfulness or contrivanco of others - - - 8 when drunkenness a circumstanco to bo taken into con- sideration ------8 rersons subject to tlio power of others - - - - 8 femo covert ------• 9 when under tho coercion of her husband - - - 9 when responsible a3 much as a femo solo - - - - 9 indictment against husband and wifo - - - - 9 Persons committing crimes through ignorance - - - 9 ignorance of law no excuso ------10 of fact, in some instances will excuse - - 10 Case Reserved, (see Crown case).

Cattle, jurisdiction of magistrates in cases of stolen - - - 38 using - ..-...---35 Character, witness as to...... 101 giving cvidenco of, on an information for subsequent felony 100 trial not postponed on account of absenco of witness to - 143 Circuit Courts, establishment of...... 64 jurisdiction of...... 64 Complaint, (see information)

Compromising, prosecutions ------II misdemeanors by leave of tho court - - - - - 11

Confessions effect of in general...... 14G cannot bo rejected on tho ground that a promise or threat has been held out...... 146 when purporting to bo taken on oath, evidence admissible to show it was not so taken...... 147 before magistrates...... 147 admitted without proof...... 147 when on oath inadmissible - -...... 147 admissible - -...... 147 on examination as a witness...... 147 of a bankrupt...... 143 INDEX. 199

CONFESSIONS—continued* paok on examination when bo makes no objection - - - - 143 when compulsory...... 143 answers and depositions in chancery...... M3 in affidavits...... 143 elicited by questions...... 143 Conspiracy, definition of...... 2, f>2 particulars of chargo in - - - - - . - 103 Constable, may without warrant arrest for treason, felony, or a breach of tho pcaco committed in his presence - - - 15 on a chargo of treason or felony, or upon his own reasonable suspicion, when those offences havo been committed ------­15 for a misdemeanor committed in his view - - - 15 should act with caution ------­15 when arresting under warrant for misdemeanor, must produco it ------­15 persons resisting may bo arrested - - - • - 15 may remove persons disturbing divine scrvico - - 15 may arrest persona committing offences against 2nd and 3rd part of Criminal Law and Practice Statuto 10 committing indictable or other offcncc3 at night, or armed at night with intent - - - 10 loitering at night and suspected - - - - 10 night walkers -----­17 cheats ------­ 17 lunatics disposed to do mischief - - - 17 for offences under the 1st, 2nd and 3rd parts of tho Polico Offences Statuto - - - - 18 any person found committing an offenco or found offending -----­20 mode of arrest ------20 execution of warrants 13 asking prisoners questions ------­20 may break open doors on mcro suspicion, though acting without a warrant ------­25 seizing property of accused ------­27 duties of, in executing search warrants - - - - 20 justified in using force to disperso an - 33 must tako accused before a magistrato - - - - 38 Contempt, commitment for at general sessions...... 132 by justices...... 182 every court of record lias power to commit for - - - 183 offender may bo apprehended...... 183 specific offence must bo stated...... 183 offender must have an opportunity of answering - - 183 cannot bo bailed...... 183 bye-stander...... -183 prohibited publication of proceedings not concluded a contempt...... 183 in addressing a jury...... 183 by a barrister...... 183 commitment must bo for a time certain - - - - 181 court of assize a superior court...... 184 warrant of commitment may bo general - - - - 181 newspaper comments may bo a...... 181 200 IOTEX.

CORONER, PAHa finding of, jury for purposes of prosecution * - - 44 depositions before...... 44 accused when committed by, should be taken beforo a magistrate...... *---44 warrant of, for exhuming dead body - * • - - 45 may bail person charged with manslaughter or setting firo to property...... ---47 depositions before, admissibility of as evidenco - • - 154 cases where admitted...... 154 where not admitted ----- 154 witness before, should bo cautioned whero suspicion attach­ ing to him ------155 proof of depositions before 15G duty in taking depositions ------15G

Course, (sea dead body) ...... --45 CoUNSEIr* ^ . accused upon a charge beforo justices of an indictablo offence no absolute right to the assistance of - - - 42 opinion of medical men on insanity cannot bo quoted to tho jury ------123 opening statement of...... 145 when to bo made 1 - - * - - - - -14G should only open tho general effect of any confession -. - 145 not allowed a second address, when additional evidenco discovered - - . -...... 145 in cases of murder...... --145 references to disturbances and notorious matters - - 145 not to quoto medical writers...... 14G when he may address the jury beforo prisoner has dono so - 101 reply of, for prosecution...... 1G2 Courts, may prohibit publication of proceedings not concluded - 183 no action maintainable for faithfully reporting proceedings 183 Crimes, capability of committing...... 4 Crown Cases, questions of law may bo reserved - - - - - 177 raised by demurrer cannot bo reserved - 178 but not of practice - - - - - 178 respiting execution of judgment ----- 177 when accused pleads guilty...... 178 caso to be stated...... 178 duty of judge...... 179 jurisdiction of judges...... 179 what order may be made on...... 179 argument by counsel...... 180 points therein can only bo argued...... 74 who to begin - - -...... 180 power to send back caso...... - 180 practice on...... 180 procedure after judgment...... 181 certificate - - -...... 181 form of...... 181 sufficient warrant for execution of judgment - - - 182

