137 



LAW, CRIMINAL. 



LAW, CRIMINAL. 



133 



When the case for the prosecution is closed, the prisoner or hia 

 counsel (who has, since the passing of the 6 and 7 Wm. IV. c. 114, the 

 same right to address the jury on the merits of the case in felony as 

 he previously had in treason and misdemeanor) is entitled to address 

 the jury, and in so doing to comment on the entire case for the prose- 

 cution ; and if he intends to adduce evidence, may open that evidence 

 with any particulars he may think proper. After the prisoner or his 

 counsel has finished his address, the witnesses for the defence are to 'be 

 sworn, and their evidence gone into. The accused is always allowed to 

 call witnesses to speak to hia general character, as being inconsistent 

 with the imputed offence, and it is for the jury to estimate the value 

 of such evidence. 



When the prisoner's evidence is closed, witnesses may be called on 

 behalf of the prosecution to give specific contradictions to the 

 denials by the prisoner's witnesses on cross-examination, and generally 

 to give any evidence in reply which is strictly applicable to the defence 

 and which could form no part of the original case. Where such evi- 

 dence is given, the prisoner or his counsel has a right to address the 

 jury on it before the general reply for the prosecution. 



When the defence is ended, the counsel for the prosecution, in all 

 cases where witnesses have been called on behalf of the accused, is 

 entitled to reply on the entire case and on all the observations made 

 by the other side during its progress ; but in practice, where the 

 evidence given on behalf of the accused is confined to character, it is 

 not usual to reply. After the case on both sides is closed, the court 

 sums up the evidence, and in so doing directs the attention of the jury 

 to the precise issue they have to try, and applies the evidence to that 

 issue. Upon the trial of a person for a non-capital felony committed 

 after a previous conviction for felony, the jury is not to be charged to 

 inquire concerning such previous conviction, until they have inquired 

 concerning such subsequent felony and have found such person guilty 

 of the same ; and where such previous conviction is stated in the 

 indictment, the reading of such conviction to the jury is to be deferred 

 until after such finding. Where, however, such person gives evidence 

 of good character, the prosecutor may in answer thereto give evidence 

 of such previous conviction, before such finding, and the jury may 

 inquire concerning such, previous conviction at the same time that 

 they inquire concerning the subsequent felony. (6 & 7 Win. IV. 

 c. Ill; 14 & 15 Viet. c. 19.) The summing up being concluded, the 

 jury proceed to consider their verdict. If, on consultation in the jury- 

 box, they are not able to agree within a convenient tune, they retire, 

 and a bailiff is sworn to keep them together without meat, drink, fire, 

 or candle till they are agreed. This rule, however, has been relaxed in 

 modern times. In cases of misdemeanor, where the trial lasts more 

 than one day, the court will generally allow the jurors to return to 

 their homes, the j ury engaging to allow no one to speak to them on 

 the subject of the trial. But in cases of treason or felony, the course 

 has been to permit them to retire in a body to some tavern, where 

 accommodation is provided for them by the sheriff and his officers, 

 who are sworn to keep them together, and neither to speak to them 

 themselves nor to suffer any other person to speak to them touching 

 any matter relating to the trial. 



When the jury have agreed upon their verdict, they signify that 

 they are ready to deliver it ; and on returning into court for that 

 purpose, their names must be called over, and all twelve must be 

 within hearing when it is given. The foreman of the jury is the 

 person who is to deliver the verdict; and in cases of treason or felony, 

 it can only be received in open court and in the presence of the 

 r : in cases of misdemeanor it may be otherwise. The verdict 

 in.-iy be either " Guilty " or " Not Guilty," or may be a special one ; 

 and maybe "Guilty" upon one count of an indictment, and " Xot 

 Guilty " upon others ; or may be " Guilty " as to part of a count, and 

 " Not Guilty " as to the remainder, where an offence is charged which 

 includes a lesser crime of the same degree, and the latter only is proved ; 

 as where murder is charged, and the proof is of manslaughter ; and 

 persons indicted for the actual commission of felonies or misdemeanors 

 may be convicted of the attempt (14 & 15 Viet. c. 100, s. 9.) A special 

 verdict is the finding of all the facts specially, where the jury doubt 

 whether they constitute the offence in the indictment, and leaves the 

 court to give judgment according to the legal effect of the facts so 

 frond. 



Where upon the trial evidence is given of insanity at the time of 

 .itting the offence charged, and the jury acquit, they are required 

 to find specially whether the accused was insane at the time of the 

 commission of the offence, and whether he was acquitted on that 

 accoiftit ; and it' they find in the affirmative, the court is to order him 

 to be detained till the queen's pleasure be known ; and she may give 

 such order for his safe custody during her pleasure as she may think 

 fit. (39 & 40 Geo. III. c. 94, s. 1 ; 3 & 4 Viet. 3. 64, s. 3.) On a 

 verdict of acquittal, or where he is discharged by proclamation for 

 want of prosecution, the prisoner is to be immediately set at large in 

 open court, without the payment of any fines in respect of such 

 discharge. (14 Ueo. 111. c. 20; 55 Geo. III. c. 60; 8 and 9 Viet, 

 c. 114.) 



