CHAPTER XV.

APPEAL WRIT OF ERROR-CROWN CASES RESERVEDBILL OF EXCEPTIONS-NEW TRIAL VENIRE DE NOVO.

RULE 306.-A decision of a criminal Court may, in certain cases, be reviewed by writ of error: motion for new trial: motion for an award of a venire de novo, and proceedings in the Court for Crown Cases Reserved.

Strictly speaking (save in the case of certain decisions of Courts of Summary Jurisdiction, which are not within the scope of this book), there is no appeal in criminal procedure, and the various methods specified above, of testing the decision of a criminal Court, are—with the exception of motion for a new trial, which refers solely to misdemeanours tried in the King's Bench Division, or sent down by that division to be tried on the civil side at Assizes-matters of form and points of law.

The various methods I shall deal with in the order of their relative importance.

(1.) Writ of Error.

RULE 307.-A writ of error is an original writ issuing from the Crown Office (R. S. C. 31 Jan. 1889), directed to an inferior Court of Record (Lord Raym. 469), and ordering such Court to return the record and proceedings on which final judgment has been given, to the King's Bench Division (C. O. R. (1886) 183), and authorizing that division to examine the record and do justice thereon (11 & 12 Vict. c. 78, s. 5).

It lies in respect of any substantial defect (see 7 Geo. 4, c. 64, s. 21, and 14 & 15 Vict. c. 100, s. 25) appearing on the face of the record which is not

B.R.

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cured by verdict (see Heymann v. R., L. R. 8 Q. B. D. 102, 105; 28 L. T. 162; 21 W. R. 357; 12 Cox, 383, and Aspinall v. R., 2 Q. B. D. 48; 46 L. J. M. C. 150; 36 L. T. 297; 25 W. R. 283; 13 Cox, 563, and supra), and is the only remedy where a question of law has been raised by demurrer (R. v. Fadermann, 1 Den. C. C. 565; 4 New Sess. Cas. 161; T. & M. 286; 3C. & P.353; 19 L.J. M. C. 147; 14 Jur. 377; 4 Cox, 361).

The form of a writ of error is to be found in App., C. O. R. 126. The above definition is framed so as to contain all the essentials of a writ of error, and at the same time to avoid prolixity. It seems from this definition that error will not lie in the case of an information tried in the King's Bench Division. At all events the proper way of questioning an information would either be by motion in arrest of judgment, or by motion for a new trial, or venire de novo.

I append below a few typical cases illustrating the application of the rule.

There are many other cases which might be cited, but if the practitioner will keep in mind the essentials of the given definition, and remember (in the words of Lawrance, J., in King v. R., 61 J. P. 663) that it is the "duty of a Court of Error merely to examine the record for substantial defects apparent upon the face of the record and not cured by the verdict," a reference to these cases will be unnecessary. Error will lie if a challenge to the array is improperly overruled (O'Connell v. R., 5 St. Tr. (N. S.) 1; 11 Cl. & F. 155; 9 Jur. 25; 1 Cox, 413; and see Mansell v. R., 8 E. & B. 54; 27 L. J. M. C. 4; Dears. & B. 375; 4 Jur. (N. S.) 438). It will also lie to reverse an outlawry (R. v. Wilkes, 4 Burr. 2535).

Error will not lie for an objection, made after conviction, that the provisions of the Vexatious Indictments Act, as to entering into recognizances, had not been complied with (Boaler v. R., 57 L. J. M. C. 85; 59 L. T. 554; 16 Cox, 488); nor will it lie where an indictment contains several counts, and on some of them no verdict has been given, provided that a verdict has been found on a good count and judgment given accordingly (Latham v. R., 5 B. & S. 635; 33 L. J. M. C. 197; 10 Jur. (N. S.) 1145; 12 W. R. 908; 9 Cox, 516); nor will it lie for duplicity in pleading (Nash v. R., 4 B. & S. 935; 33 L. J. M. C. 94); nor

where a judge in his discretion discharges a jury who are unable to agree and orders a new jury to be empannelled (Winsor v. R., L. R. 1 Q. B. 390 (see p. 146, supra); but error will lie if a judgment be given generally for the Crown on an indictment containing several counts, one of which is bad (O'Connell v. R., ubi supra); or if there be a conviction by a Court not having jurisdiction to deal with the offence charged (King v. R., 61 J. P. 663). It is somewhat doubtful whether the writ lies at the suit of the Crown as well as at that of the accused.

In Short & Mellor, C. O. Pr. p. 313, it is laid down that " no person can bring a writ of error to reverse such judgment except a defendant who is injured by the judgment." The authorities for this statement are 3 East, 214, and Bac. Abr. Error, A.

The first I am unable to examine, as the reference is inaccurate; but in the second the following is stated: "No person can bring a writ of error to reverse a judgment who was not a party or privy to the record, or who was not injured by the judgment, and therefore is to receive advantage of the reversal thereof."