Crown Frosecutor, his duty as to filing informations...... 53 INDEX. 201

Cumulative Sentences, »■-*«»»: may bo imposed for subsequent felonies - - - - 170 Dead Dody, to disentor is a in is,Inn can or...... do to remove without license punishable...... 15 Supn me Court may order io be disintered - - - - 45 warrant of coroner for exhumation of - - - - 45 Deaf and Pnm, when to be considered an idiot - - 7 arraignment ------!)'.) Death, sentence of must bo passed in murder - - 171 court may record - - - - - 171 execution of sentence - - - - - 171 Defence, accused may make by counsel...... 158 Defendant, (see accused). DeMUEUER, objections to information may be taken by - - - - 107 what and when used...... 107 defects on face of ilie record may be taken by - - - 107 general and in abatement...... 108 form of general...... 108 joinder in...... 108 when to bo on parchment...... 108 may be allowed after plea ------108 judgment on not pleadable in bar...... 100 in felony when final...... 100 in misdemeanor when final - - - - 100 to plea in bar...... 100 to plea in abatement...... 100 cannot be reversed by court for consideration of crown cases...... 100 Depositions, to be taken on oath before granting a warrant to apprehend 13 in writing...... 50 of all persons who know anything of tho case - - - 50 to he taken in presence of the accused and magistrate - 50 accused should hear each witness and see his manner of answering...... 30 cross-examination of a witness should ho taken down and distinguished from the examination in chief - - 50 mode of taking...... 50, 53 in the words of the witness...... 30 reading over to witness...... 40 to accused...... 40 of accused's witnesses...... 41 importance of taking...... 41 effect of evidence...... 41 place where taken not an open court...... 43 transmission of...... 52 every deposition should be returned...... 02 not those taken after committal of accused and in his absence -...... --52 should have a caption...... 53 when accused entitled to a copy of...... 4 3 not until completed nor when charge dismissed • - 43 r 202 INDEX.

Depositions—continued. ... . r.AGn before a coroner admissibility of as evidence - - 154 ' cases where admitted...... - 154 where not admitted...... - 151 before magistrates how proved - - - - - 155 where there are erasures or interlineations in - - 158 before a coroner proof of...... - 15(1 coroner’s duty in taking...... - 150 accused entitled to inspect depositions on his trial - 158 cross-examination as to statements in - - - - 158 query, how effected by tho Statute of Evidence, 107 - 158 of accused’s witnesses dying beforo trial - - - 158 Deer, setting snares for ------3G Discharge, magistrates may discharge offenders on first conviction - 57 of persons accused not to be tried...... 53 of persons acquitted...... 1G7, 188 under Habeas Corjnts Act...... 188 of jury...... 138, 139, 141 Divine Service, removing persons disturbing 15 Doors, breaking open 13, 10, 24

Drunkenness, voluntary, no excuse for a crime...... 7 but an aggravation...... 8 when it may be taken into consideration - - - - 8

Dying Declarations, admitted in criminal prosecutions...... 14S when admissible in evidence...... 140 when death is subject of the charge...... 149 admissible either against or for accused - - - - 149 deceased must be conscious of approaching death - - 150 made under a sense of impending death - - - - 1 50 • interval between declaration and death - - - - 150 any hope of recovery excludes...... 150 where surgeon thought deceased was getting better - - 151 deceased need not express his apprehension - - - - 152 the question is for the court...... 152 as to what the court will inquire...... 152 declaration of one of two dying from tho same act - - 152 only evidence of facts...... 152 of a convict -...... 152 of accomplice -...... 152 parol admissible though a subsequent one in writing - - 153 when in writing...... 153 when on oath...... 153 evidence admissible to show deceased was dying - - - 153 as to the mode of eliciting a declaration - - - - 154 of children...... 154 Election, of several felonies, when prosecutor put to G3 Electric Telegraphs, injuries to...... 30 attempting to injure...... 36 INDEX. 203

Embezzlement, tact. definition of...... 2 three distinct acts may be charged - - - Cl, 71, 87 conviction of larceny on information for - - - - G7 by public servants...... 77, 87 Estreating Recognizances, . how effected...... ISO judgment on...... 187 Examination, (sec Accused—Depositions). Execution, of persons convicted of felonies punishable with death - - 171 Exhumation of Dead Bodies, (sec Dead Body). Extradition, offenders escaping to the United Kingdom - - - to the colonics...... proof of signature of person issuing original warrant offender when arrested to bo taken before a magistrate - offender may bo committed until ho can be sent hack to where the offence committed...... 22 information of committal to be given...... 22 certified copies of depositions evidence - - - - 22 form of certificate...... 22 authentilication of depositions...... 21 offenders apprehended to bo sent to tho plaeo where tho offenco committed...... 23 if not sent within two months after committal may apply to he discharged...... 23 French Convention...... 23 American...... --23 Denmark...... 23 Prussian...... 21

False Pretence, defined...... 1 no acquittal on tho ground that tho caso proved amounts to larceny ------GG information need not allcgo intent to defraud any particular person...... 87' Felony, defined...... 1 authority of officers At.., to arrest in cases of - - - 15 private person...... 1G only one offenco or transaction should ho charged in infor­ mation for...... 03. same may be charged in different ways .... G5 on trial for, verdict of attempt...... GG for some, verdict of unlawfully wounding - - - - GG tho taking of each article a separate...... 07 punishment of after previous conviction - - - -170 for, not punishable by any statute - - - 171 Feme Covert, > how far, and for what crimes excused by tho coercion of her husband...... 9 when responsible as much as a feme solo - - - - 9 Fences, destroy in; 30 stealing 30 204 INDEX.

