general verdict, instead of finding special facts, with a view to raise a question of law. Per Lord Abinger, C. B., Allday's case, 8 C. & P. 136.(1)

Judgment.] The 11 Geo. 4, and 1 Wm. 4, c. 70, s. 9, (the 1 & 2 Wm. 4, c. 31, s. 4, Irish,) enacts, "that upon all trials for felonies or misdemeanors, upon any record in the court of King's Bench, judgment may be pronounced during the sittings or assizes by the judge before whom the verdict shall be taken, as well upon the person who shall have suffered judgment by default or confession upon the same record, as upon those who shall be tried and convicted, whether such persons be present or not in court, excepting only where the prosecution shall be by information filed by leave of the court of King's Bench, or such cases of information filed by his majesty's attorney-general, wherein the attorney-general shall pray that the judgment may be postponed; and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterwards entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless the court shall, within six days after the commencement of the ensuing term, grant a rule to show cause why a new trial should not be had, or the judgment amended; and it shall be lawful for the judge before whom the trial shall be had, either to issue an immediate order or warrant for committing the defendant in execution, or to respite the *execution of the judgment, [*244] upon such terms as he shall think fit, until the sixth day of the ensuing term; and in case imprisonment shall be part of the sentence, to order the period of imprisonment to commence on the day on which the party shall be actually taken to, and confined in prison."

Where judgment on a record of the Q. B. is pronounced at the assizes, under the above section, the court on motion under that clause, may, if they think fit, amend the judgment by ordering it to be arrested. Reg. v. Nott, 4 Q. B. 768.°

A general judgment for the crown on an indictment containing several counts, one of which is bad, and where the punishment is not fixed by law, cannot be supported. A good finding on a bad count, and a bad finding on a good count, stand on the same footing, both being nullities. And where a count in an indictment contains only one charge against several defendants, the jury cannot find any one of the defendants guilty of more than one charge. O'Connell v. Reg. 11 C. & F. 155. See also the same case as to the insufficiency of a general judgment against a defendant for "his offences aforesaid," on an indictment in which some of the counts are bad, and where on some of the good counts there are bad findings.

An offender, upon whom sentence of death has been passed, ought not, while under that sentence, to be brought up to receive judgment for another felony, although he was under that sentence when he was tried for the other felony, and did not plead his prior attainder. Anon. Russ. & Ry. 268.d

Where the defendant had been convicted of a misdemeanor in the Queen's Bench, the prosecutor upon the motion for judgment may produce affidavits to be read in aggravation of the offence, and the defendant may also produce affidavits to be read in mitigation. Affidavits in aggravation are not allowed in felonies, although the record has been removed into the court of Queen's Bench by certiorari. R. v. Ellis, 6 B. & C. 145; 3 Burn's Justice, last ed. 933. Where a prisoner pleaded guilty

(1) The idea that in criminal cases the jury are the judges of the law as well as of the facts, is erroneous. Carpenter v. The People, S. Barbour, 603.

• Id. xlv. 768.

b Eng. C. L. Reps. xxxiv. 327.

1 Eng. C. C. 268.

Eng. C. L. Reps. vol. xiii. 123.

at the central criminal court to a misdemeanor, and affidavits were filed, both in mitigation and aggravation, the judges refused to hear the speeches of counsel on either side, but formed their judgment of the case by reading the affidavits. Reg. v. B. Gregory, 1 C. & K. 228. See also the same case as to removing from the files of the court affidavits in mitigation containing scandalous and irrelevant matter, such being a contempt of court: and also as to allowing the opposite party to deny by counter affidavits, matter relevant and scandalous in the affidavits in mitigation which cannot be removed from the files.

Where a defendant, having pleaded guilty to an indictment, is brought up for judgment, the counsel for the crown is to be heard before the counsel for the defendant, and the affidavits in aggravation are to be read before the affidavits in mitigation. Dignam's case, 7 A. & E. 593. Contra, where a verdict of guilty has been taken though by consent, and without evidence. Caistor's case, ib. 594,(n.) Semble, that the rule is not to be varied where several defendants are jointly indicted, and some suffer judgment by default, and others are convicted on verdict. And in such a case, where there was no affidavit in aggravation, but affidavits were offered in mitigation, the court heard the counsel for the defendants first. Sutton's case, ib.

