PART L.

ARRAIGNMENT.

652. Bringing prisoner up for arraignment, If any person against whom any indictment is found is at the time confined for some other cause in the prison belonging to the jurisdiction of the Court by which he is to be tried, the Court may by order in writing, without a writ of habeas corpus, direct the warden or gaoler of the prison or sheriff or other person having the custody of the prisoner to bring up the body of such person as often as may be required for the purposes of the trial, and such warden, gaoler, sheriff or other person shall obey such order. R.S.C., c. 174, s. 101.

653. Right of accused to inspect depositions and hear indictment. -Every accused person shall be entitled at the time of his trial to inspect, without fee or reward, all depositions, or copies thereof, taken against him and returned into the Court before which such trial is had, and to have the indictment on which he is to be tried read over to him if he so requires. RS.C., c. 174, s. 180.

654. Copy of indictment.-Every person indicted for any offence shall, before being arraigned on the indictment, be entitled to a copy thereof on paying the clerk five cents per folio of one hundred words for the same, if the Court is of opinion that the same can be made without delay to the trial, but not otherwise. R.S.C., c. 174, s. 181.

655. Copy of depositions.—Every person indicted shall be entitled to a copy of the depositions returned into Court on payment of five cents per folio of one hundred words for the same, provided, if the same are not demanded before the opening of the assizes, term, sittings or sessions, the Court is of opinion that the same can be made without delay to the trial but not otherwise; but the Court may, if it sees fit, postpone the trial on account of such copy of the depositions not having been previously had by the person charged. R.S.C., c. 174, s. 182.

656. Pleas in abatement abolished.- No plea in abatement shall be allowed after the commencement of this Act. Any objection to the constitution of the Grand Jury may be taken by motion to the Court, and the indictment shall be quashed if the court is of opinion both that such objection is well founded and that the accused has suffered or may suffer prejudice thereby, but not otherwise.

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; second, reading the indictment to him; and third, asking him whether he is guilty or not of the offence charged.

The practice of requiring the prisoner, at the time of his arraignement to hold up his right hand is a ceremony which was never essentially necessary, and is not now generally used, except when two or more prisoners are arraigned

together, upon the same indictment, for the purpose of ascertaining which of them is A. B, C. D., and so forth; and the ancient form of asking the prisoner how he will be tried is obsolete. (1)

At his arraignment, the prisoner is to be brought to the bar, without shackles or other restraint, unless there be special circumstances shewing danger of escape (2) In Layer's case, (3) a distinction was taken between the time of arraignment and the time of trial, and the prisoner in that case was compelled. during his arraignment, to stand at the bar, in irons; but the ruling in that case does not seem to be in accord with the general authority of the expositors of the common law. The Mirror says, "It is an abuse that a prisoner is laden with irons or put to pain before attainted of felony." (4)

The usal form of question put to the defendant, after the reading of the indictment, is as follows :-"How say you? Are you guilty or not guilty ?"

657. Plea.-Refusal to plead.—When the accused is called upon to plead he may plead either guilty or not guilty, or such special plea as is hereinbefore provided for.

2. If the accused wilfully refuses to plead, or will not answer directly, the Court may order the proper officer to enter a plea of not guilty. R.S.C., c. 174, s. 145·

Where it is a matter of doubt whether or not a prisoner is wilful in his refusal to plead or omission to answer directly, the Court may direct a Jury to be forthwith empanelled and sworn to try the question. The form of the oath to the jury in such a case is as follows:-You shall well and truly try whether A. B., the prisoner at the bar who stands charged with an indictable offence refuses to plead (or omits to give a direct answer ") wilfully, or by the visitation of God, and a true verdict give according to the evidence: So help you God.

44

If a person be found to be mute ex visitatione Dei, the Court, in its discretion, will use such means as may be sufficient to enable the prisoner to understand the charge, and make his answer; and if this be found impracticable a plea of not guilty should be entered, and the trial proceed. (5)

Where a prisoner 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 severally as to 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 enquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defence, to challenge a juror whom he might wish to object to, and to understand the details of the evidence. (6)

On the trial of a deaf mute for felony, he was found guilty, but the Jury also found that he was incapable of understanding and did not understand the proceedings at the trial; upon which finding it was held that the prisoner could not be convicted, but must be detained as a non-sane person during the Queen's pleasure. (7)

In another case, where the prisoner was indicted at the Central Criminal

(1) 2 Hawk. c. 28, s. 2.

(2) 2 Hawk. c 28, s. 1.

(3) R. v. Layer, 16 How. St. Tr. 94.

(4) The Mirror, c. 5 s 1. See, also Britton, (by Nichols), vol. 1, p. 44; 3 Inst. 34 and Staundf. P

78.

(5) 1 Chit. Cr L. 417.

(6) R. v. Pritchard, 7 C & P. 303.

(7) R. v. Berry, 1 Q B. D. 447; 45 L J. (M. C.) 123.

Court, 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 enquire whether the prisoner was in a tit state of mind to plead to tho indictment, and, it appearing, from the evidence, that the prisoner seemed te 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. (1)

From the earliest times it has been the law that, when a prisoner, though he may have been perfectly sane when he committed the offence for which he was indicted, was found to be insane at the time of arraignment, he shall not be arraigned for it; for he is not in full possession of his senses, so as to be capable of pleading to the indictment with due caution, or doing what is necessary for his defence. (2)

Article 737, post, makes provision for the trial of any person who appears, at any time after the finding of an indictment against him, to be incapable, on account of insanity, of conducting his defence.