Figures, PACK in an information...... 73 Fisn, taking...... 3G FOREIGNER, ignorance of laws no excuso...... 10 Forgery, defined - ...... description of written instruments in - - - S2 election of prosecutor...... C5 search warrants for forged postage stamps - - - 29 materials, &<■„ for - 29 sufficient in information for, to aver intent to defraud S7 Found offending, arresting persons - - - 20 Fruit, destroying - - - - 3G stealing - - - - 3G Garden, destroying fruit or vegetables in 3G stealing fruit or vegetables in 30 Gate, stealing - - - - 3G General Sessions, courts of - - - - - 54 jurisdiction - - - - 54 offences, excepted from jurisdiction of 54 Goods, how described in information - - 83 Greenhouse, destroying plants in - - 3G stealing plants in - - 3G IIareas Corpus, discharging prisoner under - 188 Handcuffing Prisoners, law as to - - - - 25 Hard Labour, . magistrates may award 37 IIares, killing at night - 3G IIiGn Seas, offences, committed on - 13. 54 High Treason, definition of 1 Homicide, defined Housebreaking, definition of . - - - 3 Idiots, definition of - - - - 7 Ignorance, of fact, will in some eases excuse 10 of law, no excuse for a crime 10 INDEX. 205

IXFAKTfl, rA'']; affirmation by, when under 7 years of ago - - - - 105 committing capital erimea ------1 misdemeanors ...... d murder - - - - • - - - 5 rape ------G IxroammoN, before magistrates ------15 on oath wlion lit ces--ary - - - - IS objections to, for di feet ill substance or - form not allow ed - - ... .'18 ill the ^supreme Court ------65 to be Jibd by Attorney or Solicitor-General or Crow n 3’rosc eutor - - - 55 what...... CO the caption...... GO \emio...... 58, 00 Who may bo joined as defendants in the rainc information - - CO in false pretences...... (51 in libel - - - -...... 01 , in perjury -...... 01 in joint acts not illegal...... Cl principals and accessories ------CL bow far persons may be separately found guilty - - CL separate receivers ------Oli neveral accessories and receivers...... Ci3 • burglary a ml larceny ------C‘2 larceny and receiving...... 0‘J conspiracy ------05 consequence of misjoinder...... C»5 JIoY7 many and what offences may bo joined in samo - - 05 in high treason...... 05 in felonies...... 05 in misdemeanors...... 05 in felonies only one offence or transaction should bo charged 05 election by prosecutor...... 05 rule as to...... 05 where there arc tlirco counts for larceny there may bo three for receiving...... 01 robbery and assault with intent...... 01 stealing and receiving...... Cl embezzlement and larceny as a bailee - - - - Cl three distinct acts of embezzlement may bo charged Cl, 71, 87 in arson...... 01 accessory ------C5 forgery...... G5 same felony may be charged in different ways - - - C5 in misdemeanors several offences may be charged in same information ------05 on trial for felony verdict of attempt...... CG facts proved on trial for misdemeanor amounting to felony not to entitle to acquittal...... CG for some felonies, verdict unlawfully vrounding - • - - CG on trial for poisoning, verdict of misdemeanor - - - CG rape* Ac., verdict of ass ault with intent - - CG child murder, verdict for concealing birth - CG robbery, verdict of assault with intent - - - CG steading cattle, verdict for misdemeanor - - CG embezzlement, verdict of larceny and vice vend 07 200 INDEX.

Information—contin uod. TACE n trial for false pretences no acquittal on ground that tho case proved amounts to larceny - - - C7 riotously demolition, verdict of misdemeanor - G7 carnal knowledge of girl between 10 and 12, no conviction if girl under 10 - - - - G7 the taking of each article a separate felony - - - - 67 not usual to try a prisoner convicted of stealing for another stealing at tho same time...... G7 General requisites...... CS certainty in, necessary...... G3 that accused may know what crime he is to answer - - CS to ensure accused subsequent protection - - - - G8 consequences of want of...... - CS surplusage ------­CO degree of certainty ------­GO charge must not bo too general...... GO it must be special ------­CO certainty to every intent ------­CO charge must be explicit...... 70 and not repugnant...... 70 must be positive and not by way of recital - - - - 71 or in the disjunctive ------­71 or argumentatively...... 71 duplicity...... 71 presumptions of law...... 72 facts taken notice of by tho court . - - - - 72 conclusions of law ------. 72 mere matters of evidenco - ...... 72 matters of defence...... 72 facts in defendant’s own knowledge...... 73 notice ------­73 request...... 73 evil intent...... 73 unnecessary matter...... 73 consequence of want of general requisites - - - - 74 unnecessary averment...... 71 duplicity ...... 74 name of accused...... 75 surname ------­75 if unknown...... 75 addition of accused...... 75 name and description of prosecutor and of person injured when known ---...... 75 when unknown - - -...... 75 Name of accused...... 75 Christian namo...... 75 surname...... 75 if unknown...... 75 addition...... 75 Name and description of prosecutor and third persons - 75 when known...... 75 when unknown...... 75 variance...... 76 addition...... 76 dignity...... 76 bastards...... 77 idem sonans...... 77 corporation...... 77 INDEX. 207

IxroEMAnox—continual. iai.t. partners, joint-owners anil companies - - - - 77 fri< ndly societies ------77 public seniro...... 77 po>t office ------78 where age e>M*ntial to con>titute the offtnee - - - - 72 figures in...... 78 interlineation...... 78 time and place ------78 hour...... 72 limited time...... 72 consequences of defective statement of time - - - - 7.) statement of statutes aud oliVnecs thereon - - - 7.) misreeital ------7'J certainty...... - 70 words in a statute should he used ------SO or those synonymous with or generic...... 80 exceptions ------SO averment of facts to bring the matter within the statutes - SO advisable to use the precise words of the statute - - - 31 exceptions in the same clause should be negatived - - 81 but not in a subsequent clause...... 81 statement of written instruments...... 82 in forgery...... 82 in engraving...... 82 must appear to bo as described - - - - 82 in perjur}' sufficient to set forth the substance of the offence 82 averring as to instruments generally...... 82 omission of certain words...... - - 82 variances may be amended ------82 statement of goods, chattels, animals, number and value - 82 description of goods ------82 animals ------82 moneys -...... 82 where cheque not cashed - - - - 82 in general ------82 number and quality - - - - - 82 valuo when it need not be stated - - - 82 ,, when it must ho stated - - - 82 if essential to constitute the offcnco - - - 85 statement of technical word3 ------85 murdered...... 85 ravished...... 85 feloniously...... 85- foroe and arms...... - 85 wickedly ------85 unlawfully...... HI) knowingly...... 8(> for murder - - -...... 80 manslaughter...... - - - 80 accessories...... 80 counts for .stealing and receiving may be joined - - - 80 in certain informations general averment of intent to injure or defraud .sufficient...... 87 three distinct acts of embezzlement may be charged 01, 71, 87 in perjury materiality of evidence need not be averred or proved .-,------87 conclusion of an information for an offence against a statute 87 certain omi.ssions not fatal ------87 copy of information in felonies...... 87, 07 208 INDEX.

