[oath (f): the consequence of which still was, that the jury gave less credit to the prisoner's evidence, than to that produced by the Crown. Sir Edward Coke protests very strongly against this tyrannical practice; declaring, that he never read, in any Act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and that therefore there was not so much as scintilla juris against it (g). And the house of commons were so sensible of this absurdity, that, in the bill for abolishing hostilities between England and Scotland, (when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties,) they insisted on a clause, and carried it against the efforts of both the Crown and the house of lords, against the practice of the courts in England, and the express law of Scotland, "that in all such trials, for the better

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discovery of the truth, and the better information of "the consciences of the jury and justices, there shall be "allowed to the party arraigned the benefit of such "credible witnesses, to be examined upon oath, as can "be produced for his clearing and justification" (h). At length by the statute 7 Will. III. c. 3, the same measure of justice was established throughout all the realm, in cases of treason causing any corruption of blood, and of misprision thereof: and it was afterwards declared, by statute 1 Anne, st. 2, c. 9, that in all cases of treason and felony, all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him (i).] And now,

(f) 2 Bulst. 147; Cro. Car. 292. (g) 3 Inst. 79. See also 2 Hale, P. C. 283, and his Summary, 264.

(h) Stat. 4 Jac. 1, c. 1. See Com. Journ. 4, 5, 12, 13, 15, 29, 30 Jun. 1607.

(i) Provisions have been recently made (vide sup. p. 355) to afford

there is no distinction in

facilities to persons accused of indictable offences before they are committed or bailed to have the depositions taken of such persons as they may desire to call as witnesses; and for the payment of their expenses, if allowed by the court at the trial.

this matter between civil and criminal proceedings. In all cases, every witness who is examined in a court of justice must give his evidence under the sanction of an oath, or of some affirmation allowed in substitution of an oath.

Lastly, the defendant in a criminal prosecution is allowed to call witnesses to speak, generally, to his character: though he is not allowed to prove particular actions bearing favourably on his character; unless they happen to stand in connection with some of the facts charged and proved against him (m). And here we may take occasion to notice certain legislative provisions in reference to the previous character of the accused. For by 24 & 25 Vict. cc. 96, 99 (n), it is provided that in an indictment under those Acts, alleging the offence to have been committed after a previous conviction, the defendant shall, in the first instance, be arraigned upon so much of the indictment as charges the subsequent offence, concerning which only the jury shall, in the first instance, be charged to inquire; and that if they shall find him guilty thereof, or if on arraignment he shall plead guilty to the subsequent offence, then, and not before, the previous conviction shall be inquired into. But there is an exception as to this, if the prisoner gives evidence as to character: for in that case the prosecutor may, in answer thereto, give evidence of the previous conviction before the subsequent offence is found: and the jury shall then inquire of the previous conviction and of the subsequent offence, at the same time (o). Moreover, it forms one of the provisions of the Prevention of Crimes

(m) As to evidence to contradict evidence to character, see R. v. Rowton, 34 L. J. (M. C.) 57.

(n) There is a previous statute on this subject to the same general effect, viz. 6 & 7 Will. 4, c. 111.

(0) 24 & 25 Vict. c. 96, s. 116,

and c. 99, s. 37. Some doubt appears to be entertained whether this practice is confined to offences under these Acts, or is general. See Arch. Pl. & Ev. 15th ed. p. 831; The Criminal Law Acts, by Greaves, p. 203.

Act, 1871 (34 & 35 Vict. c. 112), s. 18, that a previous conviction may be proved by producing a record or extract of such conviction; and by giving proof of the identity of the person against whom the conviction is sought to be proved, with the person appearing in the record or extract of conviction to have been convicted.

[When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged, (unless in cases of evident necessity,) till they have given in their verdict (p): but are to consider of it, and deliver it in, with the same forms as upon civil causes. But the judges may adjourn, while the jury are withdrawn to confer, and return to receive the verdict in open court (q).] And when the trial runs to such a length, that it cannot be concluded in one day, the established practice now is to adjourn the court till the next morning; but the jury must be kept somewhere together, so that they may have no communication except with each other (r). [Such verdict may be either general, as "guilty" or "not guilty;" or special, setting forth all the circumstances of the case, and praying the judgment of the court (s); whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict,-if they think proper so to hazard a

(p) Co. Litt. 227; 3 Inst. 110; Foster, 27; Gould's case, Hil. T. 1764. See the Queen v. Charlesworth, 1 B. & Smith, 460. The discretion of a judge with regard to the discharge of a jury before verdict cannot be considered in a court of error. (Winsor v. The Queen, Law Rep., 1 Q. B. 289; S. C. in

VOL. IV.

error, ib. 390.)