[*245] *Where an erroneous judgment is given by an inferior court on a valid indictment, (as by passing sentence of transportation in a case punishable only with death) and the prisoners bring error, the court of King's Bench can neither pass the proper sentence, nor send the record back to the court below, in order that they may do so, but the judgment must be reversed, and the prisoners discharged. Bourne's case, 7 A. & E. 58.b

By the 8 & 9 Vict. c. 68, (E. & I.) execution on judgments for misdemeanors may be stayed, or suspended by writ of error and bail thereon.

Recording judgment of death.] By the 4 Geo. 4, c. 48, (E. & I.) s. 1, "whenever any person shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the court before which such offender shall be convicted, shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may be lawful for such court, if it shall think fit so to do, to direct the proper officer then being present in court, to require and ask, whereupon such officer shall require and ask if such offender hath or knoweth any thing to say why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall, and may, and is hereby authorized to abstain from pronouncing judgment of death upon such offender; and instead of pronouncing such judgment, to order the same to be entered on record, and thereupon such proper officer as aforesaid shall, and may, and is hereby authorized to enter judgment of death on record against such offender, in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender by the court before which such offender shall have been convicted."

By the 6 & 7 Wm. 4, c. 30, (E. & I.) sentence of death may be pronounced after convictions for murder in the same manner, and the judge shall have the same power in all respects, as after convictions for other capital offences.

By the recent act for the better ordering of prisons, (2 & 3 Vict. c. 56, s. 17,) f Id. xlvii. 228. Eng. Com. Law Reps. xxxiv. 36.

Id. xxxiv. 166.

offenders against whom sentence of death is recorded, may be kept to hard labour while they remain in the gaol or house of correction.

New trial.] Where the defendant has been convicted on an indictment for felony there can be no new trial; but after a conviction for a misdemeanor a new trial may be granted at the instance of the defendant where the justice of the case requires it; Mawbey's case, 6 T. R. 638, Tidd. 942, 3; though inferior jurisdictions cannot grant a new trial upon the merits but only for an irregularity. (See the cases collected on this point in note (b) to R. v. Inhab. of Oxford, 13 East, 416.) Where several defendants are tried at the same time for a misdemeanor, and some are acquitted and others convicted, the court may grant a new trial as to those convicted, if they think the conviction improper. Mawbey's case, 6 T. R. 619. And it is a rule that all the *defendants convicted upon an indictment for a misde- [ *246] meanor must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. Teal's case, 11 East, 307; Askew's case, 3 M. & S. 9.

No new trial can be had when the defendant is acquitted, although the acquittal was founded on the misdirection of the judge; Cohen & Jacob's case, 1 Stark. N. P. 516; Sutton's case, 6 B. & Ad. 52 or where a verdict is found for a defendant on a plea of autrefois acquit, although that raises a collateral issue which may have been found in favor of the defendant on insufficient evidence. Lea's case, 2 Moo. C. C. R. 9; 7 C. & P. 836, S. C.; 2 Russ. by Grea. 726.

Case reserved for the opinion of the judges.] It has been already mentioned that there can be no new trial in a case for felony, (ante, p. 245,) but where any objection is taken on the part of the prisoner during the course of the trial which the judge considers well founded, it is usual to reserve the point for the consideration of the judges. They will not however entertain any points which are objections on the face of the record, even though they are mentioned in the case reserved, but will leave the prisoner to bring a writ of error. Overton's case, Carr. & M. 655.1

Where on a case reserved the prisoner has no counsel, the judges will not hear the counsel for the crown. Wallace's case, Carr. & M. 200.m