Infoidiatiox—continued. rA(;K copy of information in misdemeanor...... 87 after acquittal in felonies - - - 87 names, etc., of witnesses on information - • - - 88 prisoner not entitled to list of ------88 rule as to calling witnesses on back of information in felony ------88 practice ------88 witnesses examined before coroner not called - - - 88 not examined before magistrate or coroner - - 88 ex ojjicio by Attorney-General when in office - - - - 89 by Solicitor-General in vacancy - - - - 80 when it lies ------80 for misdemeanors only ----- 80 for offences against government or crown below felony ------80 Attorney-General not liable to an action - - 00 defendant entitled to a copy of - * - - 90 court may make an order for trial of - - - 1)0 trial at bar of...... - - 1)0 by leave of the Supreme Court lies for crimes not punish­ able with death ------1)0 Prothonotary proper officer to sign - - - - 00 process on ------01 when an accused has not appeared or pleaded to - - - 01 in custody of another court - - - 01 at large in misdemeanors, a venire - - 01 in felony a capias - - - - - 01 by judges warrant in misdemeanors, form of - - - - 01 proceedings when accused arrested - 02 by bench warrant...... - - - - 02 when granted - - - - • - - - - 02 form of - - - -...... - 02 by warrant of a magistrate ------02 certificate of information Tiled ------03 form of warrant ------01 accused when arrested to he taken before magistrate - - 01 form of warrant of commitment - - - - - 01 objections to------107, 109 court may amend defects in ------107 fresh, after prior one quashed ------110 Ixjur.E, averment of intent to, sufficient ----- 87

Insanity, evidence of, may he given under pica of not guilty - - 110 effect of ------110 what constitutes ------110 Tracy,

INSANITY—con 11 ;; Ufd. i-v; u opinion?} of medical men...... 123 when accused acquitted on ground of - - - 123, 107 on arraignment or trial of, fonriil to be insano 123 prisoner becoming insane ------123 grand jury, no authority to ignore a bill on ground of - 123

Intent to Durnvrn, Low stated and prove J in fa loo pretences, - - - - 37 in for.very an! uttering - * - 37 Intehlineation, in information - 73 in dying declarations - 133 lNTEr.rr.Exrn, (see or’//;) - - ior> Judgment, compromise of...... 11 magi .drabs may aw rd b n. 1 1 d.mr...... 37 may tlir^t-li;ir;n* <■ ■■ ,7» mb r on 3rd. eomietion - - * • 37 wlii|n i11:c f<>r you! bs - - - - - • • - 37 ashing aceu. -ed v.liy it should not be prononnccil - - 33 on plea...... 113, 111 on demurrer ------103 rllocutus...... ’ - - - 103 what...... 139 prcr.cnro of accused...... 130 when dispensed with ------109 when not...... 170 compelling attendance of accused to receive * - - 170 cumulative punishment - - * * - - 170 on each count ...... 170 on felonies not punishable with death...... 170 not provided for - - * - - 171 may record judgment of death...... 171 of death, must be parsed in murder...... 171 proclamation before sentence in capital caves - * - 33 execution to be carried into effect within ga<»] walls - - 171 sheriffs authority fen* execution...... 171 warrantof execution ------*171 calendar made out -...... 171 should be entered on record ------172 form of- -...... -172 form of in case of acquittal...... 172 safer to puss sentence on each count - * - - - 173 altering and amending - - - - - * - 173 record cannot l»o altered ------173 arrest of...... “ * -170 respiting sentence or execution...... 177 JuEor.s, ^ calling over panel of...... 03 oath or affirmation of...... ,r,(i of, to try if prisoner is insane...... 99 informing accused of liia right to challenge - - - - 0(» impanncliing...... 07 mode of challenge of...... ,r>7 giving accused in charge of...... *97 not charged in misdemeanors - - - “ * - *97 when agreed ------* ■ - q>7 verdid of - * - - - * - - - - .t7 inquiry by, e? grevierw wend' tw o - - - - - 3S all i. ..use, an inlarmalien to b. timd by common - - - *»3 <} 210 INDEX.

