of certain aggravating facts or circumstances. 4. When they acquit the defendant on special grounds. 5. When they give a general verdict, but accompany it with a special case. The first three are, properly speaking, partial verdicts; and the last two, qualified verdicts.

As every count in the indictment contains a distinct charge, there is no doubt that the jury may acquit or convict on any of them, as they find the evidence applicable, 1 Ch. C. L. 637.

So also, on the same principle, they may find different defendants guilty on different counts; and the only limit to their authority in this respect is where a legal inconsistency would arise. Thus, where two are indicted for a conspiracy, both must be acquitted or both found guilty, unless the conspiracy be averred to have been entered into by the defendants with others. And where three are indicted for a riot and assault, one cannot be found guilty of the assault, and the others of the riot, except it be laid as committed with others, 2 Hawk. c. 47, s. 8. So also if A be indicted as principal, and B as an accessory; if A be acquitted, B cannot be found guilty, 1 Ch. C. L. 641.

In certain cases the jury are allowed to find the defendant guilty of a crime of the same nature and degree, although less atrocious than that laid in the indictment. Thus the party may be indicted for murder, and found guilty of manslaughter only; or he may be indicted for burglary or robbery, and found guilty of larceny, 2 Hale 302; or for an assault with intent to abuse and carnally know, and found guilty of the assault with intent to abuse only, R. v. Dawson, 3 Stark. 62; or for an assault with intent to commit a rape, and found guilty of a common assault, Lew. C. C. 16.

Upon an indictment for composing, printing, and publishing a libel, the party may be found guilty of the composing and publishing, and acquitted of the printing, R. v. Williams, 2 Campb. 646. If the indictment aver two intentions in the publication, the verdict may find only one, R. v. Evans, 3 Stark. 35. Where the indictment is for an offence against a statute, the defendant may be found guilty at common law, and the words contra formam statuti rejected as surplusage, 2 Hawk. c. 47, s. 168. Hence it would seem to follow that a party indicted for a malicious assault, under the 10 Geo. 4, c. 34, s. 29, might be found guilty of a common assault. The general rule is, that the party cannot be indicted for one offence and found guilty of another of a different degree, unless specially authorised by statute. See 10 Geo. 4, c. 34, s. 17. Thus, an indictment for felony will not sustain a finding of a misdemeanor, because he would, by that mode of indicting, lose the benefit of having a copy of the indictment, special jury, &c. R. v. Westbeer, 2 Str. 1137, 1 Ch. C. L. 639.

NOTE.

NOTE.

Effects of acquittal.

Motion in arrest of judgment.

If the defendant be found to have actually committed the offence charged, but to have done it while labouring under insanity, it is the duty of the jury then to find him not guilty, and to state specially that it is on account of his insanity, 1 & 2 Geo. 4. c. 33, s. 16, post 640, so that the court may be warranted in ordering his detainer.

The last sort of qualified verdict is one which, to the general verdict of guilty, has attached a special case, in which the facts and the evidence are set out, for the purpose of obtaining the opinion of the judges, Palmer v. Johnson, 2 Wils. 163; R. v. Marks, 3 East 164. This is pretty much the same as a special verdict, but with this difference, that the facts do not appear on the record, and the party thus loses the benefit of a writ of error. It has the advantage of being much less expensive, R. v. Allen, 15 East, 346. If the judges, upon considering the case, find that evidence has been improperly received, but that, even rejecting that, enough remains to sustain the conviction, they will not allow it to be disturbed, R. v. Ball, Russ. & Ry. 132; R. v. Treble, Russ. & Ry.

164.

If the party be acquitted upon the merits, upon a sufficient indictment, he is for ever discharged from the accusation, and may plead auterfois acquit, if again indicted for that offence. But if the acquittal have arisen from a defect in the proceedings, he may be detained in order to be indicted in such a way as to answer the purposes of justice, 1 Ch. C. L. 649; 2 Lea. C. C. 662. Or if he be a petty officer, seaman, or marine, he may be detained in pursuance of the 44 Geo. 3, c. 13, post 639.

If the party be found guilty generally, the court then proceeds either immediately, or at some convenient interval to pass sentence upon him.

At any time between conviction and the actual passing of the sentence, a motion may be made on behalf of the defendant to arrest the judgment, R. v. Hayes, 11 Mod. 3 n.; R. v. Robinson, 2 Burr. 801; R. v. Holt, 5 T. R. 445. This can be grounded only on matter which appears on the face of the record, and which makes the proceedings apparently erroneous, Sutton v. Bishop, 4 Burr. 2287. Thus, objections to the jury, or to the evidence, form no grounds for arresting the judgment, R. v. Sheppard, 1 Lea. C. C. 105. It was formerly considered that every matter which would have justified a demurrer, would also sustain this motion; and accordingly, demurrers were but little resorted to, the party conceiving it more advantageous to defer his objections until he had first taken his chance of an acquittal; but now by the 9 Geo. 4, c. 54, s. 31, certain objections to the indictment therein detailed cannot be taken advantage of otherwise than by demurrer. Subject however to these exceptions, the rule would still seem

