It has been held under the Imperial statute that an indictment might be amended by striking out an erroneous and unnecessary statement of the time of the passing of an Act of parliament referred to in it; (1) that an indictment for the obstruction of a footway might be amended so as to correct a misdescription of one of the termini of the footway; (2) that in an indictment for night poaching an amendement might be made so as to correct a misdescription of the occupation of the field; (3) that an amendment might also be made where the ownership of stolen property was wrongly described ; (4) or in order to correct a wrong description of the stolen property itself, as where the statement in the indictment was that the prisoner stole nineteen shillings and sixpence, whereas the proof shewed that she stole a sovereign, (5) And where an indictment for perjury alleged that the perjury was committed on a trial for burning a bara whereas the proof was that the trial was for firing a stack, the indictment was allowed to be amended (6) So, also, where an indictment charged the prisoner with intent to kill and murder A. W., an infant, and the prosecution failed to prove that the child had ever borne such a name the indictment was allowed to be amended by striking out the name, and describing the child as " a certain female child whose name is to the Jurors unknown. (7)

Where in an in lictment for perjury before justices. the justices were described as being justices for the county and the evidence shewed that they were borough justices only, this was held a proper subject for amendment. (8)

See comments under Article 629 at pp 591 and 592, ante.

See Articles 733 and 734 post, as to motions in arrest of julgment.

As to reserving questions of law see Article 743, post.

724. Amendment to be endorsed on record.~In case an order for amendment as provided for in the next preceding section is made it shall be endorsed on the record; and all other rolls and proceedings connected therewith shall be amended accordingly by the proper officer and filed with the indictment, among the proper records of the court. R.S.C., c. 174, s. 240.

725. Form of formal record in case of an amendment. If it becomes necessary to draw up a formal record in any case in which an amendment has been made as aforesaid, such record shall be drawn up in the form in which the indictment remained after the amendment was made, without taking any notice of the fact of such amendment having been made. RS.C., c. 174, s. 243.

726. Form of record of conviction or acquittal. In making up the record of any conviction or acquittal on any indictment, it shall be sufficient to copy the indictment with the plea pleaded thereto, without any formal caption or heading; and the statement of the arraignment and the proceedings subsequent thereto shall be entered of record in the same manner as before the passing of this Act subject to any such alterations in the forms of such entry as are

(1) R. v. Westley, Bell, 193; 29 L. J. (M. C.) 35.

(2) R. v. Sturge, 3 E. & B. 374; 23 L. J. (M. C.) 172.

(3) R. v. Sutton, 13 Cox, 648.

(4) R. v. Vincent, 2 Den. 464; 21 L. J. (M. C.) 109: R. v. Marks 10 Cox, 367.

(5) R. v. Gumble, L. R., 2 C.C.R., 1; 42 L. J, (M. C.) 68.

(6) R. v. Neville, 6 Cox, 69.

(7) R. v. Welton, 9 Cox, 297.

(8) R. v. Western, L. R., 1 C.C.R., 122; 37 L. J. (M. C.) 81.

from time to time, prescribed by any rule or rules of the superior courts of criminal jurisdiction respectively,-which rules shall also apply to such inferior courts of criminal jurisdiction as are therein designated. R.S.C., c. 174, s. 244.

See comments at p. 668, post, as to form of Crown Book suggested by the Royal Commissioners.

727. Jury retiring to consider verdict. If the Jury retire to consider their verdict they shall be kept under the charge of an officer of the court in some private place, and no person other than the officer of the court who has charge of them shall be permitted to speak or to communicate in any way with any of the Jury without the leave of the court.

2. Disobedience to the directions of this section shall not affect the validity of the proceedings: Provided that if such disobedience is discovered before the verdict of the Jury is returned, the Court, if it is of opinion that such disobedience has produced substantial mischief, may discharge the Jury and direct a new Jury to be sworn or empanelled during the sitting of the court, or postpone the trial on such terms as justice may require.

728. Jury unable to agree may be discharged.-If the Court is satisfied that the Jury are unable to agree upon their verdict, and that further detention would be useless, it may in its discretion discharge them and direct a new Jury to be empanelled during the the sittings of the Court, or may postpone the trial on such terms as justice may require.