Junonfl—continued. rACE court may order special -...... 121 qualification and disqualification of - - - - 124 persons exempted from serving on...... 124 jury districts - -...... - - - 121 „ lists...... 125 ,, precepts...... 125 selection of jurors to bo summoned...... 125 panel of ------125 copy to be obtained by any person - - - - 125 delivery of precept and panel to associate - - - - 125 to bo once sworn...... 125 not to bo resworn unless crown or accused so require - - 126 may malic affirmation ------126 mode of ballotting for ------126 talcs...... 126 attendance and liability of...... 127 Do mcdicctatc lingua) . - 127 need not be natives of the same country a3 accused - - 127 alien woman marrying a British subject not entitled to - 127 application for jury...... 127 suggestion on record that accused is an alien ... 128 challenging array by alien...... - 12S when alien jointly indicted with a British subject - - 128 crown to show cause of challenge to alien juror - - - 123 passport not evidence of being alien...... 128 Calling and challenging jurors...... 120 Two kinds of challenge To the array, principal challenge to the array...... 320 causes - - - - ...... 120 for favour...... 120 must be in writing...... 100 ' before jury sworn...... 3 20 form of...... 130 ground of objection should be specially stated - - 131 and proved...... 131 opposite party may plead or demur - - - - 131 form of, and joinder ------131 judgment entered on record...... 331 if challenge pleaded to ------132 two triers appointed...... 132 generally jurymen...... - 132 proceedings thereon...... 132 Challenges to the polls, peremptory...... 132 ' ' not allowed to the Queen...... 133 number allowed...... 133 when to be made ------133 not allowed in collateral issues...... 133 where several tried together...... 133 by accused in person ------133 after juror sworn...... 133 Principal challenge, -...... - - 133 peer sworn...... 133 alienage...... 133 infancy - - - * - - - - - 133 ago " - -...... 133 estate - - - - ’ * - - - - 133 kindred...... 133 INDEX. 211

JunoES—continued. i*a«si partiality...... 133 prejudice...... 133 malice ------133 prior verdict by tlm juror - - • - • * ICC attainder or conviction...... 103 for favour...... 133 no challenge until :i full jury appear...... 133 made l>v parol ------]35 before juror takes his scat - - - * - - « 133 crown not bound to show cause of challenge until panel exhausted...... 135 course pursued when pane l exhausted - • - 135,137 court may cxcu-e a juryman ------LOG triers...... 13d oath of...... - - ICO may bo examined when cause shown - - - - - 137 oath on roin: (lira...... 137 view or inspection by • - - - * - - 137 oatli to shower...... 137 to bailiff...... 137 deliberation of...... 137 oath to officer - - *...... 133 eating and drink in a; b}T ------* - 133 must bo kept together...... 130 when one, sworn in wrong name...... 137 when redated to accused ------137 verdict of, in treason or felony, must bo delivered in open court - - - - -...... 133 by foreman ------1 <’4 on trial for certain offences may return verdicts for others - 107 L-incuxY, defined...... 3 summary jurisdiction of magi-drates in .... 33 by persons under the ape of sixteen ----- 33 of two pounds or less...... 33 exercise of summary jurisdiction discretionary - - - 31 punishment ------31 option as to trial hy jury...... 34 mode of procedure - - - - - • 31 when the accused pleads guilty - - - Cl if accused objects ------35 where three counts for larceny there may bo threo for receiving...... - - -ft on trial for, verdict of embezzlement - - - - 07 of post letters ------78 description of goods in information for .... 83 money ------33 counts for, may be joined with counts for receiving - - 80 trial in ease of, for two things stolen ut same time - - 111 Liiskl, defined - - - - 3 on the government - 8 J plea to an information for - in Lunatic, definition of - - - - ...... 7 when entitled to indulgence as to his .acts - - - - 7 arrest of danp. rolls ------17 dhposil of uiicmhrs aeguitti d on ground of insanity - 133 on .Oiap.mm lit found to be ill. .tile 03, ltf\ 212 INDEX.

Magistrates, i'aci: should take information on oath before granting a warrant - 13 accused to bo taken beforo...... 14, duties of, in cases of riots and unlawful assemblies - - summary jurisdiction in cases of larceny - - - - where persons under ape 10 - - - - in larceny of £2 or less...... - punishment ------­ option of accused of trial by jury ------modo of procedure in summary jurisdiction - - - to rcduco charge into writing -......

if accused objects ------8 8 8 8 8 8 8 8 8 8

mode of procedure when ago of accused exceeds 1G years, and property exceeds £2 ------restitution of property by - - - - - • - summary jurisdiction in other cases - - - - - assaults on children under 14 - - - - taking, using, or working cattlo or goat - - persons in possession venison - - - - setting snares or engines for deer, &c. - - killing hares and rabbits by night - - - - stealing dogs ------­

possession of stolen dogs or skins thereof - - 8 8 8 8 8 8 8 8 8 8

stealing birds or beasts kept in confinement and

not subject of larceny - - - - - 8 possession of stolen birds, or plumage, or dogs,

or skin3 thereof, or any such animal, or part thereof ...... killing house doves or pigeons - - - taking fish -----­ stealing trees -----­ stealing, dc., dead wood - - - stealing fences -----­ possession of stolen wood - - - stealing fruit in any garden - - - stealing vegetables, roots, plants, &c. - possession wrecked property - - - offering wrecked property for salo - - damaging trees to value one shilling - - destroying fruit or vegetables in any garden destroying, de., plants elsewhere - - destroying fences - - - . injuries to telegraphs ----­

attempting to injure telegraphs - - 88888888888888888 killing, maiming or wounding any dog, bird beast or other animal (not being cattle) - tendering defaced coin - - - -

possession of five pieces of counterfeit foreign coin 8 8 8

receivers when offence punisliablo on summary conviction ------­ abettors do. -...... whipping youths -...... effect of summery conviction - - - - may award hard iabonr...... may discharge offenders on fiist conviction - may commit, if penrdiy not pe.id - - - -

