LAW. CRIHIN.U.. 



LAW, CRIMINAL. 





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. , 



prisoner, the judgment is that ho be 



rnsrsco. or any attempt to Injun. her person (89 ft 40 Geo. III. 

 e.;Vft< .Mrf won* th.lbrg.t7 of the gr.Bt.na other 



roval Mb (7*8 Wm. III. c. 3. s. IS), the accuwd U to have a true 

 w of the Indictment ddtand to him too dan at the l,-t I . 

 /rrakned and, l <* *>* <'. list of the witnesses to be pro- 

 <hWsinst him, and if indicted in any other court than the Queen'. 

 Bsnoh. aust .f the petit jury ; but if indicted in the Queen a Bench, 

 UM list of the petit jury may be delivered to him at any time after 

 his arraignment. so M it be delivered ton days before the day of trial 

 (7*8 Wm. 111. c. 8. a. 1 ; 7 Anne. c. 21, a. 11 ; 6 Geo. IV. c. 60. 

 a. Jl ). If the accuaed plead, howeer, without churning or having had 

 delivered to him auch copy or lists, he will be considered to have 

 waived any objection on account of such non-delivery. If the accused, 

 * hrUur in caw of felony or misdemeanor, be not in custody nor on 

 bail when the indictment U found, or, being on bail, make default, hia 

 appearance may be compelled by process or by a bench warrant ; and 

 he nay be proaeeutod to outlawry. [OUTLAWRY.] No fee ia to be 

 demanded or taken from penona charged with or indicted for felony 

 or misdemeanor, or ai an accessory to felony, for their appearance to 

 the indictment or information, or for allowing them to plead, or for 

 Pf^n^Kng their appearance or plcm, or for discharging any recognisance 

 taken from Mich persons, or any sureties for them (8 ft 9 Viet c. 114, 



In eaaea of treMon, the accuaed is entitled, on application to the 

 court, to have two counsel assigned him, who may have free access to 

 him at all eeaaonable hour* (7 ft 8 Wm. III. c. 3, s. 1). The court 

 Buy alao, if it think fit, upon the accused's making affidavit that he U 

 not worth 61. beyond hia wearing apparel, allow him to defend in 

 formd paupcrii ; in which case neither the officer* of the court, nor 

 lhoe who are assigned to conduct his cause, may take any fees. 



The prisoner, upon being arraigned or charged with the indictment, 

 in oases of felony or misdemeanor, may either confess the charge to be 

 true, in which event such confession is to be recorded and judgment 

 awarded according to law, or may plead to the indictment or demur. 

 By pitting, he puts in issue the facto of the charge ; by demurring, he 

 admits the facto, but contends that they amount to no offence indict- 

 able by law ; as, if a man were iudicted for feloniously stealing game, 

 without alleging that it was tame or confined; in which case, upon 

 demurrer, be must be discharged. After demurrer, in cases of felony 

 or misdemeanor, decided against the prisoner, he is not at liberty as a 

 matter of right to plead over " Nut < iuilty " (Reg. r. Faderman, 1 Den. 

 c. c. 569), but the court may permit him to do so. In either cane, if 

 the demurrer be decided for the pris 

 dismissed and discharged. 



The pleas which may be pleaded by a prisoner are either to the 

 jurisdiction of the court, and these must be pleaded before any other 

 plea, or in abatement (now almost unknown), or in bar ; and pleas in 

 bar are either special pleas or the general issue. Special pleas may 

 allege a previous acquittal, conviction, or attainder of the same offence, or 

 a pardon [|'ARDO.\ ] ; and, in the case of prosecutions for the non-repair 

 of highways or bridges, the liability, if denied by the defendant, of the 

 party who is liable for the repair of the same. 



The general issue, or * Not Guilty," which is the plea employed in 

 the infinitely greatest number of cases, puto in issue the whole question 

 of the accused's guilt or innocence of the charge in all its bearings ; 

 and not only casts on the prosecutor the burden of making out every 

 part of bis charge, but entitles the accused to give in evidence every 

 possible ground of justification or excuse which can form an answer to 

 the indictment. 



No advantage can now be obtained by a plsa in abatement, as by 

 UM 7 <3eo. IV. c. 04, a. 19, the court may, upon such plea, immediately 

 cause the indictment to be amended, and call upon the party to plead 

 to it so amended, as if no such plea had been pleaded. In caws of 

 felony, if a special plea be found for the crown, the prisoner may plead 

 over" Not Cluilty ;" but in r.w* of misdemeanor, the judgment for 

 UM crown is final. In either case, if it be found for the prisoner, be is 

 to be dismissed. 



II. instead of pleading, the prisoner stand mute of malice, or will 



not answer directly to the indictment, the court may order a plea of 



i iuilty " to be entered on his behalf, and such pica will have the 



SB** eflVct as if it bad been actually pleaded by him (7 ft 8 Geo. IV. 



c. 2, a. 2). But if a doubt arise whether he be mute of malice or 



dumb, a jury U to be impanneled to try the fact, and, if the Utter be 



found, the court will use means to make the prisoner understand what 



is required of him; >>ut if thin lie impossible, will direct a ]! i f 



be entered, and the trial to proceed. Should ho 



upon arraignment be found to be insane by a jury im]ianneled for the 



purpose under the provisions of the 39 A I.e. 94, so that he 



cannot bs tried, UM court may order soch finding to be recorded and 



UM piisuuei to be ki-pt in strict custody until her Majesty's pleasure 



. 



