The Juror objected to may also be examined on the voir dire as to his partiality, or his alienage, etc., as the case may be. The form of oath to a trier is as follows: "You shall well and truly try whether A. B., one of the Jurors, stands indifferent between Our Sovereign Lady the Queen and the prisoner at the bar (or is an alien," etc.,) and a true verdict give according to the evidence.--So help you God." The form of oath to be administered to a witness, sworn to give evidence before the triers, is as follows: iC The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth, and nothing but the truth.-So help you God." The form of oath to be administered to the challenged Juror, when examined on the coir dire is as follows:— "You shall true answers make to all such questions as the Court shall demand of you. So help you God." Besides the objections or exceptions which may be taken to particular Jurors by way of challenge, for the purpose of excluding them from serving, there are also other causes which may be invoked by the Jurors themselves, but which are matters of exemption whereby their services are not excluded but excused.(1) There may also be cases in which the court, without challenge taken, may and ought to excuse a Juryman on the panel when called, if he is obviously unfit to perform his duty, from physical or mental infirmity, or semble, from expressed un-indifferency. (2) A Juryman must be challenged before he is sworn, and cannot afterwards be withdrawn, except by consent. (3) 669. Right to stand Jurors aside in libel cases.-The right of the Crown to cause any Juror to stand aside until the panel has been gone through shall not be exercised on the trial of any indictment or information by a private prosecutor for the publication of a defamatory libel. R.S.C., c. 174, s. 165. 670. Peremptory challenges in case of a mixed Jury.—Whenever a person accused of an offence for which he would be entitled to twenty or twelve peremptory challenges as hereinbefore provided elects to be tried by a Jury composed of one half of persons skilled in the language of the defence under sections six hundred and sixty-four or six hundred and sixty-five, the number of peremptory challenges to which he is entitled shall be divided, so that he shall only have the right to challenge one half of such number from among the English speaking Jurors, and one half from among the French speaking Jurors. R.S.C., c. 174, ss. 166 and 167. 671. Prisoners joining and severing in challenges. If several accused persons are jointly indicted and it is proposed to try them together, they or any of them may either join in their challenges, in which case the persons who so join shall have only as many challenges as a single person would be entitled to, or each may make his (1) 3 Steph. Com., 7 Ed., 525. (2) Mansell v. R., 8 E. & B. 54; Dears & B. 375: 27 L. J. (M. C.) 4. challenges in the same manner as if he were intended to be tried alone. 672. Ordering a tales.—Whenever after the proceedings hereinbefore provided the panel has been exhausted, and a complete Jury cannot be had by reason thereof, then, upon request made on behalf of the Crown, the court may order the sheriff or other proper officer forthwith to summon such number of persons whether qualified Jurors or not as the Court deems necessary and directs in order to make a full Jury; and such Jurors may, if necessary, be summoned by word of mouth. 2. The names of the persons so summoned shall be added to the general panel, for the purposes of the trial, and the same proceedings shall be taken as to calling and challenging such persons and as to directing them to stand by as are hereinbefore provided for with respect to the persons named in the original panel. R.S.C., c. 174, s 168 673. Jurors not to Separate in capital cases.—The trial shall proceed continuously, subject to the power of the Court to adjourn it. Upon every such adjournment the Court may in all cases, if it thinks fit, direct that during the adjournment the Jury shall be kept together. and proper provision made for preventing the Jury from holding communication with any one on the subject of the trial. Such direction shall be given in all cases in which the accused may upon conviction be sentenced to death. In other cases, if no such direc tion is given, the Jury shall be permitted to separate. 