where a previous verdict or plea of guilty has been entered under the Criminal Law Consolidation Acts of 1861, even if not followed by a judgment. R. v. Blaby [1894] 2 Q. B. 170; 63 L. J. (M. C.) 133; 18 Cox, 5. As to what constitutes a conviction at common law, see ante, p. 230. (a) As to cross-examining prisoners with reference to previous convictions, see the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), ante, p. 392, et seq.

OFFENCES BY HABITUAL Drunkards.

Statutes.

42 & 43 Vict. c. 19 (Inebriates Act, 1879), s. 3-Definition of habitual drunkard.]— "Habitual drunkard" means a person who not being amenable to any jurisdiction in lunacy is, notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself or herself or to others, or incapable of managing himself or herself and his or her affairs. [As to who are amenable to jurisdiction in lunacy, see 53 & 54 Vict. c. 5, s. Ì16; Wood-Renton on Lunacy, 392, 954.]

4 Edw. 7, c. 15 (Prevention of Cruelty to Children Act, 1904), s. 11.—Detention of habitual drunkards convicted of offences as to children.]—Where it appears to the court by or before which any person is convicted of the offence of cruelty within the meaning of this Act (s. 1, ante, p. 877), or of any of the offences mentioned in the first schedule to this Act (ante, p. 887), that that person is a parent of the child in respect of whom the

(a) Considerable difficulty for some time existed as to the course to be pursued under s. 11 of the Criminal Law Act, 1828 (7 & 8 G. 4, c. 28, ante, p. 1311). In strictness it was necessary to arraign the prisoner on the whole indictment, which had the effect of prejudicing the jurors by informing them of the previous convictions charged therein, though in the cases of R. v. M'Evin, Bell, 20: R. v. Hilton, 28 L. J. (M. C.) 28, it seems to have been considered that on the request of the prisoner's counsel the prisoner might be first arraigned and tried for the subsequent felony, and afterwards be arraigned and tried on the charge of previous conviction. Under 6 & 7 W. 4, c. 111 (ante, p. 1312), the jury must have been charged, and the evidence must have proceeded as if the indictment did not contain the averment of a previous conviction; and this allegation must not have been opened to the jury, or their verdict taken upon it, until after they had found the prisoner guilty of the subsequent felony, and then the prosecutor must have proved the previous conviction and identity of the defendant, and upon this likewise the jury must have delivered their verdict. R. v. Key, 2 Den. 347; 21 L. J. (M. C.) 35: R. v. Shuttleworth, 2 Den. 351; 21 L. J. (M. C.) 36. If, however, the defendant called witnesses to character (or if, by the cross-examination of the witnesses for the prosecution evidence to character was elicited, R. v. Gadbury, 8 C. & P. 676: R. v. Shrimpton, 2 Den. 319; 21 L. J. (M. C.) 37), the previous conviction might be proved in reply, and the compound question would, in that case, be left to the jury in the first instance.

67 W. 4, c. 111, did not effectually secure the object for which it was passed; since the jurors, if they were present at the arraignment of the prisoner, probably would obtain a knowledge of his previous conviction, of which it would be difficult for them to divest their minds, when they had to decide on his guilt or innocence as to the subsequent offence charged against him by the indictment. Sect. 116 (ante, p. 430) of the Larceny Act, 1861, was passed in order to remedy this defect in the law (see Greaves, Crim. Law Cons. Acts (2nd ed.), 199), and to regulate the form of indictment and the course of proceedings, "in any indictment for any offence punishable under that Act, and committed after a previous conviction or convictions for any felony, misdemeanor, or offence or offences, punishable upon summary conviction;" and by s. 37 (ante, p. 961) of the Coinage Offences Act, 1861, similar provision was made with respect to offences against the coin. In cases falling within these sections, the indictment must first charge the subsequent offence and

offence was committed, or is living with the parent of the child, and is a habitual drunkard within the meaning of the Inebriates Acts, 1879 (42 & 43 Vict. c. 19), and 1888 (51 & 52 Vict. c. 19), the court, in lieu of sentencing such person to imprisonment, may, if it thinks fit, make an order for his detention for any period named in the order, not exceeding twelve months, in a retreat under the said Acts, the licensee of which is willing to receive him, and the said order shall have the like effect, and copies thereof shall be sent to the local authority and secretary of state in like manner, as if it were an application duly made by such person and duly attested by two justices under the said Acts; and the court may order an officer of the court or constable to remove such person to the retreat, and on his reception the said Acts shall have effect as if he had been admitted in pursuance of an application so made and attested as aforesaid: Provided that

(a) an order for the detention of a person in a retreat shall not be made under this section unless that person, having had such notice as the court deems sufficient of the intention to allege habitual drunkenness, consents to the order being made; and

(b) if the wife or husband of such person, being present at the hearing of the charge, objects to the order being made, the court shall, before making the order, take into consideration any representation made to it by the wife or husband; and

(c) before making the order the court shall, to such extent as it may deem reasonably sufficient, be satisfied that provision will be made for defraying the expenses of such person during detention in a

retreat.

