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the case to them, and then calls the witnesses to prove it. As to the examination, cross-examination, and re-examination of witnesses, they belong more properly to a treatise on evidence; and I have treated of them so fully in other works, and of the rules by which they are regulated, that I must refer the reader to them for the law upon these subjects. If there be no counsel for the prosecution, the prosecutor has no right to address the jury as counsel, particularly if he is to be examined as a witness himself in the course of the trial. R. v. Brice, 2 B. & Ald. 606.

R. v. Milne, Id. 606 n.

Each witness is sworn in this form :-"The evidence you shall give to the court and jury sworn, between our sovereign Lady Queen and the prisoner at the bar [or defendant], shall be the truth, the whole truth, and nothing but the truth: so help you God."

The prosecutor is not bound to call all the witnesses on the back of the bill; but he must have them in court, in order that the prisoner may examine any of them whose evidence he may require. If the prisoner call them, however, he makes them his witnesses. Per Alderson, B., in R. v. Woodhead, 2 Car. & K. 520, and stated to be the rule then lately laid down by the judges. On the other hand, the prosecutor is not confined to the evidence which was adduced before the committing magistrates, but at the trial he may call such other witnesses, and give such other evidence as he may think proper. R. v. Ward, 2 Car. & K. 759.

In one case, R. v. Crowhurst, 1 Car. & K. 370, which was an indictment for stealing a piece of wood, it appeared that when it was found in the prisoner's possession, he said he had bought it of one Nash, who lived about two miles off; but Nash was not called as a witness for the prosecution: Alderson, B., laid it down as a general principle, that where a man, in whose possession stolen property is found, gives a reasonable account how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person,-it is incumbent on the prosecutor to show that such account is false. And in a more recent case, Lord Denman, C. J., said that he agreed with Mr. Baron Alderson, in what he had stated on that occasion, and that the case was correctly reported. R. v. Smith, 2 Car. & K. 208. Before the case above mentioned, however, it was the

chievous economy: it may save some money to the county or borough fund; but it must tend to lower the sense the people entertain of the fair, the impartial manner in which justice is really administered to them, and create a distrust where there should be, and there deserves to be, unbounded confidence. I hope and

trust this practice, which I most
heartily deprecate, will soon cease
to exist.

* Examination, Arch. Pl. & Ev.
Civ. Act. 481. 1 Arch. N. P. 33.
Cross-examination, Arch. Pl. & Ev.
Civ. Act. 485. 1 Arch. N. P. 88.
Re-examination, Arch. Pl. & Ev.
Civ. Act. 488. 1 Arch. N. P. 40.

E

generally received opinion, that if a person set up that defence, either before the magistrate or at the trial, it was his duty to produce the witness to prove it, or if he were too poor to do so, the magistrate should send for the person named, and examine him if the prisoner wished it. However if the account given by the prisoner be not a reasonable one,-if for instance he say on one occasion that he bought the article, and on another that he and two others found it hid in a hay rick, R. v. Dibby, 2 Car. & K. 818, or the like,—this will impose no such burden on the prosecutor.

Case stated and evidence for the defence.] The defendant in all cases has, and at all times had, a right to address the jury in his defence. In misdemeanors he always was and still is allowed to do this by counsel. In high treason he was first allowed to do so, by stat. 7 & 8 W. 3, c. 3, s. 1; which adds, that"in case any person or persons so accused or indicted shall desire counsel, the court before whom such person or persons shall be tried, or some judge of that court, shall and is hereby authorized and required immediately, upon his or their request, to assign to such person and persons such and so many counsel, not exceeding two, as the person or persons shall desire, to whom such counsel shall have free access at all reasonable times." And by stat. 6 & 7 W. 4, c. 114, s. 1," all persons tried for felonies 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, or by attorney in courts where attornies practise as counsel." If however the defendant wish to address the jury, and to examine and cross-examine witnesses, he will of course be allowed to do so, and his counsel will be allowed to argue any points of law that may arise in the course of the trial, and to suggest questions to him for the cross-examination of the witnesses. R. v. Parkins, Ry. & M., N. P. C. 166. But he cannot have counsel to examine and cross-examine the witnesses, and reserve to himself the right of addressing the jury. R. v. White, 2 Camp. 98.