When a verdict of guilty has been returned against a prisoner, the 

 court, except in tho case of prosecutions pending in the Queen's Bench, 

 may proceed at once to pass sentence upon him, unless he allege some 

 matter or thing sufiicient in law to arrest or bar judgment. In prose- 



cutions pending in the Queen's Bench, however, the prisoner is allowed 

 four days for moving in arrest of judgment ; or, in cases of mis- 

 demeanor, for a new trial or writ of venire facias de novo. Also where 

 the trial at any sittings or assizes is upon a record of the Queen's 

 Bench, the judge before whom the verdict is taken may, under 11 Geo. 

 IV. & 1 Wm. IV. c. 70, s. 9 (except where the prosecution is by 

 information filed by leave of the Queen's Bench, or such ases of 

 information filed by the attorney-general wherein he prays that judg- 

 ment may be postponed), pass sentence at once ; but such sentence is 

 not to have the force and effect of a judgment of that court, until after 

 the expiration of six days after the commencement of the ensuing 

 term, during which period the prisoner may move for a new trial, or 

 to have the judgment amended. Except in the last-mentioned case o 

 a trial at the sittings or assizes upon a record of the Queen's Bench, or 

 where the offence of which the prisoner is convicted is a misdemeanor 

 punishable by a simple fine, or where the Queen's Bench, after con- 

 viction for misdemeanor, thinks proper to dispense with his attendance, 

 sentence cannot be pronounced against a prisoner unless he be present 

 in court at the time. 



Judgment may be arrested where the offender has received a pardon 

 since his arraignment or after conviction becomes insane, or, having 

 been out of custody since his conviction, denies that he is the person 

 convicted (in which last case a jury is to be impauneled to try the 

 fact), or for some defect apparent in any part of the record, as regards 

 either the jurisdiction of the court, the statement of the offence or 

 any of the proceedings thereon, but not for any of the mere 

 technical defects specified in 7 Geo. IV. c. 64, ss. 20 and 21. If 

 the judgment be arrested, all the proceedings against him are to be 

 set aside, and judgment of acquittal is to be pronounced in his 

 favour ; but he may be prosecuted again for the offence of which he 

 is so acquitted. 



A new trial may be had on the application of the defendant in all 

 cases of misdemeanor pending in the Queen's Bench, where it appears 

 to the court that the awarding one is essential to justice ; as, for 

 instance, where the verdict Ts contrary to evidence or the directions of 

 the judge, or evidence has been improperly received or rejected at the 

 trial. The court of Queen's Bench will also in its discretion, where a 

 party is acquitted of a misdemeanor on a prosecution pending in that 

 court, allow a new trial, on the application of the prosecutor, if such 

 acquittal has been obtained by any fraudulent means or practice, as 

 where the party acquitted has kept back any of the prosecutor's 

 witnesses, or neglected to give due notice of trial. 



A writ of venire facias de novo, the effect of which is the same as 

 granting a new trial, may be awarded where, by reason of misconduct 

 on the part of the jury, or of some uncertainty or ambiguity or other 

 imperfection in their verdict, or of any other irregularity or defect 

 in the proceedings or trial, appearing on the record, the proper effect 

 of the first venire has been frustrated, or the verdict has become void 

 in law. 



Neither new trials nor writs of venire facias de novo are grantable in 

 cases of treason or felony. 



Where a new trial or writ of venire facias de novo is awarded, tho 

 parties stand in the state in which they were immediately before the 

 first trial : the whole case is to be re-heard, and the first verdict cannot 

 be used upon the new trial, or as evidence of any matter found by such 

 verdict, or in argument. 



After sentence pronounced against an offender, the judgment of .the 

 court may be falsified or reversed, either by plea without writ of error 

 or by writ of error : by the former, for some matter not apparent upon 

 the face of the record, as want of authority in the court by whom 

 the judgment was pronounced ; by the latter, for the same matters as 

 are sufficient to arrest a judgment, and also for any material defect in 

 the judgment itself. Where the judgment has been pronounced by a 

 court of oyer and terminer, jail delivery, or quarter-sessions of the 

 peace or of a county palatine, the writ of error is to be brought in the 

 court of Queen's Bench, and for that purpose the indictment and other 

 proceedings thereon must be removed into that court by writ of cerli- 

 urari [CEUTIOHARI] : where it has been pronounced in the Queen's 

 Bench, it is to be brought in the Exchequer Chamber, before the 

 justices of the Common Pleas and barons of the Exchequer, from 

 whose judgment a writ of error lies to the House of Lords. In cases 

 of treason and felony it is in the discretion of the crown to grant or 

 refuse a writ of error : in all other cases the fiat of the attorney-general 

 must be first obtained, and this he ought to grant upon probable cause 

 of error shown. When issued, the writ of error stays the execution of 

 the judgment, where it has not been carried into effect during the tune 

 that such writ is pending, except that in cases of treason or felony the 

 offender is not entitled to be liberated on bail. In cases of misde- 

 meanor, however, where he is imprisoned under execution, or any fine 

 has been levied, either in whole or in part in pursuance of tho judg- 

 ment, he is entitled to be discharged from imprisonment and to receive 

 back any money levied on account of such fine, until the final deter- 

 mination of the Writ of Error. (8 & 9 Viet., c. 68, s. 1.) If the judg- 

 ment be falsified or reversed, such judgment and the execution there- 

 upon, and all former proceedings, become thereby absolutely null and 

 void; and the person the judgment against whom is so falsified or 

 reversed, if living, and, if dead, his heir or executor, is restored to all 

 things which such person may have lost by such judgment and other 



