CHAPTER V.

TRIAL, JUDGMENT, AND PUNISHMENT.

SECT. 1. Arraignment, p. 181.

2. Summoning, impanelling, swearing, and charging the jury, p. 191. 3. Proceedings at trial, p. 207.

4. Verdict, p. 214.

5. Proceedings between verdict and judgment, p. 225.

6. Judgment and punishments, p. 229.

SECT. 1.

ARRAIGNMENT.

THE arraignment of prisoners, against whom true bills for indictable offences have been found by the grand jury, consists of three parts, first, calling the prisoner to the bar by name; secondly, reading the indictment to him; thirdly, asking him whether he be guilty or not of the offence charged. It was formerly the practice to require the prisoner to hold up his hand, the more completely to identify him as the person named in the indictment, but the ceremony, which was never essentially necessary (R. v. Radcliffe, 1 W. Bl. 3), is now in most courts disused; and the ancient form of asking him how he will be tried is also obsolete. As to the necessity of the presence of the accused, see post, p. 186. The prisoner is to be brought to the bar without irons, shackles, or other restraint, unless there be danger of escape; and "ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no other terror or uneasiness than what proceeds from a sense of his guilt and the misfortune of his present circumstances." 2 Hawk. c. 28, s. 1; Kel. (J.) 10. In R. v. Layer, 16 St. Tr. 93, 96, a distinction was taken between the time of arraignment and the time of trial, and the prisoner was obliged to stand at the bar in irons during the arraignment; but the ruling in that case is at variance with the authority of all the expositors of the common law. Britton, c. 5, fo. 14, says, "If felons come in judgment to answer, etc., they shall be out of irons and all manner of bonds, so that their pain shall not take away any manner of reason, nor constrain them to answer but at their free will." The Mirror, bk. 5, Ch. 1, 54 (Seld. Soc. Publ., vol. vii. p. 160) says, "It is an abuse that a prisoner should be loaded with irons or put in pain before he is attainted for felony." But it is possible that this passage relates to peine forte et dure. See also 3 Co. Inst. 34, where Coke cites Bracton, 1. 3, f. 137; Staundf. 78; and a decision of the judges, 8 Edw. 2; also Hale's Sum. 212. But where there is reason to believe that the prisoner will make an attempt to escape, or will be guilty of violence, the gaoler may, by order of the judge, bring up the prisoner for arraignment in irons, and he may be kept ironed during the trial, and even when giving evidence on his own

behalf. R. v. Brazier, Hants Summer Assizes [1899] Wright, J. The prisoner is entitled to a copy of his indictment in the case of treason (see 1 St. Tr., N. S. 673, and post, tit. "Treason "), but not in treason felony, R. v. Mitchel, 6 St. Tr., N. S. 599, 616, nor in any other felony. 1 Chit. Cr. L. 414: R. v. Holland, 4 T. R. 691, 693: R. v. Dowling, 7 St. Tr., N. S. 381; 3 Cox, 509. In R. v. Martin, 6 St. Tr., N. S. 925, 958, a copy of au indictment for treason felony was granted ex gratiâ. The prisoner is in strictness entitled to have the indictment read over slowly once before arraignment, and it is the practice after arraignment to let his counsel see the indictment and the names of the witnesses indorsed on it, or to have a copy. 1 Chit. Cr. L. 414. The same practice applies to misdemeanors (R. v. Mitchel, 1 St. Tr., N. S. at 616: R. v. Newton, 1 C. & K. 469), except (1) cases within 60 G. 3 & 1 G. 4, c. 4, ss. 8, 10, and the Cr. Off. Rules, 1886, r. 138. See O'Connell v. R., 5 St. Tr., N. S. 1, 21, 28, and (2) prosecutions for offences against the excise, 7 & 8 G. 4, c. 53, s. 42, in which cases the defendant is entitled to a copy of his indictment. If the prisoner be charged upon an indictment and also upon an inquisition for the same offence, he may be arraigned at the same time upon both; 1 East, P. C. 371; and where several defendants are charged in the same indictment, they ought all to be arraigned at the same time although their trials may be several. Kel. (J.) 9. As soon as the indictment has been read to the prisoner, or its substance stated to him (which is now the usual practice), the officer of the court demands of him-How say you, are you guilty or not guilty? The course of proceeding where the prisoner pleads to the jurisdiction, demurs, or raises the pleas in abatement, and the pleas of autrefois convict, or acquit, and attaint and of pardon have already been dealt with (ante, pp. 169-178). On the prisoner pleading not guilty under the old practice, he was asked how he would be tried, and made the answer "By God and my country." This form is now rarely, if ever, used. If the prisoner pleads guilty, and it appears to the satisfaction of the judge that he rightly comprehends the effect of his plea, his confession is recorded, and sentence is forthwith passed, or he is removed from the bar to be again brought up for judgment. 1 Chit. Cr. L. 415.