As to the defendant's right to have a copy of the depositions, see ante, p. 51.

Witnesses in reply.] If the defendant set up any defence, and call witnesses to prove it, the prosecutor may then give evidence in reply. This evidence must be strictly confined to the defence: the prosecutor will not be allowed to wander from that, even for the purpose of giving evidence on the original charge. Where upon an indictment for larceny, the prosecutor rested his case upon the prisoner's recent possession of the goods; the prisoner set up as a defence, that he bought the goods of J. T., and he called a witness to prove it; the prosecutor then proposed to call J. T. to prove, not only that he

did not sell the goods to the prisoner, but that he saw the prisoner steal them: it was holden however that he could not do this, but must confine his evidence to the defence merely. R. v. Stimpson, 2 Car. & P. 415, and see R. v. Hilditch et al., 5 Car. § P. 299. R. v. Powell, Car. & M. 500.

Upon the plaintiff calling witnesses in reply, the defendant's counsel has a right again to address the jury, confining his observations however to the witnesses so called, and the testimony given by them. And the prosecutor's counsel is then entitled to the general reply.

Reply, &c.] The attorney-general, when prosecuting for the crown, has the privilege of replying, although no evidence have been given or witnesses called for the defendant; By the Judges, 2 Car. § K. 636 n.; and this, even upon the trial of collateral issues. R. v. Radcliffe, 1 W. Bl. 3. And so has any other counsel representing him. R. v. Gardner, 2 Car. & K. 628. In other cases, the counsel for the prosecutor is entitled to the general reply, upon the entire case, if the defendant call and examine witnesses; but if the witnesses be merely to character, the counsel for the prosecution seldom avails himself of this privilege. In one case, where the counsel for a defendant upon the trial of an indictment for a misdemeanor, opened new facts in his address to the jury, but afterwards declined to call witnesses to prove them, it was holden that the counsel for the prosecution was entitled to the general reply. R. v. Bignold, 4 D. & R. 70. But this has since

been frequently ruled otherwise at nisi prius.

Adjournment of the trial.] If the trial cannot be concluded in one day, the court will adjourn it to the next day, or if that happen to be Sunday, to the Monday, until the trial is completed. And in the meantime, in treason and felony, the court order the sheriff to provide proper accommodation for the jury at some tavern or other place; and a bailiff is sworn thus: "You shall well and truly keep this jury, and neither speak to them yourself, nor suffer any other person to speak to them, touching any matter relative to this trial: So help you God." See R. v. Stone, 6 T. R. 530. R. v. Hardy,

24 How. St. Tr. 414. 572. And the undersheriff and bailiff accompany them the next morning to court, and take care to have them there at the time appointed. But upon the trial of a misdemeanor, it is not usual to keep the jury thus together, but they are allowed to depart to their respective houses or lodgings, with a caution, however, to attend in court punctually at the time to which the trial is adjourned, and in the meantime not to hold communication with any person upon the subject of the trial. See R. v. Kinnear, 2 B. § Ald. 462.

Summing up.] After the case has been closed on both sides, the judge at the assizes, or the chairman or recorder at sessions, then sums it up to the jury. He first states the substance of the charge against the prisoner; he then, if necessary, explains to them the law upon the subject; he next reads the evidence which has been adduced in support of the charge, making occasionally such observations as may be necessary to connect the evidence, to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defence, and the evidence given on the part of the defendant; and he usually concludes by telling the jury, that if, upon considering the whole of the evidence, they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt, and acquit him.

