RULE 250.-A person convicted of any felony not punishable with death (other than simple larceny after a previous conviction for felony where the maximum punishment is penal servitude for ten years, 24 & 25 Vict c. 96, s. 7), committed after a previous conviction for felony, may be sentenced to any period between penal servitude for life and for three years, and imprisonment with or without hard labour not exceeding two years.

7 & 8 Geo. 4, c. 28, s. 11, and 54 & 55 Vict. c. 69.

In the case of simple larceny or any offence made punishable by the Larceny Act, 1861, as simple larceny, after a previous conviction of any indictable misdemeanour punishable under the Larceny Act, the maximum punishment is seven years' penal servitude.

RULE 251.-In the case of all enactments in force on the 5th of August, 1891, under which there is power to award penal servitude, the Court has absolute discretion to impose any sentence of penal servitude from three years to five years or any greater period authorized by the enactment; or imprisonment with or without hard labour not exceeding two years (which last also applies to future enactments unless otherwise provided therein).

In the case of an indictment for a common law offence, not embodied in a statute, it seems that the old common law punishment could be inflicted; but this is by no means free from doubt.

The words of 54 & 55 Vict. c. 69, ss. 1 and 2, are:- "Where under any enactment, in force when this section comes into operation, a Court has power to award a sentence of penal servitude, the sentence may, at the discretion of the Court, be for any period not less than three years and not exceeding five years, or any greater period authorized by the enactment."

"Where under any Act now in force, or under any future Act, a Court is empowered or required to award a sentence of penal servitude, the Court may in its discretion, unless such future Act otherwise provides, award imprisonment for any term not exceeding two years, with or without hard labour."

RULE 252.-A prisoner who is convicted upon an indictment for forgery at common law cannot be sentenced to hard labour under section 29 of the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), as having been convicted of the offence of a cheat or fraud punishable at common law.

R. v. Hamilton, (1901) 1 K. B. 740; 70 L. J. K. B. 480; 84 L. T. 332; 49 W. R. 575; 65 J. P. 265.

RULE 253.-By the Probation of First Offenders Act (50 & 51 Vict. c. 25), if a first offender is convicted of larceny or false pretences, or any other offence punishable with not more than two years' imprisonment, the Court may, having regard to the youth of the offender or the trivial nature of the offence, in its discretion release the offender on his entering into a recognizance, with or without sureties, to keep the peace and come up for judgment if called upon.

This Act, were it not for the proviso that, in the event of a breach of the conditions by the offender, the Court may issue a warrant for his apprehension, on which he may be remanded, would be useless; as the Courts have always exercised such a discretion as purports to be given thereby, and the Act confers no greater jurisdiction than has always obtained (see p. 177, infra).

RULE 254.-Principals in the second degree and accessories before the fact, in the case of any felony, may be punished in all respects as principals in the first degree.

This is laid down in Steph. Dig. Cr. Law, p. 36, and is undoubtedly correct. Although, of course, if a statutory punishment was provided in any particular case (of which I can find no instance) for principals in the second degree, such would have to be followed.

It would be unprofitable to trace the development of the law on this point, but reference may be made to 2 Hawk. c. 25, s. 64; the Coalheavers' Case (1 Leach, 66; Fost. C. C. 356, 357, 359); 7 & 8 Geo. 4, c. 28, s. 7; the Consolidation Acts of 1861; and 24 & 25 Vict. c. 94, s. 2.

RULE 255.-An accessory after the fact in felony other than murder, when a maximum sentence of penal servitude for life may be imposed (24 & 25 Vict. c. 100, s. 67), is liable to be imprisoned with or without hard labour for any term not exceeding two years, and to be ordered to enter into recognizances, with or without sureties, to keep the peace. 24 & 25 Vict. c. 94, s. 4.

RULE 256.—Judgment should be given on each count of an indictment containing two or more counts. The reason for this rule will appear from the cases cited below:

:

In O'Connell v. R. (11 Cl. & F. 155; 9 Jur. 25; 1 Cox, 413), it was held that where an indictment contains several counts, of which one is bad, a general judgment for the Crown is bad.

In Campbell v. R. (2 Cox, 469; 11 Q. B. 399; 2 New Sess. Cas. 297; 17 L. J. M. C. 89; 12 Jur. 117), an indictment contained two counts for

(1.) Stealing goods in a dwelling-house above the value of 57. (2.) A simple larceny of those goods.