2. It shall not be lawful for any court to review the exercise of this discretion.

In former times the Jury on retiring to consider their verdict were placed in charge of an officer sworn to keep them "without meat, drink, or fire, candlelight only excepted, and to suffer none to speak to them nor to speak to them, himself, without leave of the court, except only to ask them whether they were agreed;" (1) and, if, before giving their verdict the Jury were to eat or drink, they were subject to be fined (2) The law on the subject was changed by the Imperial statute 33 and 34 Vict., c. 77, sec 23, so as to allow to a Jury the use of a fire when out of Court and to be supplied at the discretion of the Court with refreshments. By sec. 21 of 53 Vic., c. 37, (Dom) it was provided that Jurors might in the discretion of the Court be allowed the use of fire and be also allowed reasonable refreshment; and Article 674, ante, now provides that Jurors after being sworn shall be allowed, at any time before verdict, the use of fire and light, when out of Court, and that they shall also be allowed reasonable refreshment.

It used to be said that in the case of a trial at the Assizes, the Jury, if they did not agree before the Judges departed the county, might be carried with them to the borders of the county, or, according to some authorities, from place to place through the circuit until they were unanimous. (3) If this was ever the law, it has long since ceased to be so. (4) It was said also to be at one time a general rule of law, that a Jury sworn and charged in case of life or member could not be discharged by the Court or any other, but that they ought to give

(1) 2 Hale, 296.

(2) 1 Inst., 227.

(3) 2 Hale, 297; Bac. Abr., Juries (G.); 1 Vent. 97.

(4) Winsor v. R., L. R., I Q. B. 326; 35 L. J. (M. C.) 121.

their verdict." (1) This doctrine, however, which if taken, literally, seemed to command the confinement of the Jury till death, if they did not agree, seems to have been too broadly stated by Lord Coke, and it was denied to be law in Ferrar's Case, (2) and it appears to have been long considered as established law that, as expressly declared by the above Article, 728, that a Jury sworn and charged in any case may be discharged, if the Court is satisfied that they are unable to agree upon their verdict. (3)

The Judge alone is to decide upon the existence of the necessity of discharging the Jury without agreeing upon their verdict. Thus were the Jury on a trial at the Assizes, for murder were locked up from the middle of the day until the following morning, and then, on their being sent for into court, stated that it was impossible for them to agree, whereupon the judge discharged them, it was held that he was warranted by law in doing so. (4)

Where a material and necessary witness for the prosecution refused to answer a question put to him, and although informed by the Judge that he was bound to do so, persisted in such refusal, and was thereupon adjudged guilty of contempt of court and fined and imprisoned, the Judge, on the application of the Counsel for the prosecution, and against the will of the defendant, discharged the Jury. The course pursued by Mr. Justice Hill in this case was afterwards questioned in the Court of Queen's Bench, and although it did not become necessary to give judgment upon its propriety, Blackburn, J., expressed an opinion that it was right, which opinion seems to have been shared by Cockburn, C. J. (5)

The exercise of the Judge's discretion in discharging a Jury unable to agree upon their verdict is now expressly declared by clause 2 Article 728, to be not subject to review by any Court.

729. Proceedings on Sunday.—The taking of the verdict of the Jury or other proceeding of the court shall not be invalid by reason of its happening on Sunday.

See Remarks of the English Commissioners, upon this provision, at p. p. 619 and 620, and the case of Winsor v. R., there cited.

730. Suspension of sentence of death on pregnant woman.—If sentence of death is passed upon any woman she may move in arrest of execution on the ground that she is pregnant. If such a motion is made the Court shall direct one or more registered medical practitioners to be sworn to examine the woman in some private place, either together or successively, and to inquire whether she is with child of a quick child or not. If upon the report of any of them it appears to the Court that she is so with child execution shall be arrested till she is delivered of a child, or until it is no longer possible in the course of nature that she should be so delivered.

731. Jury de ventre inspiciendo abolished.-After the commencement of this Act, no Jury de ventre inspiciendo shall be empanelled

or sworn.

The oaths neretofore in use and taken by the fore matron and matrons of a

(1) Co Litt. 227 (b). See, also, 3 Inst. 110; Fost. 29–39.

(2) Ferrar's Case, Sir T. Raym. 84.

(3) Winsor v. R.,L.R. 1 Q. B., 289; R. v. Shields, 28 St. Tr. 414; R. v. Cobbett,

3 Burn's J., (30 Ed.), 98.

(4) R. v. Newton. 13 Q B., 716; 18 L. J. (M. C.) 201.

(5) R. v. Charlesworth, 2 F. & F. 326 ; 1 B. & S. 460; 31 L. J. (M. C.) 25.