If the defendant pleads not guilty," his plea is recorded by the officer of the Court, either by writing "po. se.," an abbreviation of the words, ponit se super patriam, or, as at the Central Criminal Court, by the word, “puts,” and by an entry in the minute book of the Court. (3)

66

658. Special provisions in cases of treason.-When any one is indicted for treason, or for being accessory after the fact to treason, the following documents shall be delivered to him after the indictment has been found, and at least ten days before his arraignment; that is to say:

(a.) a copy of the indictment;

(b.) a list of the witnesses to be produced on the trial to prove the indictment; and

(c.) a copy of the panel of the jurors who are to try him returned by the sheriff."

2. The list of the witnesses and the copy of the panel of the jurors must mention the names, occupations, and places of abode of the said witnesses and jurors.

3. The documents aforesaid must all be given to the accused at the same time and in the presence of two witnesses.

4. This section shall not apply to cases of treason by killing Her Majesty, or to cases where the overt act alleged is any attempt to injure her person in any manner whatever, or to the offence of being accessory after the fact to any such treason.

(1) R. v. Wheeler, Arch. Cr. Pl. & Ev. 21 Ed. 161.

(2) 4 Bl. Com. 24.

(3) See R. v Newman, 2 Den. 392; 21 L. J. (M. C.) 75, 76.

PART LI.

TRIAL.

With regard to the Part of the English Draft Code, which deals with trial, the English Commissioners make, in their Report, the following remarks:

"It does not go into minute detail through every part of it; but notices those parts only on which the law appears to require statement or alteration.

Sections 518, 519 and 520 (1) state the law as to going through the panel, introducing into England some of the provisions of 39 & 40 Vict. c. 78 (as to Ireland), and providing that the number of jurors to be peremptorily challenged shall henceforth be thirty-five in cases of treason, twenty in cases where the accused might upon conviction be sentenced to penal servitude for life, and six in all other cases. Some alteration is made necessary by the abolition of the distinction between felony and misdemeanour; and what we suggest is something between the present English and the present Irish system. In England there are twenty peremptory challenges in all felonies, and none in any misdemeanor. In Ireland there are twenty in felony, and six in misdemeanor. Section 531 (2) abolishes juries of matrons, where pregnacy is pleaded, and substitutes a medical examination; section 525 enables the court to adjourn or postpone the trial in order to obtain the attendance of any witness whose testimony appears material. This alteration is one of considerable importance.

Section 526 (3) permits admissions to be made in a criminal trial. At present if the accused is proved before his trial to have made an admission, it is evidence against him; but though he offers to make the same admission in court, it is thought that in cases of felony the judge is obliged to refuse to let him do so.

Section 532 (4) gives the court a discretion as to allowing the jury to separate on an adjournment, except in capital cases. At present the practice is that they may separate in cases of misdemeanor, but not in cases of felony. Section 535 allows the court to direct that the jury should have a view, (5) which is already permitted by statute in Ireland (39 & 40 Vict. c. 78, s. 111). Section 536 enables the Court to take a verdict on Sunday. (6) This provision was suggested by the case of Winsor v. R., (7) in which it was stated, as

(1) Articles 666 and 667 post are identical with secs. 518 and 519 of the English Draft Code; but Article 668 differs from sec. 520 of the English Draft as to the number of challenges.

(2) See Article 731, post. (3) See Article 690, post. (4) See A ticle 673 post. (5) See Article 722, post. (6) See Article 729, post,

(7) L. R. 1 Q. B. 317, 322; 35 L. J. (M. C ) 121,

one reason for discharging the jury late on a Saturday night, that. if they agreed to their verdict on Sunday, the verdict could not be taken till the Monday.

Section 537 preserves the power of staying proceedings, always hithereto possessed by the Attorney General, and at present exercised by entering a nolle prosequi on the record. (1)

We have passed over section 523, which enables the accused to offer himself as a witness. The bill contained a clause (section 368) enabling the accused to make an unsworn statement on his own behalf, and subjecting him to cross-examination of a restricted character. For this we have substituted section 523, which renders the accused and the husband or wife of the accused competent witnesses for the defence. (2) As regards the policy of a change in the law so important, we are divided in opinion. The considerations in favour of and against the change have been frequently discussed and are well known. On the whole, we are of opinion that, if the accused is to be admitted to give evidence on his own behalf, he should do so on the same conditions as other witnesses, subject to some special protection in regard to cross-examination."

659. Right to full defence.-Every person tried for any indictable offence shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law. R.S.C., c. 174, s. 178.

660. Presence of accused at trial.-Every accused person shall be entitled to be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.

2. The Court may permit the accused to be out of Court during the whole or any part of any trial on such terms as it thinks proper.

661. Right of prosecutor to sum up.-If an accused person, or any one of several accused persons being tried together, is defended by counsel, such counsel shall, at the end of the case for the prosecution, declare whether he intends to adduce evidence or not on behalf of the accused person for whom he appears; and if he does not thereupon announce his intention to adduce evidence, the counsel for the prosecution may address the Jury by way of summing up.

2. Upon every trial for an indictable offence, whether the accused person is defended by counsel or not, he or his counsel shall be allowed, if he thinks fit, to open his case, and after the conclusion of such opening, to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence. If no witnesses are examined for the defence, the counsel for the accused shall have the privilege of addressing the Jury last, otherwise such right shall belong to the counsel for the prosecution: Provided, that the right

(1) See Article 732, post.

(2) This provision is contained in sec. 4 of the Canada Evidence Act 1893,

post.