[This section is a re-enactment of 57 & 58 Vict. c. 41, s. 11.]

afterwards the previous conviction, and the prisoner (instead of being arraigned at once on the whole indictment, as was the practice in cases falling under 7 & 8 G. 4, c. 28, s. 11, and 6 & 7 W. 4, c. 111) is, in the first instance, arraigned upon so much only of the indictment as charges the subsequent offence, and it is not until he has been convicted of the subsequent offence, either by his plea of guilty or by verdict, that the fact of the indictment containing a charge of a previous conviction is divulged, unless, indeed, during the trial for the subsequent offence, the prisoner should give evidence of his good character (or should elicit such evidence by crossexamination of the witnesses for the prosecution, R. v. Gadbury, R. v. Shrimpton, supra), in which case the previous conviction may be proved in reply, and the compound question will, in that case, be left to the jury in the first instance. 24 & 25 Vict. c. 96, s. 116; c. 99, s. 37. Two learned writers upon criminal law, Mr. Welsby (see the 15th ed. of this work, pp. 831, 832), and Mr. Davis (see Greaves, Crim. Law Cons. Acts (2nd ed.), p. 203), were of opinion that 24 of 25 Vict. c. 96, s. 116, as to proceedings upon an indictment, applied to the proceedings on the trial of all indictments containing a charge of a previous conviction, on the ground that the words used in that section are the proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows," etc. Mr. Greaves, however, was of a contrary opinion, and maintained that 7 & 8 G. 4, c. 28, s. 11, and 6 & 7 W. 4, c. 111, continued to govern the proceedings in all cases of felony, committed after a previous conviction for felony, except larceny and coinage offences. See 2 Russ. Cr. by Greaves, 349 (4th ed.).

The controversy was settled by 34 & 35 Vict. c. 112, s. 9 (ante, p. 1316), which applies the rules contained in 24 & 25 Vict. c. 96, s. 116, in relation to the form of and the proceedings upon an indictment for any offence punishable under that Act committed after previous conviction, with the necessary variations, to any indictment for committing a "crime (as defined by s. 20, viz., any felony, or the offence of uttering false or counterfeit coin, or of possessing counterfeit gold or silver coin, or the offence of obtaining goods or money by false pretences, or the offence of conspiracy to defraud, or any misdemeanor under 24 & 25 Vict. c. 96, s. 58), after previous conviction for a "crime," whether the "crime" charged in such indictment or the "crime" to which such previous conviction relates be or be not punishable under the Larceny Act, 1861. See Faulkner v. R., ante, pp. 1315, 1316,

61 & 62 Vict. c. 60 (Inebriates Act, 1898), s. 1—(1) Power where a habitual drunkard is convicted on indictment for an offence to which drunkenness is a contributory cause, to order detention in an inebriate reformatory.]— Where a person is convicted on indictment of an offence punishable with imprisonment or penal servitude, if the court is satisfied from the evidence that the offence was committed under the influence of drink, or that drunkenness was a contributing cause of the offence, and the offender admits that he is, or is found by the jury to be, a habitual drunkard [ante, p. 1320], the court may, in addition to or in substitution for any other sentence, order that he be detained for a term not exceeding three years in any state inebriate reformatory, or in any certified inebriate reformatory the managers of which are willing to receive him.

(2) In any indictment under this section it shall be sufficient, after charging the offence, to state that the offender is a habitual drunkard. In the proceedings on the indictment the offender shall, in the first instance, be arraigned on so much only of the indictment as charges the said offence, and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless the offender admits that he is a habitual drunkard, be charged to inquire whether he is a habitual drunkard, and in that case it shall not be necessary to swear the jury again. Provided that, unless evidence that the offender is a habitual drunkard has been given before he is committed for trial, not less than seven days' notice shall be given to the proper officer of the court by which the offender is to be tried, and to the offender, that it is intended to charge habitual drunkenness in the indictment. [The use of the word "given mean that the notice need not be in writing. See R. v. Shurmer, 17 Q. B. D. 323; 55 L. J. (M. C.) 153 (ante, p. 374), where a distinction was drawn between the words "served upon" and "given to."]

seems to

Sect. 2-Power to detain in an inebriate reformatory a habitual drunkard four times convicted of drunkenness, etc.]—(1) Any person who commits any of the offences mentioned in the first schedule to this Act, and who within the twelve months preceding the date of the commission of the offence has been convicted summarily at least three times of any offences so mentioned, and who is a habitual drunkard, shall be liable on conviction on indictment, or if he consents to be dealt with summarily [see 42 & 43 Vict. c. 49, s. 12], on summary conviction, to be detained for a term not exceeding three years in any certified reformatory the managers of which are willing to receive him. [The consent of the defendant to be tried summarily under this section is necessary before a magistrate can make an order under s. 6, sub-s. 1, of the Licensing Act, 1902. Commissioner of Metropolitan Police v. Donovan [1903] 1 K. B. 895; 20 Cox, 435.]