(q) 3 St. Tr. 731; 4 St. Tr. 231, 455, 485.

(r) Stone's case, 6 T. R. 527; 1 Chit. C. L. 632.

(8) See an example of a special verdict, in an indictment for a nuisance, R. v. Tindall, 6 A. & E. 143.

FF

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[breach of their oaths. But the practice some time in use, of fining, imprisoning, or otherwise punishing jurors, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal. And it is treated as such, by Sir Thomas Smith, two hundred years ago; who accounted such doings "to be very violent, tyrannical, and contrary to the liberty and custom of "the realm of England" (u). For, as Sir Matthew Hale well observes, it would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions: unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless (r). Yet, in many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside; and a new trial granted by the Queen's Bench (y). But there hath yet been no instance of granting a new trial, where the prisoner was found not guilty on the first (~).

If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation (a). And upon such his acquittal, or upon his discharge for want of prosecution, or upon the bill of indictment not being found by the grand jury (b), he shall be immediately set at large, without payment of any fee to the

(u) Smith's Commonw. 1. 3, c. 1. (a) 2 Hale, P. C. 313.

(y) The cases of new trial in the books are all of misdemeanor (see R. v. Read, 1 Lev. 9; St. Tr. x. 416; R. v. Whitehouse, 1 Dearsley, C. C. 1; R. v. Manby, 6 T. R. 619; R. v. Oxford, 13 East, 410, 415). The only case in which a new trial has been granted after verdict in a case of felony appears to be R. v. Scaife and others, 17 Q. B. 238; 2 Den. C. C. 286, in notis. But as to this case, see Reg. v. Bertrand, Law Rep., 1 App. Ca. P. C. 520; and Reg. v.

Murphy, ib. 2 P. C. Ca. 535.

(z) Hawk. P. C. b. 2, c. 47, s. 11. However in cases of misdemeanor for nonfeasance and such as involve civil liability, though the proceeding is criminal in form, a new trial has been granted after a verdict of acquittal. See The Queen v. Russell, 3 Ell. & Bl. 942; The Queen r. Johnson, 2 Ell. & Ell. 613.

(a) The civil law in such case only discharged him from the same accuser, but not from the same accusation. (Ff. 48, 2, 7, s. 2.) (b) Vide sup. p. 367.

[gaoler (c). But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted (d). Which conviction, therefore, may accrue two ways, either by his confessing the offence, and pleading guilty; or by his being found so by the verdict of his country.]

The present chapter shall conclude with noticing two circumstances collateral to the prosecution-first, the allowance of the expenses which have been incurred; and, secondly, in case of larceny, the restitution of the goods stolen.

1. And, first, by 7 Geo. IV. c. 64, s. 22 (e), the court before whom an indictment for any felony is preferred (ƒ), is empowered to allow the expenses of the prosecutor and his witnesses (g),-with compensation for their trouble and loss of time (h), and this whether the case shall terminate in conviction or acquittal, or in the throwing out

(c) See 14 Geo. 3, c. 20; 55 Geo. 3, c. 50; 8 & 9 Vict. c. 114; R. v. Coles, 8 Q. B. 75.

(d) In the Roman republic, when the prisoner was convicted of any capital offence by his judges, the form of pronouncing that conviction was something particularly delicate; not that he was guilty, but that he had not been enough upon his guard: 66 parum cavisse videtur." (Festus, 325.)

(e) This Act repeals the previous enactments contained in 27 Geo. 2, c. 3; 18 Geo. 3, c. 19; 58 Geo. 3, c. 70.

(f) See also 7 & 8 Vict. c. 2, s. 1, as to offences committed on the high seas; 17 & 18 Vict. c. 104, s. 267, as to offences by British seamen; 19 & 20 Vict. c. 16, s. 13; 25 & 26 Vict. c. 65, s. 12, as to prosecutions

removed for trial to the Central Criminal Court; 32 & 33 Vict. c. 62, s. 17, as to the prosecution of fraudulent debtors.

(g) By 7 Geo. 4, c. 64, s. 28, and 14 & 15 Vict. c. 55, s. 8, the court may also order compensation to parties who have been active in the apprehension of certain offenders. (Vide sup. p. 352.)

(h) By 14 & 15 Vict. c. 55, s. 4, the amount of costs and expenses of the prosecutions, is placed under the superintendence of the secretary of state; and the costs, being charged in the first instance upon the county rate, (or in the case of a borough with a separate quarter sessions on the borough rate,) are repaid to the treasurer of the county (or borough) out of monies provided by parliament.