jurisdiction in eases of stolen cattle...... 8 3 3 3 3 3 2 5 8

course to he pursued if accused docs not appear when summoned ------­

cannot without personal attendance of accused go into the ease 8 8 INDEX. 213

Magi stkate s—cm: t i n u ci h i*ag :s no objection to informations cr complaint - - - - 33 to examine vitmv.a s o.r. oath ------31) mill all persons who know anythim: of tlio cr.ro - - - 31) and t.;l:o depositions in writiny in the presence of the accusal...... - CO chonhl invite r.cxaircal to crorr-ex:;inino v.itncrrc.i - - - 3i) ffkould tala; down answers, which rkouhl bo distiimuishul from the exsmination in chief - - - h) mode of talnnp dope: iiioiis...... 31), 53 r.hould read over depositions to witness - * •10 to the accused - ■ dO thouhl caution the accused - - - - dO to take evidence of prisoner's witnesses - ■ dl and bind them over -----­ dl effect of evidence of prisoner's witnesses - - dl place where depositions taken not an open court dll remanding accured -----­ dll when accured apsin brouplit up, former depositionsto bo read o\cr to him...... - 42 dhcharpe or committal of - - - - - dll Wounds on which jiadice should aet in committing dll wit no: aw to be bound our...... d3 di positions b( fore, how ]>roved - - - - ir>r, uppointim lit of epeeial constables by - - - 30 their duties in cases of riots - - - - 33 Haselauc mi:n, definition of...... -3 information for - -...... HG Maeeied Won an, how far and in what cures excused by coercion of husband 0 Miseeheaxoe, arrest by officers in cares of...... 15 attempts to commit...... OG, 1G8 compromise by prosecutor by leave of the court after conviction ------11 defined...... 1 jury not churn d in c;u es of...... - 57 muebdralis i Imiild bail all y< reon-; necu: ed with other,than thoso mentioned in i !atu‘e L’07, a c. 1'0 - - - - 47 on trial for, if Lad.; proved : m< md to h Lay. no acquittal - GG Federal may ho char <. d in ;ame info] motion - - - - 05 veidict of oil trial for cattle ; !. -dim;...... OG for poh ordnp ------OG for iioJous danehtion - - - - 07 Llurmru, defined...... j; on tried for child murder, verdict of coma alia:; birth • on infurmatimiG for...... H0 r\ut. neuef d;,dli mast ha pw,wvw.r. d - - - - 171 body to 1 Lurk d hi ; . ! -----­ 171 execution to bo e.wrk d b:h> iel within tim pud walls 171 auihmky to ..hcritf hr .... 171 of accused ...... 75 75 surname ------when unltiiown...... 214 INDEX.

Kum—continued. l’AG i' no addition necessary 75 of person injured ■ 75 when unknown 75 variance 76 New Trial, < in felonies 173 when ease reserved - - - - 173 in misdemeanors...... 174 inferior court granting - - - 174 grounds for granting - _ - - ■ 174 in general, not after acquittal - - 174 against evidence - - - - ■ 174 misdirection...... 174 court will sometimes suspend judgment 175 presence of accused in court - - 175 if in custody or hnahlo only - - • 175 application for - - - - - 175 after motion in arrest of judgment ■ 175 Night Walkers, apprehension of...... - 17 Non Cohpos Mentis, . four kinds of persons who may he said to be G an idiot -...... G one made so by sickness - - • 7 a lunatic...... 7 persons drunk - - - - 7 Not Guilty, effect of plea of ------97, 110 evidence of insanity under plea of - 11G verdict of...... 1G7 Nolle Prosequi, # ^ does not operato as an acquittal...... ICG entry of--...... 100 form of entry of - - . - - - . - - 10G when it cannot bo entered 10G Nursery Ground, . stealing plants from - . - - . - GG Oatii, when information or complaint to be upon - - 30 of special constables ------30 of witnesses before magistrates - - - - - 39 of jurors, to try if prisoner insane - - - 99 - 103 to Mahometans - - - - - 103 to Jews...... - 103 to a Gentoo ----­ - 104 the Scotch -----­ - 101 to a Scotch Covenanter - - - - 104 to a Chinese ----­ - 104 persons unwilling to he sworn may aflirm - - 105 aboriginal natives and infants under seven years - 105 to deaf and dumb witnesses and foreigners - - 105 to interpreters ------­ - 105 of triers -...... - 130 on voire dire ------­ - 137 to the shower to a jury - - - - - 137 to the bailiff...... - 137 of oiliccr to keep a jury - - - - - 133 INDEX. 215

Objections, va<;i. not allowed to any information or complaint, warrant or summons ------38 Oitences, liow many and what may bo joined...... (‘>3 Open Coukt, place where depositions taken not...... -12 Orchard, (s

Prisoners, (see aecnsed).

Private Persons, arrest by...... 1G authority of, to arrest in eases of felony - - - - 24 Proceedings, prohibiting publication of...... 183 no action maintainable for faithfully reporting - - - 183 Process, on an information ------01 when accused lias not appeared or pleaded - - - 01 in custody of another court, - - - - 01 at largo in misdemeanors - - - - 01 by judge’s warrant...... - - 01 form of...... - 01 by bench warrant - - - - - * - - - 02 when granted ------02 form of ------02 INDEX. 217

Process—contimtrd. taok by warrant of a magistrate...... - 03 certificate of information tiled - - - - * * 93 form of warrant ------91 accused when arrested, to be taken before n magistrate - - 91 after verdict and before- judgment ----- 170 Proclamation, on opening of the court...... 55 in capital cases...... 58 PnorriiTY, seizing, of persons arrested...... 27 restoring ------28 stolen, search warrant for...... 28 Prosecution, how instituted...... H no person ought to have a beneficial interest in - - - 11 police generally institute ------11 does not abate by death of sovereign or prosecutor - - 11 compromising misdemeanors by leave of the court - - 11 Prosecutor, any person may prefer an accusation - * - - - 11 death of ------11 Publication, prohibiting, of proceedings ------183 Punishment, when persons excused from...... 4 of felonies not punishable with death...... 170 for which no punishment is specially provided 170 cumulative...... 170 QuAsniNO Information, when information may be quashed - - 107, 109 fresh information after ------110 Questions, ■ to accused...... 20, 40, 148 to persons making dying declarations - - - 154 Kate, definition of the offence ------3 persons capable of committing - _ - . . g on trial for, verdict of assault with intent - - CG, lGg Bebuttino Case, where new matter proved by the accused - - - * 103 discretion of court in admitting evidence on a - - - 1G3 Deceivers, in cases punishable summarily...... 30 separate, may be included in the same information - - 02 on charge oi joint receipt, there may be a conviction, for . separate...... 02, 1G1 counts for receiving and stealing may be joined - . - 04, 80 informations may contain as many counts for receiving as for stealing - - - -...... 04 Becognizance, of prisoner's witnesses...... 41 of prosecutor and witnesses...... 13 notice to - - - - ■...... 43 amount of - -...... 43 witnesses refusing to enter into - - - - - 43 transmitting- - ...... 47,52 estreating and discharging...... 186 judgment on - - -...... 187 B 218 INDEX.

