the accused notifying the clerk of any objection to let the person so objected to stand by so long as there remain twelve jurors to try the case.

In practice the question was considered in R. v. Geach (9 C. & P. 499), the head-note of which runs as follows: "If on the trial of a case of felony, the prisoner peremptorily challenge some of the jurors, and the counsel for the prosecution also challenges so many that a full jury cannot be had, the proper course is to call over the whole of the panel in the same order as before, only omitting those who have been peremptorily challenged by the prisoner, and as each juror then appears for the counsel for the prosecution to state their cause of challenge, and if they have sufficient cause, and the prisoner does not challenge, for each juror to be sworn."

If a prisoner has exhausted his number of peremptory challenges, he may still examine any other of the subsequently called jurors as to their qualifications.

RULE 183. It is doubtful whether on any other plea than that of not guilty an accused can peremptorily challenge any juror.

"It seems, but it is not certain, that in such cases no peremptory challenges are allowed" (Steph. Dig. Cr. Proc. p. 186).

In 2 Hale, p. 267, it is said: "By the common law, if a man were outlawed of felony or treason and brought a writ of error upon the outlawry, and assigned some error in fact, whereupon issue was joined, he should not challenge peremptorily, or without The like law seems to be, if he had pleaded any foreign plea in bar or in abatement, which went not to the trial of the felony, but of some collateral matter only."

cause.

See also 2 Hawk. c. 43, s. 6, where it is stated: "It hath been anciently adjudged that a man shall have the same peremptory challenge upon an issue found upon collateral matter alleged in avoidance of an outlawry for a capital crime as he may on the general issue. But the contrary is holden by Hale.

See R. v. Ratcliffe (1 W. Bl. 3), where the accused answered, "that he was not the person mentioned in that record (of attainder of treason)." Mr. Attorney then averred that he was; and issue being then joined, a jury was called to try it at the

bar instanter a jury was impanelled on the spot by the under-sheriff of Middlesex, who attended for that purpose.

"The prisoner was allowed no peremptory challenges to the jury (though he demanded that liberty), on the authority of Lord Hale, 2 P. C. 367."

The above was an extreme case, for the issue was collateral only in name.

RULE 184.-If two or more accused are jointly arraigned, they may sever their challenges, or, in other words, each has a right to the full number of challenges.

"And if twenty men were indicted for the same offence, though by one indictment, yet every prisoner shall be allowed his peremptory challenge of thirty-five persons" (2 Hale, 268).

It is stated in Archbold's Criminal Pleading, p. 180, that if prisoners were to refuse to join in their challenges, the Crown could proceed against each separately (Co. Litt. 156; Fost. 106; 2 Hale, 268); but see R. v. Fisher (3 Cox, 68), where Platt, B., stated: "As to the case of R. v. Seeley, the judge may have allowed the challenges to have been severed; but it is an ill practice to do so."

Although the report does not state it, it is probable that the learned judge in question, in refusing to try a principal and accessory separately, deprived the prisoners of their undoubted right to sever their challenges.

RULE 185.-If a panel is exhausted by challenges, it is doubtful whether the judge can award a tales or not "without a warrant from the Attorney-General, or an express assignment from the Court before which the inquest is taken."

2 Hawk. c. 41, s. 18.

It is stated in Bla. Com. 335, that a tales can be awarded in such circumstances. The point, however, is of but small moment, as, in such a case, the Court would order the sheriff to return a panel at once, without further precept (1 Hale, 28, 261; 6 Geo. 4, c. 50, s. 20).

In R. v. Cropper (2 Mood. C. C. 18), "the jury panel contained the names of forty-eight persons. On its being called over, seven were challenged by the prisoner and five by the Crown. Only eight of the forty-eight jurymen were in attendance besides those challenged, and these eight went into the box. The panel had been entirely called through.

"The counsel for the prisoner then proposed that the panel should be again called, which was done, and on the first challenge on the part of the Crown, the counsel for the prisoner called upon the counsel for the Crown to assign cause of challenge. Cause was assigned, which appeared to the learned Baron to be insufficient, and that juror was sworn. The next juryman challenged on the part of the Crown was sworn on the voir dire, and examined for cause, which cause was not allowed by the learned Baron, and he was then sworn. The jury were thus completed and sworn."