Arraignment of peers.]-A person entitled to the privilege of peerage if indicted for misdemeanor is tried in the same manner as a commoner. 3 Co. Inst. 30; 2 Hawk. c. 44, s. 13. But persons entitled to such privilege cannot be tried in pairs for treason, felony, or misprision of either offence, and it would seem that there is no power to waive the privilege. Lord Graves' case, 4 St. Tr., N. S. 609, n.; 310 Hansard, 246. When on arraignment the privilege is claimed or its existence is established, the indictment is removed by certiorari to the House of Lords, and if parliament be sitting is tried before that House as the court of the King in parliament; R. v. Earl of Cardigan, 4 St. Tr., N. S. 601; and if parliament be not sitting is tried in the court of the Lord High Steward, which is constituted by special commission. R. v. Earl Russell [1902] App. Cas. 446; and see 4 St. Tr., N. S. 666. At such trial the pleading and punishment are the same as in the case of any other accused person. 4 & 5 Vict. c. 22. The trial of peers for offences committed in Scotland is regulated by 6 G. 4, c. 66. The privilege of peerage belongs to every peer except an Irish peer who is a member of the House of Commons, and to peeresses in their own right, to the wives of peers, and to the widows of peers who are not married to commoners; 20 Hen. 6, c. 9; 7 & 8 W. 3, c. 3, s. 10; but does not belong to archbishops or other bishops, who are lords of parliament but not peers. Standing orders, H. L.

Prisoner unfit to plead.

183

Prisoner standing mute.]-If the prisoner, when called upon, stands mute of malice, or will not answer directly, the court may order the proper officer to enter a plea of not guilty; 7 & 8 G. 4, c. 28, s. 2: see ante, p. 179. At common law the consequences of standing obstinately muta in cases of felony, were forfeiture of goods, and peine forte et dure; Hale's Sum. 227; and by 12 G. 3, c. 20, judgment as on a plea of guilty. See R. v. Steel, 1 Leach, 451. Where the defendant stands mute it would seem that the court cannot determine whether in fact he is mute of malice or by the visitation of God, R. v. Israel, 2 Cox, 263: R. v. Schleter, 10 Cox, 409; but must direct a jury to be forthwith impanelled and sworn, to try whether the prisoner be mute of malice or ex visitatione Dei, and such jury may consist of any twelve men who may happen to be present. Counsel may call witnesses for the defendant on the trial of the issue and may address the jury. R. v. Roberts, Carr. C. L. 57. The form of the oath to the jury in such a case may be as follows:-" You shall well and truly try whether A. B., the prisoner at the bar, who stands charged with felony, is mute of malice or by the visitation of God, and a true verdict give according See Cro. Circ. Comp. 542 (9th ed.). to the evidence; so help you God."

A person is mute by the visitation of God who is deaf and dumb; R. v. Jones, 1 Leach, 102: R. v. Pritchard, 7 C. & P. 303; or so deaf that he cannot hear the indictment when read. R. v. Halton, Ry. & M. 78: and see 1 Russ. Cr. (6th ed.), 119. The fact of being mute of visitation of God is no bar to an arraignment or trial if the mute is sane and intelligence can be conveyed to him by signs or symbols. But before proceeding with the trial it is necessary to ascertain whether he can plead to the indictment or understand the proceedings. R. v. Jones, ubi supra.