Becognizance—Continued. page how vacated...... 187 cannot be discharged unless performed...... 187 may be respited...... 187 when discharged...... 187 Remanded, when accused may be...... 42 again brought up, former depositions to he read over to him...... 42 BurLY, regulations of judges involving right to, where accused cross-examines on depositions...... 158 right of, by attorney-generals...... 1G2 by counsel for prosecution...... 1G2 is obtained by prosecutor, if witnesses called for accused, though only to character, or if deposition of witness has been read...... 162 evidence in...... 1G3 Bestitution, by magistrates of stolen property - - - - 35, 184 of property received with guilty knowledge - - - 184 obtained by falso pretences...... 184 except negotiable securities...... 185 in prosecution of bankers, factors, &c. - - - 185 on acquittal of accused...... 185 proceeds of stolen property...... 185 where accused pleads guilty...... 185 no authority to make an order, except as to what has been stolen and its proceeds ------­185 order of, cumulative...... 18G where there has been a sale in market overt - - - - 18G the court before which the accused is tried is the proper one to apply to, for...... 18G where pawnbroker advances money on stolen goods - - 18G Biot, definition of...... 3 appointment of special constables in case of - - - 30 powers and duties of magistrates in cases of - - - 33 Bobbery, definition of...... 3 on charge of, conviction of an assault with intent - - G4 verdict on charge of...... 168 Searching, prisoners...... 25 Search Warrants, for stolen property...... 28 property, in respect of which an offence punishable under Statute 233 has been committed - - - 28 gunpowder - -...... 29 materials, &c., for forgery...... 29 forged stamps...... 29 manner of executing...... 29 Seizing, property of persons arrested ------27 restoring...... 28 Sentence, (see judgment). Summary Jurisdiction of Magistrates, (see magistrates) - - 33, 36 Summons, for what offences it may issue...... 13 if issued in first instance no information on oath necessary 13 INDEX. 2U)

Robbery—Continued. tagi: service of...... 13 if accused does not appear, warrant may issue - - - 3B Sodomy, defined...... 3 Special Constables, mode of appointment...... 30 form of oath taken by ------30 precept for appointment of ------30 one magistrate appointing ------31 fine for refusing to serve...... 31 non-residents, may be appointed...... 31 what to do on arresting...... 31 must give up staff...... 31 period of service...... 31 rights and duties...... 33 allowance to...... 33 duties of magistrates in cases of riots and unlawful assemblies...... 33 Statement of Accused, should be taken down in writing and read over - - 30, 40 not bo on oath...... 40 when elicited by questions of magistrates - - - - 10 may be used against him...... - - 10 accused not entitled to copy of...... 43 when in proper form and returned admissible without proof 156 Subornation of Perjury. defined...... 3 Sunday, arrest on, or warrant issuing on - - - - 13 Supreme Court, jurisdiction - - - - ... - 53 high seas ...... - 51 gaol delivery ------51 circuit courts...... - 54 their jurisdiction...... - 54 opening of...... - 55 proclamation at...... - 55 arraigning prisoners -----­ - 55 Transmission of depositions and recognizances - - - 47, 52 Telegraphs, injuries to...... - 36 attempting to injure...... - 36 Time, in informations, when material, must be alleged - 73 Treason, defined...... - 1 statutes relating to...... - 1 what offences punishable as - - - - - 1 magistrates not to hail in ------47 Trees, stealing...... 30 damaging...... 36 Trial, arraignment at - -...... 55, 05 asking accused if guilty or not and his plea - - 55f 1)7 challenging jurors on...... 50,57 informing accused of his right to challenge jury - - 50 calling and swearing the jury - - - - 50, OB, 101 220 INDEX.