By the jury process, the jury were summoned to inquire whether the prisoners were guilty "of the felony in the indictment aforesaid above specified," and the verdict was that they were guilty of the felony aforesaid, and they were sentenced to transportation. Upon error, it was held that the judgment was bad, it being uncertain to which of the counts the verdict applied, and if it applied to the latter that count would not support the judgment (see also Holloway v. R., 2 Dears. C. C. 28; and Gregory v. R., 15 Q. B. 957; 19 L. J. Q. B. 366; 15 Jur. 79).

As to the other matters connected with punishment, it should be noted that the sentence runs from the first day of sittings of a Court of oyer and terminer or gaol delivery, unless otherwise ordered (see also as to High Court, C. O. R. 179); but at quarter sessions from the day on which it is given, unless otherwise ordered (12 & 13 Vict. c. 45, s. 7; R. v. Wilkes, 4 Bro. P. C. 367; 4 Burr. 2527; R. v. King, 7 Q. B. 782; 14 L. J. M. C. 172); in the absence of contrary intention, that a "month" means a calendar month, and that in computing a sentence the day on

which the sentence begins is included, and the numerically corresponding day of the month in which the sentence expires is excluded. But if there be no such day, the sentence expires on the last day of that month (Migotti v. Colville, 48 L. J. C. P. 695; 4 C. P. D. 233; 40 L. T. 747; 27 W. R. 244; 14 Cox, 305); that sentence on a convict already imprisoned under previous sentence may be ordered to commence at the expiration of the previous sentence (7 & 8 Geo. 4, c. 28, s. 10), and that the Court has power to order that sentences for different offences, whether contained in different counts of one indictment or not (Castro v. R., 6 App. Cas. 229; 50 L. J. Q. B. 497; 44 L. T. 350; 29 W. R. 669; 14 Cox, 546; 45 J. P. 452), and, whether felonies or misdemeanours (R. v. Wilkes, 4 Bro. P. C. 367; 4 Burr. 2527), shall be either consecutive or concurrent (R. v. Williams, 1 Leach, 536; S. P., R. v. Cutbush, 36 L. J. M. C. 70; L. R. 2 Q. B. 379; 16 L. T. 282; 15 W. R. 742; 10 Cox, 439; R. v. Robinson, 1 M. C. C. 413), except in the case of the conviction of a convict at liberty on ticket-of-leave, when the fresh sentence must be made to follow the sentence which the convict will be sent back to serve (R. v. King, (1897) 1 Q. B. 218, per Hawkins, J.; 66 L. J. Q. B. 87; 75 L. T. 392; 18 Cox, 447; 61 J. P. 329); that, if a person is out on recognizance to come up for judgment when called upon, it is the custom of the Central Criminal Court, when a fresh offence by such a person is brought to its knowledge, to require the police or prosecutor to apply to the Court that the offender be brought up; on the application, all the facts are enquired into, and if the Court thinks that, in the circumstances, it should pass judgment, it orders the person to be notified to appear on a day named, and in default of his appearance a bench warrant is issued for his apprehension. This custom is entirely reasonable, and if occasion arose might well be followed in other Courts.

B.R.

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CHAPTER XIII.

COSTS.

RULE 257.-The power to order the payment of the costs of a criminal trial out of public money is statutory, the rule at common law being that the Crown neither paid nor received costs.

The first alteration in the old rule was made by 27 Geo. 2, c. 3, but the main statute dealing with the subject is 7 Geo. 4, c. 64. This has been amended by 14 & 15 Vict. c. 55, s. 1, and other statutes.

The question is sometimes raised where there are two prosecutors, the police and the party interested, which party is to be considered the prosecutor for the purpose of receiving costs.

The leading case on the point is R. v. Bushell (16 Cox, 367; 52 J. P. 136). That was a case where the accused was indicted for an aggravated assault on his wife. The complainant was present at the magisterial inquiry, but she did not apply to be bound over to prosecute. Subsequently she instructed a solicitor to retain counsel to conduct the case at the assizes. Before this the magistrates had bound over a constable to prosecute, and he had employed a solicitor (the magistrates' clerk), who had instructed counsel.

At the assizes the Court apparently gave the conduct of the prosecution to the wife; at least, they allowed her the costs of the prosecution.

Lord Coleridge, C. J., distinguished the case from that of R. v. Yates (7 Cox. 361), where the conduct of a manslaughter prosecution was given to the police, and said, "Where there is a private prosecutor, and that prosecutor conducts the case before the magistrates, I do not think the magistrates' clerk ought to step in and take the case out of the private prosecutor's hands."