to prevail: and a motion in arrest of judgment may be sustained, if time or place be not stated, or improperly stated when they are material, 4 Bl. Com. 375; R. v. Lookup, 3 Burr .1901, or if the facts detailed in the indictment do not disclose an offence, R. v. Wheatly, 2 Burr. 1125, or the like. Should the judge be of this opinion, even after a motion in arrest of judgment has been waived by the defendant, and after sentence pronounced, but before actual entry of the judgment, it seems he will himself, without motion, arrest the judgment, R. v. Waddington, 1 East 146. A motion in arrest of judgment can never be entertained after judgment against the defendant on demurrer, although it may, after a judgment by default, R. v. Deman, 2 Ld. Raym. 1221. Judgment on an indictment removed by certiorari, cannot be arrested until the defendant appears, 7 Mod. 39. And the defendant, in all cases at least where the punishment may be corporal, ought to be present in court when it is made, R. v. Spraggs, 2 Burr. 930; 2 Hawk. c. 48, s. 17.

When a motion in arrest of judgment is made at the assizes, and the judge thinks there may be good grounds for arresting it, the sentence is respited to take the opinion of the twelve judges. If the judge think otherwise, he then passes sentence; but he may, nevertheless, respite the execution in order to take the opinion of the judges upon the point, Burn, J. Judgment; 2 Lea. C. C. 1026. If the judgment be ultimately arrested, all the proceedings will be set aside, and judgment of acquittal will be given; but a new indictment may immediately be preferred, Vaux's Case, 4 Co. 45.

NOTE.

CHAPTER XIV.

OF ATTAINDER, EXECUTION, AND PARDON.

The king

lands of

SECTION 1.

Of Attainder.

9 Hen. 3 (Magna Charta), c. 22, Eng.-We will not hold shall hold the the lands of them that be convict of felony, but one year and one day; and then those lands shall be delivered to the lords one year and of the fee. a day.

felons but

The king shall have

also their lands, for a year and a

17 Edw. 2, c. 16, Eng. Also the king shall have the goods of all felons attainted, and fugitives, wheresoever they be the goods of found. (2) And if they have freehold, then it shall be forthall felons, as with taken into the king's hands, and the king shall have all profits of the same by one year and one day, and the land shall be wasted and destroyed in the houses, woods, and gardens; day; and may and in all manner of things belonging to the same land; excepting men of certain places privileged by the king therefore. (3) And after our lord the king hath had the year, day, and waste, then the land shall be restored to the chief lord of the same fee, unless that he fine before with the king for the year, the day, and the waste.

waste them.

or murder,

shall extend to disinherit the heir.

54 Geo. 3, c. 145(a).—Whereas it is expedient to make No attainder, such provisions by law as are hereinafter contained; be it except for therefore &c., that no attainder for felony, which shall take high treason place from and after the passing of this act, save and except in cases of the crime of high treason, or of the crimes of petit treason or murder, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons, other than the right or title of the offender or offenders during his, her, or their natural lives only; and that it shall be lawful to every person or persons, to whom the right or interest of any lands, tenements, or hereditaments, after the death of any

(a) Entitled, "An act to take away corruption of blood, save in certain

es.

such offender or offenders should or might have appertained, if 54 G. 3, c.145. no such attainder had been, to enter into the same.

descent.

3 & 4 Will. 4, c. 106 (a), s. 10.—That when the person Attainder, from whom the descent of any land is to be traced, shall have when it shall had any relation who having been attainted shall have not bar died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land, who would have been capable of inheriting the same by tracing his descent through such relation, if he had not been attainted, unless such land shall have been escheated in consequence of such attainder before the first day of January, 1834.

trustees, not

or conviction

4 & 5 Will. 4, c. 23(b), s. 3.—That no land, chattels, or Property stock (c) vested in any person, upon any trust, or by way of vested in mortgage, or any profits thereof, shall escheat or be forfeited to to escheat, his majesty, his heirs, or successors, or to any corporation, by attainder lord of a manor, or other person, by reason of the attainder or of trustee. conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his co-trustee, or descend or vest in his representative, as if no such attainder or conviction had taken place.

trusts this

4. That the several provisions of this act shall extend to To what every case of a trustee having some beneficial estate or interest act shall in the same subject, or some duty as trustee to perform, and apply. also to every case of a trust arising or resulting by implication of law, or by construction of equity.

interest in

5. Provided always, and be it hereby enacted, that nothing Escheat of a contained in this act shall prevent the escheat or forfeiture of beneficial any land, chattels, or stock, vested in any such trustee or trustee not mortgagee, so far as relates to any beneficial interest therein of prevented. any such trustee or mortgagee; but such land, chattels, or stock, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this act had not passed (d).

(a) Entitled, " An act for the amendment of the law of inheritance." (b) Entitled," An act for the amendment of the law relative to the escheat and forfeiture of real and personal property holden in trust.”

(c) By sec. 1, "land" is to be construed as meaning all real property,"chattels" as all personalty except "stock;"-and "stock," any funds, annuity, or security transferable in the books of any company, or any money payable for the discharge and redemption thereof, or any share or interest therein."

(d) See further as to Attainder, its effects and consequences, ante 364.