Prisoner unfit to plead or take his trial.]-The Criminal Lunatics Act, 1884 (47 & 48 Vict. c. 64), empowers a secretary of state to remove to a lunatic asylum all prisoners committed for trial who are certified in manner provided by the Act to be insane, and to order their detention as criminal lunatics until their remittal to prison or discharge. This power gets rid of the difficulty found in R. v. Dwerryhouse, 2 Cox, 446, where a prisoner was obviously unfit to be arraigned. If the secretary of state acts under the statute the hand of the court is stayed: ex parte Collins [1899] 34 L. J. Newsp. 132. The Criminal Lunatics Act, 1800 (39 & 40 G. 3, c. 94, passed in consequence of Hadfield's Case, 27 St. Tr. 1281, provides (s. 2) that "if any person indicted for any offence (R. v. Little, R. & R. 430), shall be insane, and shall upon arraignment be found so to be by a jury lawfully impanelled for that purpose," that is, by a jury returned by the sheriff instanter in the nature of an inquest of office "so that such person cannot be tried upon such indictment, it shall be lawful for the court before whom any such person shall be brought to be arraigned as aforesaid, to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until his Majesty's pleasure shall be known." Similar provisions are made by the same section as to persons brought up to be discharged for want of prosecution who appear to be insane. The enactment does not apply to grand juries. R. v. Hodges, 8 C. & P., 195. Persons detained after verdict under the section are dealt with as criminal lunatics. The form of oath to be administered to the jury impanelled to try whether a prisoner be non compos or not, is as follows:-" You shall diligently inquire and true presentment make, for and on behalf of our sovereign lord the King, whether A. B., the defendant who stands indicted for a misdemeanor, be insane or not, and a true verdict give accordingly to the best of your understanding ;

so help you God." The proper time to raise the question of the prisoner's fitness to be tried is before he pleads. R. v. Southey, 4 F. & F. 864. The issue to be tried is the state of the prisoner's mind at the date of arraignment, not at any prior time. R. v. Keary, 14 Cox, 143: 4 Bl. Com. 24. As to the onus of proof on the trial of the issue, see R. v. Davies, 6 Cox, 326: 3 C. & K. 328; R. v. Turton, 6 Cox, 385. In R. v. Goode, 7 A. & E. 536, where the prisoner was tried at bar in the Queen's Bench for using seditious language against Queen Victoria in her presence, it was held that the jury might form their own opinion as to the state of the prisoner's mind when arraigned, from his demeanor during the inquest, without any evidence being given on the subject: but under ordinary circumstances it is usual for the judges to require some evidence as to the prisoner's state of mind. And in R. v. Pritchard, 7 C. & P. 303, where a prisoner arraigned on an indictment for felony, appeared to be deaf, dumb, and also of non-sane mind, Alderson, B., put three distinct issues to the jury, directing the jury to be sworn separately on each: 1. Whether the prisoner was mute of malice or by the visitation of God; 2. Whether he was able to plead; 3. Whether he was sane or not: and on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror he might wish to object to, and to understand the details of the evidence (supra, p. 183). See also R. v. Whitfield, 3 C. & K. 121. The directions in R. v. Pritchard were approved in R. v. Berry, 1 Q. B. D. 447; 45 L. J. (M. C.) 123; 13 Cox, 189. In that case a deaf mute being arraigned for felony, the jury who had been impanelled to try the case were sworn to try whether the prisoner stood mute of malice or by the visitation of God. The jury found that he was mute by the visitation of God. The judge then ordered that a plea of not guilty should be entered, and the trial proceeded. The better course in such cases would seem to be to proceed as in R. v. Pritchard, ubi supra, and not to enter a verdict of not guilty at once. The jury found the prisoner guilty of the felony charged against him, but also found that he was incapable of understanding, and did not understand, the proceedings at the trial. Upon this finding it was held that the prisoner could not be convicted, but must be detained as a nonsane person during the Queen's pleasure. In R. v. Wheeler, Central Criminal Court, May 12, 1852, where the prisoner was indicted for the murder of his mother, and on his arraignment said he was "not guilty," Platt, B., on the motion of the prisoner's counsel, directed the jury to be sworn to inquire whether the prisoner was in a fit state of mind to plead to the indictment, and it appearing from the evidence that the prisoner seemed to understand the nature of the crime for which he was indicted, but that he seemed unable to understand the distinction between a plea of "guilty" and of "not guilty," the jury, at the suggestion of the learned judge, returned a verdict that the prisoner was of unsound mind and incompetent to plead. In R. v. Harris, 61 J. P. 792, the prisoner was unable to read or write, and owing to an unhealed wound in his throat could not speak. A jury was impanelled to try whether he was sane and able to plead, who found that he was both, but that at present he was unable to give instructions for his defence, and that his condition was due to his own act, attempted suicide. He was then called on to plead; pleaded not guilty, and his trial was adjourned. Cf. R. v. Whitfield, 3 C. & K. 121 As to feigned madness, see R. v. Davies, 6 Cox, 326, Williams, J.; R. v. Berry [1897] 104 L. T. Jan. 110, Wills, J. Where the jury are sworn in the nature of an inquest of office, to inquire whether or not a prisoner is sufficiently sane to plead to the indictment, the court