This, at all events, is far from bearing out the view taken in the text-book, as the Crown is clearly a party to a criminal suit; and, indeed, it points to the opposite.

In United States v. Sanger (U. S. 144, p. 312), the point was discussed by the United States Supreme Court, and the opinion of the Court was delivered as follows:-"The law of England is not wholly free from doubt. But the theory that at common law the King could have a writ of error in a criminal case after judgment for the defendant, has little support beyond sayings of Lord Coke and Lord Hale, seeming to imply, but by no means affirming it; two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder; and an Irish case, and two or three English cases; in none of which does the question of the right of the Crown in this respect appear to have been suggested by counsel or considered by the Court (3 Inst. 214; 2 Hale, P. C. 247, 248, 394, 395; R. v. Walcott, Show. P. C. 127; R. v. Tucker, Show. P. C. 186; S. C., 1 Ld. Raym. 1; R. v. Houston (1841), 2 Crawford & Dix, 191; R. v. Millis (1844), 10 Cl. & Fin. 534; R. v. Wilson (1844), 6 Q. B. 620; R. v. Chadwick (1847), 11 Q. B. 173, 205).

"And from the time of Lord Hale to that of Chadwick's case, just cited, the text-books, with hardly an exception, either assume

or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case; and that a judgment in his favour is final and conclusive (see 2 Hawk. c. 47, s. 12; c. 50, s. 11 et seq.; Bac. Abr. Trial, 1. 9, Error B.; 1 Chit. Cr. Law, 657, 747; Stark. Crim. Pl. (2nd edit.), 357, 367, 371).”

Two cases have been overlooked in this lucid exposition of the law (as it was considered to be), namely, R. v. Levy, and Fox v. R.

In R. v. Levy (1854, 6 Cox, 482), heard in Ireland before the full Court of Queen's Bench, the Crown brought a writ of error for the purpose of having the sentence of the Court of trial set aside, and having the proper (minimum) sentence passed. It was not suggested that there was any objection to the action of the Crown in bringing the writ of error.

In R. v. Fox (10 Cox, 502), heard in Ireland by the Court of Queen's Bench in 1856, the Crown brought a writ of error for the purpose of reversing the judgment of the Court of trial, and passing the proper (minimum) sentence; and here again there was no objection on the ground that it had been obtained by the Crown.

The

Indeed, the prisoner, on the writ, took advantage of another defect, and the conviction was quashed on his application. fact that the objection in question was not taken certainly militates against the force of these cases, and perhaps it is safer to say with the Supreme Court (U. S.) that the law on the point is not wholly free from doubt.

RULE 308.-One defendant may bring a writ of error without joining his co-defendant.

Wright v. R., 14 Q. B. 148; 16 L. J. Q. B. 10; 11 Jur. 103; 2 Cox, 91.

RULE 309.-A writ of error may be issued to a Colonial Court.

In R. v. Lees (E. B. & E. 828; 27 L. J. Q. B. 403), the question whether the writ could be issued to the Island of St. Helena was discussed but not decided.

In the matter of John Anderson (30 L. J. Q. B. 128), it was

held that the Superior Courts have jurisdiction at common law to issue a writ of habeas corpus subjiciendi to any part of the dominions of the Crown of England, and such a writ was issued to Canada.

In the argument of this case the report runs :- "So in Lees' case" (supra), "though a writ of error was refused because the Attorney-General's fiat had not been obtained, a writ of habeas corpus was afterwards granted to the Island of St. Helena, where there is a separate Judicature."

Crompton, J., said, "I granted that writ as ancillary to a writ of error, which the Crown had afterwards allowed to issue" (see also Cran v. Ramsay, Vaughan, 290).

However, in R. v. Bertrand (L. R. 1 P. C. 520), a petition to the Queen in Council was resorted to in circumstances which might have been ground for a writ of error (but this is not clear from the report, as the irregularity is not stated to have been apparent upon the record); and a like course was followed in R. v. Murphy (L. R. 2 P. C. 535), in which case, again, it is far from clear that error would lie.

In Ex parte Carew (1897, A. C. 719), proceedings were by way of petition in respect of a defect in the record, which could have been made the subject of a writ of error.

In short, it seems clear that error does lie to a Colonial Court, but a possible difficulty in the way of its issue would be the obtaining of the Attorney-General's fiat. However, it is indubitable that in a proper case this would be given.

RULE 310.-In order to obtain a writ of error the fiat of the Attorney-General must first be obtained.

C. O. R. 1886, 184.

"The mode of obtaining this writ is by laying before the Attorney-General a copy of the judgment (if it is to be had), with counsel's certificate that there is an error upon the record, and an affidavit of the error in fact, if there be any such."

RULE 311.-The granting of the fiat is within the absolute discretion of the Attorney-General, and if he has refused to grant it the Court will not interfere.

R. v. Newton, 24 L. J. Q. B. 246; 4 E. & B. 869; 1 Jur. 591;