(d) The name or description of any matter or thing whatsoever therein named or described. (e) The ownership of any property named or described therein.

In order to amend under this Act, the Court must hold that the variance is not material to the merits, i.e., not material to the real question to be decided at the trial, and that the defendant cannot be prejudiced thereby in his defence on the merits. The Act also contains a provision as to postponing the trial, but says nothing as to costs incurred by amending the variance.

Byles, J., in R. v. Welton (9 Cox, 297), laid down that "Every amendment is to be made which is necessary for determining the real question in controversy between parties."

In R. v. Frost (Dears. C. C. 474; 24 L. J. M. C. 116; 6 Cox, 526), it was held that amendments under the above Act must be made before verdict.

RULE 214.—An amendment must be made by the Court before which the trial takes place; aliter, if the trial is in the High Court at nisi prius, and with the consent of counsel the Court reserves the point whether the amendment should have been made.

R. v. Harris, Dears. C. C. 844; R. v. Frost, Dears. C. C. 474; 24 L. J. M. C. 116; 6 Cox, 526; R. v. Sturge, 3 E. & B. 734.

RULE 215.-An amendment will not be made if it alters the character of the offence charged (R. v. Wright, infra).

The leading case on the subject of amendment is R. v. Welton (9 Cox, 297). In that case, the indictment charged an attempt to murder a child named Annie Welton. There was no proof that the child in question ever bore that name.

Byles, J., amended the indictment under 14 & 15 Vict. c. 100, s. 1, by striking out the words " Annie Welton" and substituting "a certain female child whose name is to the jurors unknown." In R. v. Wright (2 F. & F. 320), the indictment charged a forgery as a statutory felony, whereas in fact it was a forgery at common law, and a misdemeanour.

CHAPTER X.

VERDICT AND PROCEEDINGS THEREON-MOTION IN ARREST

OF JUDGMENT.

RULE 216.-At the close of the evidence and addresses by counsel, the judge sums up, and at the termination of the summing-up the jury consider their verdict (retiring for the purpose, if they deem it desirable to do so).

See as to oath to bailiff, Appendix F., p. 395.

RULE 217.-The verdict of the jury may be(a) general; (b) partial; (c) special.

A general verdict is when there is acquittal or conviction on the whole charge; partial, when the verdict is as to part only (e.g., where an indictment charges two or more misdemeanours, and there is an acquittal on one count and a conviction on another); special, when the finding is as to specific questions put to them by the Court, it being left to the Court to determine what verdict should be entered on the finding.

"The jury have a liberty to find a general verdict whenever they think fit to do so, including both the law and the facts of the case submitted to their decision " (Chitty, Cr. L. Vol. I. p. 656). And (it is submitted) they can properly refuse to find a special verdict (4 Bla. Com. (ed. 1813) p. 328); Bushell's Case (6 St. Tr. 999); R. v. Allday (8 C. & P. 126).

It is stated in a leading text-book (on what authority does not appear) that a jury has a right to find a special verdict; but I think, except in the one instance infra, that the jury has no such right, although, as in R. v. Staines Local Board (52 J. P. 215), it may assist the Court by finding such a verdict, it being relieved by the Court of the obligation to find "a true verdict according to the evidence."

The exception referred to above is statutory. By the Trial of Lunatics Act, 1883 (46 & 47 Vict. c. 38, s. 2), it is enacted that "where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his

actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act charged or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission."

For an instance of a special verdict, see R. v. Dudley and Stephens (12 Q. B. D. 273; 54 L. J. M. C. 32; 52 L. T. 107; 32 W. R. 347; 15 Cox, 621; 49 J. P. 69).

In that case, at the suggestion of the judge, the jury found facts and left it to the Court to say whether the accused were, on these facts, guilty of murder. The trial took place at assizes, and on the special verdict being given, the assizes were adjourned to the Royal Courts of Justice, where another adjournment took place, the case being referred to five judges of the Queen's Bench Division.

After argument before those judges, the Court intimated that there would be a conviction, and a further adjournment took place; after which, the judgment of the Court was delivered, and the accused (being present) were sentenced to death.

RULE 218.-The jury must arrive at an unanimous decision. If they are unable to agree, the Court will discharge them, and order the accused to be tried again at the same or ensuing sittings.