This jury disagreeing, after being locked up without food from seven o'clock at night until noon the following day, were discharged, and "the under-sheriff was then ordered by the Court to summon a panel of seventy-two jurymen, and the Court was adjourned. The propriety of the panel was objected to by the prisoner's counsel; but it was subsequently upheld."

"Tales" is the first word in the phrase tales de circumstantibus, which literally means, "like men from those standing around."

It refers, as in the text, to an occasion when, from one reason or another, there are not sufficient of the original jury panel left to form a jury. Either party may then "pray a tales," or, in other words, ask that from the bystanders the jury may be made up (6 Geo. 4, c. 50, s. 37; 1 Ch. Arch. Prac. 12th ed. p. 383).

Since the passing of 7 & 8 Will. 3, c. 32, the "bystanders" must be those summoned as jurors to try the other causes (R. v. Hill, 1 C. & P. 663).

RULE 186. If a challenge is wrongly disallowed, whether it be to the array or the polls, peremptory or for cause, the proceedings may be set aside on writ of error, and a venire de novo ordered (but not a new trial) (R. v. Edmonds, 1 St. Tr. N. S. 715; 4 B. & Ald. 471; 23 R. R. 350; and see infra, p. 226).

Gray v. R., 6 St. Tr. N. S. 117; 11 Cl. & F. 427; 8 Jur. 879.

CHAPTER IX.

PROCEDURE ON TRIAL: EVIDENCE-DISCHARGE OF JURY AND AMENDMENT.

RULE 187.-The challenges having been disposed of, the jurors are sworn or allowed to affirm.

In felony, each juror is sworn separately; in misdemeanour, the jury is sworn once and for all, three men to one book. The oath is as follows:

"You shall well and truly try and true deliverance make between our Sovereign Lord the King and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence. So help you God." In misdemeanour :

"You shall well and truly try, touching the matter in question, between our Sovereign Lord the King and the defendant, and a true verdict give according to the evidence. So help you

God."

See as to affirmation and oath generally, Appendix F., p. 391. In practice, in felony, when the jurors are in the box, the clerk says to each of them, "A. B., take the book in your right hand," and, this being done, proceeds to swear him. When all the jurors are sworn, the clerk says: "Gentlemen of the jury, answer to your names." He then calls over the names, each juror saying "Here" when his name is called, and the assistant numbers each name aloud until the full number is made. The clerk then says: "Gentlemen of the jury, are you all sworn?" and, if it appears that they have been, the next stage of the trial is entered upon.

The jury having been sworn, in treason or felony, the crier makes the following proclamation :

"Oyez: If anyone can inform my Lords the King's justices, the King's Serjeant or Attorney-General, before this inquest be now taken, between our Sovereign Lord the King and the prisoners at the bar, of any treasons, murders,

felonies or other misdemeanours committed or done by the prisoners at the bar, let him come forth and he shall be heard, for they now stand at the bar on their deliverance. And all others that are bound by recognisance to give evidence against the prisoner at the bar, let them come forth and give their evidence or else they forfeit their recognisance" (Chitty, Cr. L. Vol. IV. p. 315a and 316).

In the case of quarter sessions, for the "King's justices," &c., the "King's attorney or this Court" may be substituted; but, in my experience, I have never heard of a proclamation being made at sessions, although I think one should be made.

RULE 188.-After proclamation made by an official of the Court, the accused is given in charge to the jury.

The form is:

"Gentlemen of the jury, the prisoner stands indicted for that on the day of 190 , feloniously, wilfully, and of his malice aforethought, he did kill and murder ; upon that indictment he has been arraigned, and upon that arraignment he has pleaded not guilty. Your charge, therefore, is to hearken to the evidence and say whether he is guilty or not guilty."

one

RULE 189.-In misdemeanours there is no proclamation, and no statement is made to the jury by the Court official, but when the jury is sworn, counsel immediately opens his case.

On the application of either side, the Court will order a witness or witnesses out of Court. If a witness disobeys such an order it seems he may still, in the discretion of the Court, be examined (R. v. Colley, M. & M. 329).

RULE 190. The counsel for the Crown opens the facts of the case to the jury, dealing with law in so far as it is necessary in order to define the charge.

Although I have seen it stated otherwise, in practice, in every case, whether accused is defended or not, the Crown counsel should open to the jury the main facts on which he relies to obtain a conviction.