When, however, the plea of "Not Ctiilty" has been pleaded, the 

 trial is to be had before some court having jurisdiction, by twelve 

 Jurors, generally of the county where the fact is alleged in the indict- 

 meat to have been committed, called a petit jury, by way of dif 

 from UM grand jury. The ordinary court* having jurisdiction to try 

 mdicUbU offences are UM Queen's Bench, the Central Criminal Court, 

 Courts of Ojrtr and Terminer, Gaol Delivery, and Quarter-Sessions 



Borough Courts and the Superior Criminal Courts of the Counties 

 Palatine ; but Courts of Quarter-Sessions and Borough Courts have no 

 jurisdiction with respect to treason or any felony punishable with death 

 or transportation for life, or several otli.T offences (5 ft 8 Viet c. 88, 

 s. 1 ). The trial is generally to be had in the county or diet : 

 which the offence was committed. 



Upon the trial being called on, the jurors are to be sworn as they 

 appear, to the number of twelve, unless they be challenged. As to 

 challenges, whether on the part of the crown or the prisoner, and as to 

 petit juries generally, see JURY. It may here be observ. 

 that the right of peremptory challenge, that is, of challenging at mere 

 pleasure, without showing any cause, which exists in cases of treason 

 and felony, is one of the peculiarities before alluded to, which dis- 

 tinguish those classes of crime from misdemeanors ; and that the power 

 to challenge peremptorily to the number of thirty-five jurors in cases 

 of treason, and to the number of twenty only in cases of felony, is a 

 distinguishing feature between treasons and felonies. When t 

 jurors are procured free from exception, and have been sworn, or, if 

 Quakers, Moravians, or Separatists, or persons who have been Quakers 

 or Moravians, have made their solemn affirmation, in case of treason or 

 felony, well and truly to try and true deliverance make between the 

 queen and the prisoner whom they have in charge, and, in cases of 

 misdemeanor, well and truly to try the issues joined between the < 

 and the defendant, the case, where counsel U retained for the prosecution , 

 is to be opened by him, or, if two or more counsel are retained, by the 

 leading one, according to his instructions, unless the case is so plain as 

 not to require any statement The counsel for the prosecution ought, 

 however, to confine himself, so far as possible, to a simple statement 

 of the facto which he expects to prove, and to abstain from any appeal 

 to the passions of. the jury, more particularly in cases where the prisoner 

 has no counsel. After the opening, or, where no counsel U engaged 

 for the prosecution, immediately after the swearing of the jury, the 

 examination of the witnesses on behalf of the Crown commences. 

 Before being examined on oath or affirmation is administered to each 

 witness " that he will true answer make to such questions as the 

 court shall demand of him, and will tell the truth, the whole truth, 

 and nothing but the truth." Where there is counsel, he examine- i In- 

 witnesses ; where them is none, that duty devolves on the court In 

 criminal cases a single witness, swearing to the actual offence, or to 

 such facto as necessarily lead to the inference that it has been com- 

 mitted, if believed by the jury, is generally sufficient to substantiate 

 the charge. In treason, perjury, and the offences of tumultuously 

 petitioning, affirming that parliament has a legislative authority wit hoi it 

 the crown, or that any person is entitled to the crown contrary to the 

 Act of Settlement, and blasphemy under the provisions of 9 ft 10 

 Wm. III. c. 32, however, there must be two witnesses. In all oases, 

 also, the prisoner's confession, if made in consequence of a charge 

 against him, and in a direct and positive manner, voluntarily and 

 without promise or threat operating on his mind at the time of making 

 it, is sufficient, even if there be no other proof that the crime with 

 which he U charged has been committed, for the jury to convict 

 upon, if they believe it to be true. And the single unsupported testi- 

 mony of an accomplice is sufficient (except where two witnesses are 

 required), if the jury believe his story; but it is usual in such cases 

 for the court to direct the acquittal of the prisoner. If, howc 



; 'lice be corroborated by unsuspicious evidence as to such parts 

 of his testimony as show that his story has not been fabricate'!. ilu- 

 court will not interfere. 



There are four kinds of proof by which criminal charges may be 

 sustained : 1, ptailire, as by the direct testimony of a witness who saw 

 the fact : "2, r!rrum*t<tiitiul. when n number of facto are presented 

 which are inconsistent with any other hypothesis than that of the 

 prisoner's guilt ; 3, prctumplive, as when the possession of a stolen 

 article casts on the prisoner the burden of showing how he obtained it; 

 4, coHfatioHol, where the prisoner makes a voluntary admission of his 

 guilt, as already mentioned. The general rules of evidence in criminal 

 proceedings are the same as those which are applicable in civil cases. 

 | KVII-I.M i:.] A husband or wife of an accused person, however, can- 

 not be a witness for or against each other (unless upon a charge of 

 criminal violence done by either to the person of the other) contrary 

 to the rule in civil caws, which now admits the testimony of husband 

 in 1 v. ife for or against each other. The prosecutor, also, notwithstand- 

 ing his connection with the proceedings against the ] 

 peteut witness in support of the charge; for such proceedings are 

 carried on in the name of the crown, and the prosecutor has, according 

 to legal construction, no direct interest in the result His wife, there- 

 fore, may be a witness either for the prosecution or for the prisoner. 



In tlif rv lit oi tile ili-ath or illness of a witness, his deposition in ay 

 be read. In criminal cases, too, instruments arc admitted in evidence, 

 although not duly (temped. (17 A :t, . i!7.) 



After the examination of each witness, he may be cross-examined on 

 behalf of the prisoner. When the cross-examination is finished, the 

 counsel I'.v whom the witness was called is entitled to re-examine him 

 for the purpose of explaining any matters touched upon or referred to 

 in the cross-examination, into which confusion may have been intro- 

 duced by the questions on the prisoner's behalf. The court may also 

 put any question it thinks proper to the witnesses, and for this 

 purpose may recall a witness at any stage of the inquiry. 



