The cost was ten cents by the repealed statute. See s. 597, ante.

PLEAS IN ABATEMENT ABOLISHED. (New).

656. 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. R. S. C. c. 174, s. 142 part.

The repealed clause applied only to certain pleas in abatement. An objection that the grand jury was composed of more than twenty-three members should now be taken by motion: see Bishop, 1 Cr. P. 884. It is only objections to the constitution of the grand jury that this section provides for. The Code makes no provision on the constitution of the grand jury, with the exception of s. 662, post; in R. v. Mitchel, 3 Cox 93, an objection that a grand juror was disqualified was taken by a plea in abatement. There is no such thing known to the criminal law as a challenge to the grand jury: R. v. Mercier, Q. R. 1 Q. B. 541.

It seems that an objection that the witnesses have not been properly sworn before giving their evidence before the grand jury is a question of law that can be reserved for the Court of Appeal: R. v. Tew, Dears, 429.

The prosecutor has the right to move to quash the finding of the grand jury: R. v. Fieldhouse, 1 Russ. 1030.

Though an objection to the constitution of the grand jury may be well founded, yet the indictment is not to be quashed if the court is of opinion that the accused has not suffered or will not suffer prejudice thereby by the objec tion. See R. v. Belyea, James (N.S.) 220.

PLEA-REFUSAL TO PLEAD. (Amended).

657. 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, ss. 144, 145,

The words "stands mute of malice" in the repealed clause are replaced by "wilfully refuses to plead."

This clause is taken from 7 & 8 Geo. IV. c. 28, ss. 1 & 2 of the Imperial statutes.

Formerly, to stand mute was to confess, and, if the defendant stood mute of malice, he was immediately sentenced. In the case of R. v. Mercier, 1 Leach, 183, the prisoner being arraigned, stood mute. The court ordered the sheriff to return a jury instanter, to try whether the prisoner stood mute obstinately, or by the visitation of God. A jury being accordingly returned, the following oath was administered to them: "You shall diligently inquire and true presentment make for and on behalf of Our Sovereign. Lord the King, whether Francis Mercier, the now prisoner at the bar, being now here indicted for the wilful murder of David Samuel Mondrey, stands mute fraudulently, wilfully and obstinately, or by the providence and act of God, according to your evidence and knowledge." The jury examined the witnesses in open court, and returned as their verdict that the prisoner stood mute of malice and not by the visitation of God. Whereupon the court immediately passed sentence of death upon the prisoner who was accordingly executed on the Monday following.

A prisoner who had been previously tried and convicted, but whose trial was deemed a nullity on account of someinformality in swearing the witnesses, was again arraigned upon an indictment for the same offence and refused to. plead, alleging that he had been already tried. Littledale,. J., and Vaughan, B., ordered a plea of not guilty to be entered for him: R. v. Bitton, 6 C. & P. 92.

A person deaf and dumb was to be tried for a felony; the judge ordered a jury to be empannelled to try whether he was mute by the visitation of God; the jury found that he was so; they were then sworn to try whether he was able to plead which they found in the affirmative, and the defendant by a sign pleaded not guilty; the judge then

CRIM. LAW-48

ordered the jury to be empannelled to try whether the defendant was now sane or not, and, on this question, directed them to say whether the defendant had sufficient intellect to understand the course of the proceedings to make a proper defence, to challenge the jurors and comprehend the details of the evidence, and that, if they thought he had not, they should find him of non-saue mind: R. v. Pritchard, 7 C. & P. 303.

It seems that where a prisoner who is called on to plead remains mute the court cannot hear evidence to prove that he does so through malice, and then enter a plea of not guilty under this section; but a jury must be empannelled to try the question of malice, and it is upon their finding that the court is authorized to enter the plea: R. v. Israel, 2 Cox, 263.

A prisoner, when called upon to plead to an indictment, stood mute. A jury was empannelled and sworn to try whether he was mute of malice or by the visitation of God. A verdict of mute of malice having been returned the court ordered a plea of not guilty to be entered on the record: R. v. Schleter, 10 Cox, 409.

A collateral issue of this kind is always tried instanter by a jury empannelled for that purpose. In fact there is, properly speaking, no issue upon it; it is an inquest of office. No peremptory challenges are allowed: R. v. Radcliffe, Fost. 36, 40. The jury may be chosen amongst the jurors in attendance for the term of court, but must be returned by the sheriff, on the spot, as a special panel : Dickinson's Quarter Sessions, 481. If the jury return a verdict of "mute by the visitation of God," as where the prisoner is deaf or dumb, or both, a plea of not guilty is to be entered, and the trial is to proceed in the usual way, but in so critical a case great diligence and circumspection ought to be exercised by the court; all the proceedings against the prisoner must be examined with a critical eye, and every possible assistance consistent with the rules of

law given to him by the court: R. v. Steel, 1 Leach 451. In the case of R. v. Jones, note, 1 Leach 452, the jury returned that the prisoner was "mute by the visitation of God." It appearing that the prisoner, who was deaf and dumb, could receive and communicate information by certain signs, a person skilled in those signs was sworn to act as interpreter and the trial then proceeded.

By s. 737, post, it is provided for the case where an accused is insane: see R. v. Berry, 18 Cox, 189. Formerly, after the prisoner had pleaded "not guilty," he was asked by the clerk: "How wilt thou be tried?" To have his trial he had to answer, if a commoner, By God and the country:" "if a peer, "By God and my peers." If he refused to answer, the indictment was taken pro confesso, and he stood convicted: 4 Blacks. 341.

Plea of guilty allowed to be withdrawn: R. v. Huddell, 20 L. C. J. 301. See R. v. Brown, 1 Den. 291, and cases there cited; also, Kinloch's case, Fost. 16.

SPECIAL PROVISIONS IN TREASON.

658. 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. 7 Anne, c. 21, s. 11. 6 Geo. IV. c. 50. 39-40 Geo. III. c. 96. 5 & 6 V. c. 11 (Imp.).

See R. v. Frost, 2 Moo. 140; R. v. Burke, 10 Cox, 519.

PART LI.

TRIAL.

659. 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. 6-7 Wm. IV. c. 114 (Imp.).

See remarks under the two next sections.

PRESENCE OF THE ACCUSED AT TRIAL.

660. 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.

Sub-section 2 is new as to offences heretofore known as

felonies.

The defendant should in all cases, as a general rule, appear in person to plead and to receive his sentence. In cases where the punishment may be for more than five years, (see s. 668) the court will probably not allow the defendant to be out of court, except for grave reasons, and under particular circumstances. A defendant should submit to the jurisdiction of the court and appear in person before his plea can be received: R. v. Maxwell, 10 L. C. R. 45.

The following cases on the practice may serve as guides in the future notwithstanding the change introduced by s-s. 2 of s. 660.

A prisoner charged with felony, whether he has been on bail or not, must be at the bar, viz., in the dock during his trial, and cannot take his trial at any other part of the court, even with the consent of the prosecutor: R. v. St. George, 9 C. & P. 483. A merchant was indicted for an offence against the Act of parliament prohibiting slavetrading (felony). His counsel applied to the court to allow him to sit by him, not on the ground of his position in