directs the finding to be recorded; and the following is the form of the record of the finding :

by

MIDDLESEX :- The King against J. G.-The defendant being brought here into court, in the custody of the keeper of his Majesty's prison of · virtue of a writ of habeas corpus, it is ordered that the said writ and the return made thereto be filed; and the said defendant is now here in court arraigned upon the indictment found against him in this court for certain misdemeanors, in speaking and publishing certain scandalous and seditious words of and concerning our sovereign lord the King, and is asked by the court here whether he be guilty of the premises charged upon him by the said indictment or not. Whereupon the said defendant doth refuse to answer to the said indictment; and it appearing to this court that the said defendant may be insane, so that he cannot be tried upon the said indictment: therefore, on the prayer of Sir Robert Finlay, knight, his Majesty's attorney-general, it is ordered that a jury in this behalf do immediately come here into court, to try and inquire for and on behalf of our sovereign lord the King, whether the siid defendant be insane or not. And immediately thereupon, a jury being impanelled and returned for that purpose by the sheriff of the said county of Middlesex, come here into court, and being elected, tried, and sworn to speak the truth touching and concerning the premises aforesaid, say upon their oath that the said defendant is insane. And the said attorney-general, for and on behalf of our said sovereign lord the King, prays the said court here that the finding of the said jury may be recorded. It is thereupon ordered by the said court here, that the said finding of the said jury be recorded, and that the said defendant be kept in strict custody in the said gaol until his Majesty's pleasure in the premises shall be known. And the said defendant is now here in court re-committed to the custody of the keeper of the said gaol, to be by him kept in strict custody until his Majesty's pleasure shall be known. On the motion of the attorney-general: By the court.

As to the proceedings on the trial of a person alleged to have been insane when the offence charged was committed, see post, p. 221.

Arraignment for subsequent offence.]-The mode of arraigning prisoners, on an indictment containing a charge, under 7 & 8 G. 4, c. 28, s. 11, of a previous conviction for felony, was first to arraign the prisoner on the whole indictment, and afterwards to give him in charge to the jury on the subsequent felony only. R. v. Key, 2 Den. 347; 21 L. J. (M. C.) 35; R. V. Shuttleworth, 2 Den. 351; 21 L. J. (M. C.) 36. This procedure was not altered by 14 & 15 Vict. c. 19, s. 9 (rep.). S. 116 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), provides that the mode of arraigning a defendant on an indictment for an offence punishable under that Act committed after a previous conviction is, in the first instance, to arraign him upon so much only of the indictment as charges the subsequent offence, and, if he pleads not guilty or the court orders a plea of not guilty to be entered, to charge the jury in the first instance to inquire only concerning the subsequent offence. A similar course is to be pursued where the prisoner is indicted for an offence against the Coinage Offences Act, 1861 (24 & 25 Vict. c. 99), after a previous conviction (s. 37). [See post, Bk. II., Part V] And s. 9 of the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), alters the practice adopted under 7 & 8 G. 4, c. 28, s. 11, and provides that the rules contained in s. 116 of 24 & 25 Vict. c. 96, in relation to the form of and the proceedings upon an indictment for any offence punishable under that act committed after previous conviction, shall, with the necessary variations, apply to any indictment for committing a "crime" as defined by s. 20 of 34 & 35 Vict. c. 112 (viz., any felony, or the offence of uttering