Jury of matrons may be altered and administered, to medical practitioners appointed under Article 730, in the following form:

"You and each of you swear that you will examine and search the prisoner at the bar and enquire and ascertain whether she be with child of a quick child and a true report thereof make according to your skill and understanding.-So help you God."

See comments at p. 192, ante, as to the different stages of pregnancy.

732. Stay of proceedings.-The Attorney-General may, at any time after an indictment has been found against any person for any offence, and before judgment is given thereon, direct the officer of the court to make on the record an entry that the proceedings are stayed by his direction, and on such entry being made all such proceedings shall be stayed accordingly.

2. The Attorney-General may delegate such power in any particular court to any counsel nominated by him.

This power of the Attorney General to stay proceedings was formerly exercised by entering a nolle prosequi. As to the occasions on which it has been usual to enter a nolle prosequi, see Archbold's Cr. Pl. and Ev. 21 Ed. p p. 119-121.

733. Motion in arrest of judgment.-If the jury find the accused guilty, or if the accused pleads guilty, the judge presiding at the trial shall ask him whether he has anything to say why sentence should not be passed upon him according to law but the omission so to ask shall have no effect on the validity of the proceedings.

2. The accused may at any time before sentence move in arrest of judgment on the ground that the indictment does not (after any amendment which the Court is willing to and has power to make) state any indictable offence.

3. The Court may in its discretion either hear and determine the matter during the same sittings or reserve the matter for the Court of Appeal as herein provided. If the Court decides in favour of the accused, he shall be discharged from that indictment. If no such motion is made, or if the court decides against the accused upon such motion, the Court may sentence the accused during the sittings of the Court, or the Court may in its discretion discharge him on his own recognizance, or on that of such sureties as the court thinks fit, or both, to appear and receive judgment at some future Court or when called upon. If sentence is not passed during the sitting, the judge of any superior court before which the person so convicted afterwards appears or is brought, or if he was convicted before a court of general or quarter sessions, the court of general or quarter sessions at a subsequent sitting may pass sentence upon him or direct him to be discharged.

4. When any sentence is passed upon any person after a trial had under an order for changing the place of trial, the Court may in its discretion, either direct the sentence to be carried out at the place where the trial was had or order the person sentenced to be removed

to the place where his trial would have been had but for such order, so that the sentence may be there carried out.

See comments under Article 629 at p. p. 591, 592, ante, and see Article 723, and comments at p. 654, ante. See also Article 745, post, as to reserving ques

tions of law.

734. Judgment not to be arrested for formal defects. - Judgment, after verdict upon an indictment for any offence against this Act, shall not be stayed or reversed for want of a similiter,—nor by reason that the jury process has been awarded to a wrong officer, upon an insufficient suggestion,-nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors,-nor because any person has served upon the jury who was not returned as a juror by the sheriff or other officer; and where the offence charged is an offence created by any statuto, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the statute creating the offence, or prescribing the punishment, although they are disjunctively stated or appear to include more than one offence, or otherwise. R.S.C., c. 174, s. 246.

See Article 629 and comments at pp. 591, 592, ante, also Article 723, ante.

735. Verdict not to be impeached for certain Omissions as to Jurors. (As Amended by 51 Vic., c. 32.)-No omission to observe the directions contained in any Act as respects the qualification, selection, balloting or distribution of Jurors, the preparation of the jurors' book, the selecting of jury lists, the drafting panels from the jury lists or the striking of special juries, shall be a ground for impeaching any verdict, or shall be allowed for error upon any appeal to be brought upon any judgment rendered in any criminal case. R.S.C., c. 174, s. 247.

736. Insanity of accused at time of offence.-Whenever it is given in evidence upon the trial of any person charged with any indictable offence, that such person was insane at the time of the commission of such offence, and such person is acquitted, the jury shall be required to find, specially, whether such person was insane at the time of the commission of such offence, and to declare whether he is acquitted by it on account of such insanity; and if it finds that such person was insane at the time of committing such offence, the Court before which such trial is had, shall order such person to be kept in strict custody in such place and in such manner as to the Court seems fit, until the pleasure of the Lieutenant-Governor is known.

See Article 11, and comments, at pp. 9-12, on Insanity. See also comments under Article 657, p. 617, ante.

737. Insanity of accused on arraignment or trial. — If at any time after the indictment is found, and before the verdict is given, it appears to the Court that there is sufficient reason to doubt whether the accused is then, on account of insanity, capable of conducting his defence, the Court may direct that an issue shall be tried whether the accused is or is not then on account of insanity unfit to take his trial.