Trial—Continued. . TACK impannclling jury...... - 67 accused must challenge jury himself - - - - 57 reading information...... - 97 effect of plea not guilty - - * - -97, 110 quashing information before plea - - - 107, 109 postponing...... - - 141 opening statement of counsel - - - - - 115 duty of in making ------115 adjournment of - - - * _ - - - - 15G for production of evidence - - - 15G when juror sworn in wrong name - 157 illness of prisoner - - - - 157 absence of prosecutor and witness - 157 dcfenco of accused ------158 accused entitled to inspect depositions on - - - 158 depositions of accused’s witnesses dying before - - 15S additional evidence at...... - 158 separate ...... - - 158 counsel allowed to accused on - - - - - 158 regulations of practice as to using depositions on - - 158 qualified by statute of evidence - - - - - 153 order of defence -----­ - - 159 how determined -----­ - 159 accused may address jury on - - - - 159,1G0 reply and rebutting caso...... - 1G2 Trustees, frauds by - - - - 77 Unknown Person, when accused is - - - ■ 75 owner, - - - - 7G Unlaweul Assemblies, duties of magistrates in casc3 of 33 Unlawfully, these words in an information preclude all legal excuse 86 Value, need not be alleged, unless it be material 84 when it must be stated - - - - 85 Vegetable, stealing in conservatory, Ac...... 36 elsewhere...... SG Venue, - what sufficient...... 58 at common law must be laid in the county where offence committed...... - - 53 no information insufficient for want of proper or perfect - 176 not necessary to state in body of information - - - 58 jurisdiction named in margin of information to be venue for all facts stated in the body thereof - - - 58 when local description required such local description to be given in body of information...... 58 provisions in Statute 233 58 may be changed...... 59 application for, how made...... 59 affidavit in support...... 59 origin of changing - - -...... 59 for securing a fair and impartial trial - - - - 59 in conspiracy...... - - - GO when difficult points of law arise...... CO as to right of crown to lay and retain...... CO INDEX. 221 Yoire dike, examination of juror on ------13G oath on - - - -...... 137 Vekdict, of jury...... 57 recording...... 57 of larceny on trial for embezzlement and vice versa - - G7 in treason or felony must be delivered in open court - - 1G3 on Sunday ------10 i is delivered by foreman of jury...... 1G1 general verdict...... 101 special - - - - -...... 101 jury may find one guilty and acquit others - - - 101 whero accused jointly charged with receiving - - - 101 in riot 101­ in conspiracy ------1G1 in wounding ------101 in robbery...... 105 omissions in ...... - - - - 105 jury not to draw legal conclusions...... 105 special, as to matters of fact, not amendable - - - 105 imperfect...... 100 court may enter judgment on facts found - - - - 100 judge not bound to record first ,...... 100 rectifying ------100 acquittal and discharge of accused...... 107 oil ground of insanity ----- 123, 107 on trial for certain oiTences, verdict for others may ho returned...... 00, 107 list of such offences...... 107 entry of verdict...... 108 form of...... 108 allocutus...... - 109 discharge of jury when they do not agree to - - - 138 process after, and before judgment...... 170 Warrant, for what offence it may issue...... 13 when it may issue in first instance...... 13 if so to issue, information or complaint must be in writing and on oath...... 13 may he issued on Sunday...... 13 backing -...... 13 form of - - -...... 14 possession of, in misdemeanors...... 15 for seizure of stolen cattle...... 38 of coroner for exhuming dead bodies...... 45 of deliverance of a prisoner bailed...... 47 for discharge of accused - - . - - - - 53 judges - - - ...... 01 bench...... 03 magistrates, to apprehend person indicted - - - - 04 of commitment thereon...... 04 for execution of sentence of death...... 171 Wiiiiting, for youths under 10 years of ago...... 37 Witness, cannot refuse to attend until his expenses paid - - 38 magistrate to examine...... * - - 30 oath of...... 30 examination of, in presence of accused...... 30 222 INDEX.

Witness—Continued. tagf, deposition to be read over to...... - 40 to sign examination...... - - 40 . accused’s - - -...... -40 to be bound over to give evidence...... 43 refusing to enter into recognizance...... 43 calling, before trial of accused ------56 oath of...... -57 rule as to calling those on back of information - - - 88 those not examined before magistrate or coroner ------88 accused not entitled to list of ------88 deaf and dumb, oath of...... 105 affirmation of...... 105 aboriginal native - -...... 105 infants under 7 years ------105 interpreter for foreign - - - . - - -105 oath before triers ------136 before a coroner, should bo cautioned vlien suspicion attaches to him...... 155 deposition of accused’s, dying before trial - - - - 155 ADDENDA ET CORRIGENDA.

Pago 8 lino 11 from bottom, for “A,” road “ it.” ,, 15 ,, 22 from top, for “80,” road “ 080.” „ ‘20 ,, 4 from top, for “ Prisoner,” read “ Person.” ,, 23,21 The Statutes G and 7 Vie., e. 75 and 70; the 8 and 9 Vie., e. 120 ; the 25 and 20 Vie., e. 70; and the 29 and 30 Vic., c. 121, have been repealed by the Statute 33 and 81 Vic., c. 52. ,, 30 after line 19 insert “ Sec. 97, Stealing Trees in Parks, Ac.” ,, 38 line 3 from bottom, add “ Statute 207.” ,, 42 ,, 10 from top, add “ Statute 207.” ,, 42 ,, 1G from top, for “Formulist,” read “ Formalist.” ,, 4G ,, 15 from bottom, after “the object of,” erase “this,” and add after Section, “ 91.” ,, 53 ,, 25 from top, for “ 223,” read “ 233.” ,, 54 By the “ Insolvency Statute, 1871,” Sec. 159, so much of the 25th Sec. of “ the. Justices of the. Peace Statute, 1805,” No. 207, as excludes the juris, diction of General Sessions over olTences against the provisions of the laws relating to in sol­ vents has been repealed, and the former Statute gives such Courts jurisdiction over those olTences. Page CO line 2 from top, for “ 2,” read “3.” 04 „ 22 from top, for “1 Bat,” read “ But.” 05 ,, 15 from bottom, erase “ sec. 0.’ 06 ,, 28 from top, for ‘“ 322,” read “ 233.” ,, „ 30 from top, for ‘“ 322,” read “ 233.” ,, „ 34 from top, for “' 3°2 ” read “ 233.”

83 „ 13 from top, for ‘ GO read “ 488.” 9G ,, 15 from bottom, for “ C,” read “ S.” 99 „ 8 from bottom, of marginal notes for “ Prisonce,” read “ Prisoners.” 110 „ 24 from top, for “ C.N.P.,” read “N.P.C.” 108 ,, 24 from top of second column, for “ 10,” read “ 9.” STELTiOritNE

STILLWELL AND KMi,11T, I’KIN’PKKS,

COLLINS STREET EAST.