The verdict must be announced by the foreman in the open Court, and, in cases of treason and felony, in the presence of the accused (but see supra, p. 72). Jurors not dissenting from the statement of the foreman will, in general, be presumed to have approved the verdict, if they were present when it was delivered.

In R. v. Wooler (2 Stark. N. P. 111; 18 R. R. 402), all the jury were not present when a verdict of guilty was delivered, and it was therefore uncertain whether they all heard the verdict pronounced by the foreman, and so a new trial of the information was ordered.

RULE 219.-The Court is entitled to ask a jury to reconsider their verdict; but if they persist in the verdict, it must be recorded. If a mistake in

recording a verdict is made, the Court may amend, provided that the mistake is discovered before the jury are discharged.

It is submitted that if a jury by mistake returned a verdict of acquittal and the accused was discharged, and a fresh trial on the same charge was begun against the accused before the same jury, no amendment of the record could be made, the jury, so to speak, having lost seisin of the first case.

In R. v. Vodden (Dears. C. C. 229; 23 L. J. M. C. 7; 17 Jur. 1014; 2 W. R. 55; 6 Cox, 226), on the trial of an indictment for larceny, one of the jurors delivered a verdict of Not Guilty, which was entered in the minutes of the clerk of the peace, according to the usual practice. The prisoner was discharged out of the dock. Immediately he was discharged, and before the jury had left the box, others of the jury interfered and said the verdict was Guilty. The prisoner was brought back to the dock, and the jury was again asked what their verdict was; they all answered Guilty, and the person who delivered the first verdict said that he had said Guilty. The chairman of sessions thereupon ordered a verdict of Guilty to be recorded. The Court of Crown Cases Reserved agreed that this was the right course to pursue. Pollock, C. B., said: "We do not think the Court is called upon to say at what interval of time a correction should be made ... in the present case the interval was not too long."

RULE 220.--Although a jury may, with the assent of the Court, leave it to the Court to say what their verdict should be in law, the Court cannot of itself determine any fact.

In R. v. Farnborough (1895, 2 Q. B. 484; 64 L. J. M. C. 270; 15 R. 492; 73 L. T. 351; 41 W. R. 48; 18 Cox, 191; 59 J. P. 505), the jury having stated that they could not agree that the accused was guilty of larceny, the chairman asked whether they believed the evidence of the prosecutor. They said yes, and a verdict of guilty was entered. The conviction was subsequently set aside, there having been no finding by the jury that the prisoner had acted animo furandi.

RULE 221.-If the jury find the accused not guilty, and there is no other indictment against

him, he is entitled to be discharged without fee, on the last day of the then sittings.

55 Geo. 3, c. 50, s. 7, sub-s. 4; 8 & 9 Vict. c. 114; and Steph. Dig. Cr. Proc. 190.

There is some doubt about the part of this rule contained in the italicised words, but inasmuch as in making up the record, the whole of the sittings is dated as having been on the first day, the law probably is as stated in the rule.

It should, however, be borne in mind that in estimating the length of punishment awarded, every day from the date of conviction, whether included in the sittings or not, is reckoned. The point is at least arguable. This does not apply to discharge on defective indictment, when the prisoner may be detained pending the presentment of another indictment.

In Mee v. Cruikshank (86 L. T. 708; 66 J. P. 89), the plaintiff was tried and acquitted at quarter sessions, and was ordered to be discharged. He was, however, taken by the prison warders to the cells and there detained and questioned as to his name, parentage, &c. It was held that he was entitled to recover damages for false imprisonment from the gaolor.

RULE 222.-If a prosecution fails by reason of a defect in the indictment, the accused may be detained pending the presentment of another indictment.

66

The words in the Act (supra) requiring the immediate discharge of . . . one who on his or her trial shall be acquitted" do not apply to such a case.

RULE 223.-The jury may acquit one of several jointly indicted accused and convict the others.

24 & 25 Vict. c. 96, s. 94.

If the effect of an acquittal of one or more jointly indicted persons is to make the person convicted incapable of the offence charged, a conviction cannot be sustained. E.g., if two persons are indicted for conspiring with each other to defraud a third person, and one of the two is acquitted, the other cannot be convicted, as one person cannot conspire with himself (R. v. Manning, 12 Q. B. D. 241; R. v. Plummer, [1902] 2 K. B. 339; 71 L. J. K. B. 805; 86 L. T. 836; 51 W. R. 137; 66 J. P. 647; 20 Cox, 269).