2. No formal adjournment of the Court shall hereafter be required and no entry thereof in the Crown book shall be necessary. On a trial for murder, before Maule, J., it was, after the opening address of the counsel, discovered that, in consequence of the detention of the railway train, the witnesses for the prosecution had not arrived in the City, and therefore, the trial was adjourned, the Jury were locked up, a fresh Jury was called into the Jury box, and another case was proceeded with. (1) Where, before verdict an objection was taken that a Juror had been sworn in a wrong name, the same learned Judge intimated that the proper course was to discharge the Jury, and try the prisoners again. (2) Where in the course of the proceedings at a trial it was discovered that one of the Jurors was related to the prisoner, it was held that the trial must proceed, as the fact of such relationship was only a ground of challenge. (3) A prisoner on trial was, by sudden illness, rendered incapable of remaining at the bar, whereupon the Jury were discharged, and the prisoner on recovering was tried before another Jury; (4) and, in another case, where the prisoner became ill and was carried out of Court, the Judge discharged the Jury, and was of opinion that, if the prisoner so taken ill should recover during the Assizes, he might be put on trial again, the proceedings being, of course, begun de novo. (5) (1) R. v. Foster, 3 C. & K. 201. (2) R. v. Metcalf, MS., Arch. Cr. Pl. & Ev. 21 Ed. 185. (3) R. v. Wardle, C. & Mar. 647. (4) R. v. Stevenson, 2 Leach, 546. (5) R. v. Streek, 2 C. & P. 413. Where on the trial of an indictment for perjury the defendant was taken ill during the trial he was allowed to absent himself from the Court until his recovery, and the trial proceeded in his absence. (1) 674. Jurors may have Fire and Refreshments.-Jurors, after having been sworn, shall be allowed at any time before giving their verdict the use of fire and light when out of Court, and shall also be allowed reasonable refreshment. 53 V., c. 57, s. 21. 675. Saving of Power of Court.-Nothing in this Act shall alter, abridge or affect any power or authority which any court or Judge has when this Act takes effect, or any practice or form in regard to trials by Jury, Jury process, Juries or Jurors, except in cases where such power or authority is expressly altered by or is inconsistent with the provisions of this Act. R.S.C., c. 174, s. 170. Where, in the course of a trial, one of the Jurors without obtaining leave, left the Jury box, and also went out of the Court, whereupon the Jury was discharged, and a fresh one empanelled for the trial of the prisoner, it was held that this was the only course that could have been adopted. (2) And, so, where in the course of a trial it was discovered that there was on the Jury a person who was not on the Jury panel, and who had by mistake been summoned as a Juryman, the Jury were discharged and a fresh Jury constituted by taking another Juryman in the place of the one who had served mistake. (3) If one of the Jury die before the delivery of the verdict the remaining eleven will be discharged, and a new Jury may be at once sworn, or a new Juror may be added to the eleven and the defendant tried by them, or (if necessary) he may be remanded to the next Assizes. (4) So, also, if one of the Jurors be taken so ill that he is not able to proceed with the trial (5) In case of another Juror being so added to the eleven, they must be sworn anew; and the prisoner must again have his challenges. (6) In the course of a trial for murder the Jury was discharged, because it was discovered that one of them had come from a house where there was small pox. On the case being resumed, next day, before another Jury, it was contended on behalf of the prisoner that he had already been put in jeopardy and could not be tried again; but the objection was over-ruled, and the trial proceeded with. (7) See Article 728, post, as to discharging Jury, when they are unable to agree. 676. Proceedings when previous offence charged.--The proceedings upon any indictment for committing any offence after a previous conviction or convictions, shall be as follows, that is to say the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence, and if he pleads not guilty, or if the Court orders a plea of not guilty to be entered on his behalf, the Jury shall be charged, in the first instance, to inquire concerning such subsequent offence only; and if the Jury (I) R. v. Orton, alias Castro, Queen's Bench, July 1873, MS.; Arch. Cr. Pl. & Ev 21 Ed. 163. finds him guilty, or if, on arraignment he pleads guilty, he shall then, and not before, be asked whether he was so previously convicted as alleged in the indictment; and if he answers that he was so previously convicted, the Court may proceed to sentence him accordingly, but if he denies that he was so previously convicted, or stands mute of malice, or will not answer directly to such question the Jury shall then be charged to inquire concerning such previous conviction or convictions, and in such case it shall not be necessary to swear the Jury again, but the oath already taken by them shall, for all purposes, be deemed to extend to such last mentioned inquiry: Provided, that if upon the trial of any person for any such subsequent offence, such person gives evidence of his good character, the prosecutor may, in answer thereto, give evidence of the conviction of such person for the previous offence or offences, before such verdict of guilty is returned, and the Jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence. See comments under Article 478, at pp. 432, 433, ante, as to second offences, in general. See Article 628, p. 590, ante, as to matters to be alleged in an indictment charging a previous conviction; and, see also pp. 471, 491, and 492, ante, for forms of indictment charging a previous conviction. See Article 694, post, as to proof of a previous conviction. 