CHAPTER XX. INCIDENTS OF TRIAL. SOME miscellaneous points connected with a criminal trial remain to be noticed, now that we have viewed the general order of proceedings. formâ pau Defence in forma pauperis.-In cases of extreme Defence in poverty (that is, when the defendant will swear that he peris. is not worth £5 in the world, besides his wearing. apparel, after paying his debts) the defendant may petition the Queen's Bench Division to be allowed to defend himself as a pauper. His petition must be verified at the same time by an affidavit. It (the petition) is presented either to a judge at chambers or in court. On the prayer of the petition being granted, a rule is drawn up by the judge's clerk, mentioning the name of the counsel and attorney assigned for the defence; and this must be produced when the pauper requires anything to be done without payment of fees (h). request of There is also a custom of a similar nature. In cases Defence at the where there is a special difficulty, or where the con- the judge. sequences are very serious, and therefore usually on indictments for murder, if the prisoner is not defended by counsel, the judge requests some barrister to give his honorary services to the prisoner. Of course, this request is always complied with. Sometimes a poor person is allowed to prosecute in Prosecution in formâ pauforma pauperis, but then, in addition to the petition peris. (h) Arch. 155. R. v. Dugdale, Corner's Cr. Prac. 167. View of locus in quo. Adjournment of trial. Withdrawal tion. and affidavit, there must be special grounds shewn for allowing this irregularity (¿). View of locus in quo by the jury.—The judge may allow the jury to view the scene of the crime, or other occurrence under investigation, at any time during the trial, even after the summing-up. But care should be taken that no improper communications are made at the view; and that no evidence is received in the absence of the judge and the prisoner (k). Adjournment of the trial.-If the trial is not concluded on the same day on which it is commenced, the judge may adjourn from day to day (1). And a judge may adjourn a case and proceed with another if the emergency requires it, as, for example, to give time for the production of something essential to the proof, or for the witnesses to arrive (m). If the prisoner is taken so ill as to render him incapable of remaining at the bar, the jury is discharged, and the prisoner is afterwards tried by another jury (n). Withdrawal from prosecution.-Frequently the profrom prosecu- secutor is desirous of withdrawing from the prosecution, the accused engaging not to bring an action for trespass and false imprisonment or malicious prosecution. If the offence is a misdemeanor more immediately affecting the individual, e.g., a battery, or, in other words, one which might be made the subject of civil action, this will be allowed, and the agreement will be enforced; but not if the offence is a felony or a misdemeanor of a more public nature (o). Even after verdict, if the court deems such a course proper, the defendant (i) Arch. 156. R. v. Wilkins, 1 Dowl. P. C. 536. (k) R. v. Martin, L. R. 1 C. C. R. 378; 41 L. J. (M.C.) 113. (m) R. v. Wenborn, 6 Jur. 267. (n) R. v. Stevenson, 2 Leach, 546. (o) v. Rawlings v. Coal Consumers' Association, 43 L. J. (M.C.) 111. is sometimes allowed to "talk with the prosecutor." Though one person is not obliged in the first instance to prosecute another whom he suspects of crime, that is, not until he has been bound over by the magistrate to prosecute and give evidence, it is a crime to take a reward not to prosecute a felony (p). of goods. Restitution of goods. When a man's goods have Restitution been stolen, he may, if he can do so without a breach of the peace, retake them wherever he finds them (q), as the goods are still his, unless they have been sold and bought in market overt, by which sale a bona fide purchaser acquires the property in the goods. In that case the original owner is entitled to have his goods back only after he has prosecuted the thief to conviction; and that only in consequence of the provisions of the Larceny Consolidation Act. If any person guilty of any such felony or misdemeanor as is mentioned in that Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattel, money, valuable security or other property, is indicted for such offence by or on behalf of the owner of the property, or his executors, or administrators, and convicted thereof; in such case the property is to be restored to the owner or his representative. The court may order the restitution in a summary manner. no such restitution is made if it appears that any valuable security has been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, has been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or reasonable cause to suspect that the same had, by any felony or misdemeanor, been stolen, &c. But the above pro (p) v. compounding felony, p. 98. But Effect of the statute. Goods obtained by false pretences. visions as to restitution do not apply to the case of any prosecution of any trustee, banker, merchant, solicitor, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods, for any misdemeanor against the Larceny Act (r). But the court has not power, as a rule, to order property not forming part of the subject of the indictment, for example, property found on the prisoner, to be disposed of in a particular manner (s). The effect of this statute is to revest the property in the goods in the original owner from the time of the conviction, so that he may bring an action to recover his goods against any one who had possession of them after the conviction (t), but not against a person who, having bought them in market overt, parted with them before such conviction (u). Or the owner may obtain a summary order for restitution under the statute. Now as we have seen that there is a distinction, in the case of goods which have been stolen and afterwards sold, between a sale in market overt and a sale otherwise, on which depends the right to recover by the aid of the statute only, or without it; so similarly with regard to goods which have been obtained from the owner by false pretences, different considerations apply according as the property has or has not passed from the original owner. Thus, for example, when A. is induced by fraud to part with his goods to B., under the belief that he is selling the goods to some person whom B. pretends to be, or to be the agent of, the contract is void, and the (r) 24 & 25 Vict. c. 96, s. 100. (8) R. v. Corporation of London, 27 L. J. (M.C.) 231. But an exception is introduced by statute 30 & 31 Vict. c. 35, s. 9. (t) Scattergood v. Sylvester, 15 Q. B. 506. (u) Horwood v. Smith, 2 T. R. 750. property in the goods has never passed from A., and he is therefore entitled, apart from the statute, to recover his goods, or sue for the conversion of them (x). But when A. has been induced by fraud to sell or part with his goods to B., intending to pass the property to him, the contract is not void, but voidable; i.e., A. may repudiate the contract on discovering the fraud, and may recover the goods from B., or from a purchaser who had notice of the fraud. But if B. has sold the goods to C., an innocent purchaser, A. cannot recover the goods from C., because the property in the goods. passed to him while B. had the property, and so C. has acquired a good title, unless the statute gives A. the right to recover. The words of the statute seem to have that effect, and were so considered by Blackburn, J., in Lindsay v. Cundy (y). And it is difficult to see any reason why a person who has bought in market overt bonâ fide, but from a thief, should be in a worse position than one who has simply purchased from one who has obtained the goods by fraud. However, it has been decided, in the recent case of Moyce v. Newington (2), that the statute does not apply to cases of false pretences where the property has passed, but only to those cases where possession has been obtained without the property passing, cases in which, as we have seen, the statute is unnecessary, except for the purpose of giving a summary mode of obtaining restitution. innocent pur The innocent purchaser is not, however, always a Remedy of total loser; for it is provided that money found on a chaser. prisoner, who has been convicted of an offence which includes the stealing of any property, may be ordered by (x) Hardman v. Booth, 1 H. & C. 803; 32 L. J. (Ex.) 105; Lindsay v. Cundy, L. R. 1 Q. B. D. 348; 45 L. J. (Q.B.) 381; L. R. 2 Q. B. D. 96; 46 L. J. (Q.B.) 233; L. R. 3, Appeal Cases, 459; 47 L. J. (H.L.) 481. (y) L. R. 1 Q. B. D. 357. (2) L. R. 4 Q. B. D. 32; 48 L. J. (Q.B.) 125. |