(2) The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), shall apply to proceedings under this section as if the offence charged were specified in the second column of the first schedule to the Act [which relates to indictable offences by adults who consent to be summarily tried. Under this clause the offender must be informed of his right to be tried on indictment: see 42 & 43 Vict. c. 49, s. 17, and R. v. Cockshott [1898] 1 Q. B. 582; 67 L. J. (Q. B.) 467.]

Sect. 3-Power of secretary of state to establish state inebriate reformatories.]-Two such reformatories have been established, at Aylesbury Prison for women, and at Warwick Prison for men. See Parl. Pap. 1904 (C. 2285), p. 91.

Sect. 4-Power of secretary of state to make rules and regulations for the

management of state inebriate reformatories.]-Exercised as to England 21st June, 1901, 8th June, 1902, 29th Dec., 1903, and 29th April, 1904. See Stat. Rules and Orders Revised (ed. 1904), vol. 6, tit. " Inebriate," p. 51, and Stat. Rules and Orders, 1904, p. 261.

Sects. 5, 6, 21-Power of secretary of state to certify inebriate reformatories and to make regulations for certified inebriate reformatories.]-Up to the end of 1903 nine such institutions had been certified and others were being founded. See Parl. Pap. 1904 (c. 2285), pp. 5, 13. Model regulations have been framed for such institutions (Id., p. 51), but the regulations for each institution are separately certified, and are printed as statutory rules. Regulations have also been made (6th Dec., 1900) as to the absence of inmates on leave and (4th June, 1902) as to the transfer of inmates from one such reformatory to another and from such reformatories and state inebriate reformatories.

Sect. 8-Power of treasury to contribute to the expenses of persons detained in certified inebriate reformatories.]-Such contributions are made.

Sect. 9-Power of county or borough councils to contribute to or maintain certified inebriate reformatories.]-As to the extent to which this power has been exercised, see Parl. Pap. 1904 (C. 2285), pp. 8, 33.

Sect. 29-Short title and construction.]-This Act may be cited as the Inebriates Act, 1898, and shall be construed as one with the Inebriates Acts, 1879 and 1888.

62 & 63 Vict. c. 35 (Inebriates Act, 1899), s. 1-Costs.]-The expenses of any prosecution on indictment under s. 2 of the Inebriates Act, 1898, shall be payable as in cases of indictment for felony (see ante, p. 246), and where any case under that section is dealt with summarily, the expenses of the prosecution shall be payable in manner provided by s. 28 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49).

FIRST SCHEDULE TO 61 & 62 VICT. c. 60.

Being found drunk in a highway or other public place, whether a building or not, or on licensed premises.

Being guilty while drunk of riotous or disorderly behaviour in a highway or other public place, whether a building or not.

Being drunk while in charge, on any highway or other public place, of any carriage, horse, cattle, or steam-engine.

Being drunk while in possession of any loaded firearms.

Refusing or failing when drunk to quit licensed premises when requested.

Licensing Act, 1872 (35 & 36 Vict. c. 94),

s. 12.

Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 18.

FIRST SCHEDULE-continued.

Refusing or failing when drunk to quit any premises or place licensed under the Refreshment Houses Act, 1860, when requested.

Houses

Refreshment Act, 1860 (23 & 24 Vict. c. 2), s. 41.

Metropolitan

Police

Being found drunk in any street or public thoroughfare within the metropolitan police Act, 1839 (2 & 3 Vict. district, and being guilty while drunk of any c. 47), s. 58. riotous or indecent behaviour.

Being drunk in any street and being guilty of riotous or indecent behaviour therein.

Being intoxicated while driving a hackney carriage.

Being drunk during employment as a driver of a hackney carriage, or as a driver or conductor of a stage carriage in the metropolitan police district.

Being drunk and persisting, after being refused admission on that account, in attempting to enter a passenger steamer.

Being drunk on board a passenger steamer, and refusing to leave such steamer when requested.

[Being found drunk on any highway or other public place, whether a building or not, or on any licensed premises, while having the charge of a child under the age of seven years.

Being found in a state of intoxication and incapable of taking care of himself and not under the care or protection of some suitable | person, in any street, thoroughfare, or public place.

Being in any street drunk and incapable and not under the care and protection of some suitable person.

Being drunk while in charge in any street or other place of any carriage, horse, cattle, or steam-engine, or when in possession of any loaded firearms.

[Behaving while drunk in a riotous or disorderly manner in any street, road, or public place, or in any building to which the public have access.

Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 29.

Town Police Clauses Act, 1817 (10 & 11 Vict. c. 89), s. 61.

London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), s. 23.

Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 287.

Licensing Act, 1902 (2 Edw. 7, c. 28), s. 2, sub-s. 3 (E).]

Public Houses Acts Amendment (Scotland) Act, 1862 (25 & 26 Vict. c. 35), s. 23.

Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. c. 55), s. 381.

Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. c. 55), s. 380.

Inebriates Amendment (Scotland) Act, 1900 (63 & 64 Vict. c. 28), s. 2; but see s. 3.]