677. Attendance of witnesses.-Every witness duly subpoenaed to attend and give evidence at any criminal trial before any court of criminal jurisdiction shall be bound to attend and remain in attendance throughout the trial. R.S.C., c. 174, s. 210. 678. Compelling attendance of witness.-Upon proof to the satisfaction of the judge of the service of the subpoena upon any witness who fails to attend or remain in attendance, or upon its appearing that any witness at the preliminary examination has entered into a recognizance to appear at the trial, and has failed so to appear, and that the presence of such witness is material to the ends of justice, the judge may, by his warrant, cause such witness to be apprehended and forthwith brought before him to give evidence and to answer for his disregard of the subpoena; and such witness may be detained on such warrant before the judge or in the common gaol with a view to secure his presence as a witness, or, in the discretion of the judge, he may be released on a recognizance, with or without sureties, conditioned for his appearance to give evidence and to answer for his default in not attending or not remaining in attendance; and the judge may, in a summary manner, examine into and dispose of the charge against such witness, who, if he is found guilty thereof, shall be liable to a fine not exceeding one hundred dollars, or to imprisonment, with or without hard labour, for a term not exceeding ninety days, or to both. R.S.C., c. 174, s. 211. 679. Witness in Canada but beyond Jurisdiction of Court.-If any witness in any criminal case, cognizable by indictment in any court of criminal jurisdiction at any term, sessions or sittings of any court in any part of Canada, resides in any part thereof, not within the ordinary jurisdiction of the Court before which such criminal case is cognizable, such court may issue a writ of subpoena, directed to such witness, in like manner as if such witness was resident within the jurisdiction of the court; and if such witness does not obey such writ of subpoena the court issuing the same may proceed against such witness for contempt or otherwise, or bind over such witness to appear at such days and times as are necessary, and upon default being made in such appearance may cause the recognizances of such witness to be estreated, and the amount thereof to be sued for and recovered by process of law, in like manner as if such witness was resident within the jurisdiction of the court R.S.C., c. 174, s. 212. 680. Procuring attendance of a prisoner as a witness.—When the attendance of any person confined in any prison in Canada, or upon the limits of any gaol, is required in any court of criminal jurisdiction in any case cognizable therein by indictment, the court before whom such prisoner is required to attend may, or any judge of such court, or of any superior (ourt or county court may, before or during any such term or sittings at which the attendance of such person is required, make an order upon the warden or gaoler of the prison, or upon the sheriff or other person having the custody of such prisoner, to deliver such prisoner to the person named in such order to receive him; and such person shall, at the time prescribed in such order, convey such prisoner to the place at which such person is required to attend, there to receive and obey such further order as to the said court seems meet. R.S.C., c. 174, s. 213. 681. Evidence, under commission, of person dangerously ill.— Whenever it is made to appear at the instance of the Crown, or of, the prisoner or defendant, to the satisfaction of a Judge of a superior court, or a judge of a county court having criminal jurisdiction, that any person who is dangerously ill, and who, in the opinion of some licensed medical practitioner, is not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, such judge may, by order under his hand appoint a commissioner to take in writing the statement on oath or affirmation of such person. 2. Such commissioner shall take such statement and shall subscribe the same and add thereto the names of the persons, if any, present at the taking thereof, and if the deposition relates to any indictable offence for which any accused person is already committed or bailed to appear for trial shall transmit the same, with the said addition, to the proper officer of the court at which such accused person is to be tried; and in every other case he shall transmit the same to the clerk of the peace of the county, division or city in which he has taken the same, or to such other officer as has charge of the records and proceedings of a superior court of criminal jurisdiction in such county, division or city, and such clerk of the peace or other officer shall preserve the same and file it of record, and upon order of the court or of a judge transmit the same to the proper officer of the court where the same shall be required to be used as evidence. R.S.C., c. 174, s 220. |