It may be necessary to state, that a bill of exceptions will not lie; it is never allowed in a criminal case. See R. v. Preston-upon-the-Hill, Burr. S. C. 77, 2 Str. 1040.

In what cases the court have a power of amending at the trial, see ante, pp. 99, 100.

As soon as the summing up is concluded, the clerk of arraigns, or clerk of the peace, says to the jury,—“ Gentlemen, consider of your verdict." The jury accordingly consult with each other upon the subject.

SECTION III.

Verdict.

Retiring of the jury.] If the jury find any difficulty in coming to a conclusion, and wish to retire to the jury room for the purpose of discussing the matter more freely in private, they may intimate their wish to the clerk of arraigns or clerk of the peace; and the crier of the court will then swear a bailiff to attend them, thus :-" You shall swear that you will keep this jury, without meat, drink, or fire, (candle light only excepted ;) you shall suffer none to speak to them; neither shall you speak to them yourself, but only to ask them whether they are agreed upon their verdict: So help you God."

After the jury have thus retired, they may come back for the advice or opinion of the court upon any point; or they may request the judge, chairman, or recorder, to read over to them again any particular part of the evidence; or they may get the court to ask any particular question of the witnesses. All this, however, must be done in open court.

In what cases the jury may be discharged.] The general rule is, that the jury must be kept together from the time they are first charged with the prisoner or defendant, until they deliver their verdict, unless the prisoner consent to their being

discharged. 2 Hawk. c. 47, 8. 1. But cases occur, in which the judge from necessity is obliged to discharge them. If they cannot agree upon their verdict, and they appear not likely to do so, the judge, chairman, or recorder, in the exercise of his discretion, may discharge them, as soon as it becomes a matter of necessity, of which he is to judge; R. v. Newton, 13 Shaw's J. P. 666; and he usually discharges them, after they have been one night locked up in their jury room, deliberating on their verdict. Where a jury retired to consider of their verdict between one and two in the afternoon, and were locked up all night, and being brought into court the next morning, declared that there was no likelihood of their agreeing, the judge discharged them, the business of the assizes being over, and the commission opened for the next county on the circuit: the court of Queen's Bench held, that he had properly exercised his discretion in doing so. R. v. Newton, supra. But this discharge of the jury has no effect on the prisoner; he has no right on that account to be discharged, but must, if in custody, remain imprisoned until another jury can be charged with him, R. v. Newton, supra, unless in the meantime he be bailed.

There are other cases, also, where from necessity the judge is obliged to discharge the jury. Where during a trial for murder, one of the jury was seized with a fit, and was carried out of the court in a state of insensibility; and after the court had waited some time, it was deposed on oath that he was not in a fit state to return immediately: Lawrence, J., discharged the jury, and ordered another jury (consisting of the remaining eleven jurors, and a twelfth from the jury panel) to be sworn; and the prisoner was thereupon tried, convicted, and executed. R. v. Scalbert, 2 Leach, 620. The same also occurred before Wood, B., in 1812, upon the trial of one Edwards, for maliciously shooting, and the point being reserved for the opinion of the judges, they were unanimously of opinion that the judge had acted rightly. R. v. Edwards, R. & Ry. 224, 3 Camp. 207, 4 Taunt. 309. So where a defendant, in the case of a misdemeanor, became so ill, that he could not remain at the bar, the judge discharged the jury; and afterwards during the same assizes, upon his recovery, another jury were charged with him, and the whole of the proceedings were commenced de novo. R. v. Streek, 2 Car. & P. 413. So, where on a trial for manslaughter, it was discovered, after the swearing of the jury, that the surgeon who had examined the body was absent upon the prisoner requesting that the jury should be discharged, they were accordingly discharged, and the prisoner was tried on the next day by another jury. R. v. Stokes, 6 Car. & P. 151. And upon a trial for high treason, where after the jury was sworn, it was intimated by one of the judges, that the defence the prisoners intended to set up, could not be given in evidence under the general issue that was

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