Costs, expenses, and rewards.] As to the costs and expenses of the prosecutor and his witnesses in cases of felony, see the 7 Geo. 4, c. 64, s. 22, ante, p. 120. Where a prisoner did not reach the assize town until after the grand jury were discharged, Hullock, B., after referring to the above statute, ordered the witnesses their expenses. Anon. 1 Lewin C. C. 128. Where, in consequence of the absence of the prosecutor, the trial was put off, and the prisoner applied for costs, Littledale, J., refused the application, saying, that costs were never allowed to a prisoner charged with felony. Cow's case, 1 Lewin C. C. 131; 4 C. & P. 251. S. C. Where the prisoner, in a case of felony, was at large and did not appear, the expenses of the prosecutor and witness, who had been bound over to appear by the coroner, were allowed. Flanning's case, 1 Lewin C. C. 133; Anon. Id. 134. Upon an indictment for felony, removed by certiorari into the King's Bench, and tried at nisi prius, no costs can be allowed by this statute either there or by the King's Bench. R. v. Treasurer of Exeter, 5 M. & R. 167.

Where the prisoner had been apprehended under a bench warrant, and neither the prosecutor nor any of the witnesses were under recognizance to prosecute or Eng. Com. Law Reps. ii. 491. J Id. xxvii. 31. * Id. xxxii. 761. 1 Id. xli. 355.

m Id. xli. 113.

a Id. xix. 369.

to give evidence, and only one of the latter had been subpoenaed; Parke, B., at first thought he could only grant the costs of the witnesses who had been subpoenaed; but on the following day his lordship said, that on comparing the words of the 7th Geo. 4, c. 64, s. 22, relating to felonies with those of the subsequent section relating to misdemeanors, (s. 23,) it appeared to him that the court had authority in prosecutions for felony to award the prosecutor his costs, even although he was not under any recognizance; and his lordship accordingly granted the costs of the prosecution generally, including those of the witnesses. Butterwick's case, 2 Moo. & R. 196.

[*247] *The usual expenses of prosecution may be allowed by the proper officers of the court, but the fees attendant on the examination, and the allowance to the prosecutor and his witnesses, on attending before the magistrate, can only be allowed on the production of the certificate mentioned in the act; and the court has no power to allow the expenses of witnesses attending before the coroner previous to the indictment. Rees's case, 5 C. & P. 302; Taylor's case, 5 C. & P. 301.P

It seems that in general no costs will be allowed before the trial has taken place; as when it is postponed. Hunter's case, 3 C. & P. 591.a

But in a case of murder, which was postponed until the following assizes, on the application of the prisoner, and in which the costs of the prosecution were very heavy, Alderson, B., made an order for their payment. Bolam's case, Newc. Spr. Ass. 1839, MS.

The prosecutor and his witnesses being bound over, attended at the assizes and preferred an indictment, which was found. The prisoner, who had been discharged by mistake, had absconded. Taunton, J., thought that under the authority of the word "prosecute" in the statute, he might order the expenses, but that if no bill had been preferred he should have had no authority. Robey's case, 5 C. & P. 552.

Under the words "in otherwise carrying on such prosecution" contained in the 7 Geo. 4, c. 64, s. 22, ante, p. 120, Lord Denman, C. J., allowed a small township the extra expenses which had been incurred in getting up the prosecution; the order was drawn up for all the expenses incurred, except the attendance of the witnesses before the coroner. Lewen's case, 2 Lew. C. C. 161.

As to the expenses in cases of misdemeanor, see 7 Geo. 4, c. 64, s. 23, and 7 Wm. 4, and 1 Vict. c. 44, ante, p. 121.

In misdemeanors, the expenses of witnesses who have not been subpoenaed, cannot be allowed; Dunn's case, 1 C. & K. 738;s but they may where the witnesses have been subpoenaed; R. v. Jeyes, 3 A. & E. 416. It is doubtful, however, whether the costs of a prosecutor, not bound over to prosecute, can be granted. Ib. But if his name be included in a subpoena they may. R. v. Sheering, 7 C. & P. 440."

An indictment for an indecent exposure, &c., with intent to provoke J. S. to commit an unnatural crime, removed by the defendants by certiorari, is not within s. 23, so as to enable the court before whom it is tried to grant the costs of the prosecution. Anon. 3 N. & P. 627.

Where an indictment was removed from the sessions by certiorari, at the instance of the prosecutor, and tried at nisi prius, and the prosecutor, who was not under recognizance, caused himself and his witnesses to be subpoenaed and paid their expenses, it was held that neither the court at nisi prius nor the King's Eng. C. L. Reps. xxiv. 331. Id. xxiv. 452. • Id. xlvii. 738. t Id. xxx. 130. " Id. xxxii. 577.

p Id. a Id. xiv. 469.

Bench could give costs under the 7 Geo. 4, c. 64, s. 23. Johnson's case, 1 Moo. &C. 173; Richard's case, 8 B. & C. 420. In the case of misdemeanors, not within the act, if the defendant submits to a verdict on an understanding that he shall not be brought up for judgment, the prosecutor is not, without a special agreement, entitled to costs. Rawson's case, 2 B. & O. 598.*

The costs with regard to indictments for nuisances removed by certiorari, are regulated by the 3 W. & M. c. 11, s. 3, which enacts, that if a defendant prosecuting a writ of certiorari, (as mentioned in the act) be convicted, the court of King's Bench shall give reasonable costs to the prosecutor, if he be a party grieved, or be a justice, &c., or other civil officer, who shall prosecute for any fact that concerned *them as officers to prosecute or present. Persons dwelling [ *248 ] near a steam-engine, which is a nuisance, have been held to be parties grieved within this act. Dewsnap's case, 16 East, 194. The costs in cases of nuisances arising from the furnaces of steam-engines, are governed by the 1 & 2 Geo. 4, c. 41.

Mode of payment by the treasurer of the county, &c.] By the 7 Geo. 4, c. 64, 8. 24, "every order for payment to any prosecutor, or other persons as aforesaid, shall be forthwith made out and delivered by the proper officer of the court unto such prosecutor, or other person, upon being paid for the same the sum of one shilling for the prosecutor, and sixpence for each other person, and no more, and except in the cases therein after provided for, shall be made upon the treasurer of the county, riding, or division in which the offence shall have been committed, or shall be supposed to have been committed, who is thereby authorized and required, upon the sight of every such order, forthwith to pay to the person named therein, or to any one duly authorized to receive the same on his or her behalf, the money in such order mentioned, and shall be allowed the same in his accounts."

By the 7 Wm. 4, and 1 Vict. c. 44, s. 2, orders for payment of money for the costs of prosecutions for concealing the birth of children are to be made out in the same way as orders for the payment of costs in cases of felony. See the first section of the act, ante, p. 121.

With respect to places that do not contribute to any county rate.] The 7 Geo. 4, c. 64, s. 25, after reciting that "whereas felonies, and such misdemeanors as are therein before enumerated, may be committed in liberties, franchises, cities, towns, and places, which do not contribute to the payment of any county rate, some of which raise a rate in the nature of a county rate, and others have neither any such rate, or any fund applicable to similar purposes, and it is just that such liberties, franchises, cities, towns, and places should be charged with all costs, expenses, and compensations, ordered by virtue of this act, in respect of felonies, and such misdemeanors, committed therein respectively," enacts" that all sums directed to be paid by virtue of this act in respect of felonies, and of such misdemeanors as aforesaid, committed, or supposed to have been committed in such liberties, franchises, cities, towns, and places, shall be paid out of the rate in the nature of a county rate, or out of any fund applicable to similar purposes, where there is such a rate or fund, by the treasurer or other officer having the collection or disbursement of such rate or fund; and where there is no such rate or fund in such liberties, franchises, cities, towns, and parishes, shall be paid out of the rate or fund for the relief of the poor of the parish, township, district, or precinct therein, where the offence was committed or supposed to have been committed, by the overseers or other officers having the collection or disbursement of such last mentioned rate or fund, and the 2 Eng. C. C. 173.

Eng. C. L. Reps. xv. 253.

* Id. vi.