CHAPTER VII.

OF THE PROCEEDINGS TO JUDGMENT IN THE COURT OF QUARTER SESSIONS UPON INDICTMENTS:-INCLUDING EVIDENCE, AND THE CONDUCT OF THE TRIAL.

SECTIONS.

I.-Of Compromise (or speaking with the Prosecutor) with the Sanction of
the Court, p. 456.

II.-Of Demurrers, Pleas, and Variances in Indictments, p. 457.
III.-Of Traverses and other Postponements of Trial, p. 461.

IV.-Of Arraignment, Challenge, and other Preliminaries to Trial, p. 473.
V.-Of the Parts of a Charge which must be supported by Proof, p. 500.
VI. Of the Degree of Proof required to substantiate a Charge, p. 503.
VII.-Of the Kind of Proof by which a Charge must be supported, p. 505.
VIII. Of confining the Evidence to a single Felony; and herein of Election by
Prosecutor, p. 511.

IX. Of the Necessity of producing the best Evidence, p. 515.

X.-Of Documentary Evidence, p. 518.

XI.-Of the Competency of Witnesses, p. 531.

XII.-Of Calling and Examining Witnesses, p. 544.

XIII.-Of the Defence, Reply, and Summing up, p. 555.

XIV. Of the Deliberation and Verdict of the Jury, p. 570.

XV.-Of Judgment and Discharge, p. 577.

HAVING thus considered the offences usually taken cognizance of at the quarter sessions, and the formal statement of them in correspondent indictments, we are now to take a comprehensive view of the proceedings of these courts, from the finding of the indictment by the grand jury to the judgment passed on offenders. These proceedings are, in ordinary cases of felony, had as soon as convenient after each bill is found, and generally on the same day, taking precedence of bills found for misdemeanours. Cases of misdemeanours traversed from a preceding session, or found at the same session, and not postponed by traverse or otherwise, to the ensuing sessions, in the manner pointed out in Section III. of this Chapter, are next heard in like manner; or, very often while the grand jury is engaged in finding the first bill.

SECTION I.

OF COMPROMISE (OR SPEAKING WITH THE PROSECUTOR) WITH THE SANCTION OF THE COURT.

Ir will be proper in the first instance to notice an arrangement which, in cases of common assault, is not unfrequently made under the sanction of the court, in that stage of the prosecution which follows the finding of the bill, so as to render further inquiry needless. This is accomplished by the judicial recognition of an agreement between the prosecutor and the defendant, for the satisfaction of the former in respect of the injury he has personally suffered (a); upon which, in cases where the court see no objection, the defendant pleads guilty; and on the assent of the prosecutor being evidenced either by his own declaration in court, or by affidavit, or the proof of a release from him by the subscribing witness, the court authorizes the arrangement by imposing on the defendant the fine of a shilling, or some other small sum, for the injury done to the public peace (b), and taking his recognizance in 407. to keep the peace for one twelvemonth, or other fixed period.

Prosecutions of this kind are often terminated in this way by the recommendation of the court in different stages of the proceedings; and a like effect is, indeed, very frequently produced after conviction; for it is the common practice in Middlesex, even after judgment and fine set, to allow the defendant to make a private agreement with the prosecutor, by an intimation from the court, that the defendant may speak with him; by which is understood, that a remission of the fine to the king may take place, on a portion of the sum assessed being paid to the prosecutor, as a recompence for his individual wrong.

Sir William Blackstone, after reprobating this practice of permitting the defendant to speak with the prosecutor, as it is termed, unless exercised by the judges in the superior courts of record, says it should never be suffered where the testimony of the prosecutor himself is necessary to convict the defendant (c).

(a) 1 East, R. 159; 4 Burr. 2539. (b) See the distinction taken between dropping a prosecution for a public misdemeanour, and one for private injury to the prosecutor, per Le Blanc, J., 5 East, 303, Edgcombe v. Rodd and others.

(c) 4 Bla. Com. 363. See this passage combated, 1 Ch. Cr. L. 1st ed. 665.

Mr. Dickenson's note submits, that the justices of the peace, being better acquainted with the characters of the

parties living in their immediate neighbourhood, than the judges of assizes can be, who are mostly strangers to the country, are at least as adequate to determine in what instances a practice generally censurable may be occasionally beneficial; and see 11 East, R. 46, 48. He adds, that the termination of a criminal proceeding by making satisfaction to the party more immediately aggrieved, is frequently recommended by the court

SECTION II.

OF DEMURRERS, PLEAS, AND VARIANCES IN INDICTMENTS.

Of Demurrers.]-When the indictment is found, the defendant may, before plea, move to quash it (as to which, see post, p. 477, in Sect. 4 of this Chapter); or may demur; or may plead to it, which is the usual, and commonly the best course.

By demurring, he admits the facts, and contends that they constitute no offence indictable by law. Thus, if an indictment alleges the felonious stealing of a partridge without stating it to be tame or confined, and the prisoner demurs, he must be discharged. A demurrer should be engrossed on parchment, and signed by the prisoner's counsel (d). Demurrers

are, however, hardly known at sessions, and are, indeed, seldom resorted to in the higher criminal courts; first, because they are not allowed for defects which, notwithstanding 7 G. IV. c. 64, s. 20, (p. 196,) remain uncured by verdict (e), and also because in the majority of cases it is better for the prisoner to take his chance of acquittal by the jury (ƒ) on the plea of " not guilty," and reserve any objection to which the indictment may be open for a motion in arrest of judgment, or, after judgment, for a writ of error (g), should a verdict of guilty or the passing of sentence have made either course necessary to him.

However if the fault in the indictment is one of those particular defects which by 7 G.IV.c. 64, s. 20, (ante, p. 196,) is declared to be no longer a ground for "staying or reversing" a judgment, and would accord

of queen's bench: e. g. in charging rules for criminal informations on payment of the costs by the defendant. So, after conviction, it often suggests that the parties should go before the Master with a view to a pecuniary arrangement. However, when sentence is actually passed, it is the constant practice for the crown to give the prosecutor a part of the fine in compensation for his expenses.

(d) In R. v. Bowen, C. & Kir. 501, the form of demurrer was special, "and the said J. B. in his own proper person cometh into court here, and having heard the said indictment read, saith that the said indictment and the matters therein contained in manner and form as the same are therein stated and set forth, are not sufficient in law, and that he the said J. B. is not bound by law to answer the same, and the said J. B. says that the said indictment, and each and every count thereof is insufficient among other things, in this, to wit, that the said

J. B. ineach and every count of the said indictment is indicted for and charged with more than one offence, in that each and every count of the said indictment charges the said J. B. with destroying and also with injuring, and also with defacing, the respective register therein mentioned, and in that the said indictment is otherwise informal and defective; and this he is ready to verify, therefore for want of a sufficient indictment in this behalf, the said J. B. prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified (signed by counsel). As to joinder, see Arch. Cr. Pl. 8th edit. 83.

(e) Per Parke, B., and Coltman, J., York Ass. April, 1843, Reg. v. F. Booth.

(f) 4 Bla. C. 324.

(g) Reg. v. Martin and ux., 8 Ad. & E. 481.

ingly be cured by a verdict of "guilty," a demurrer is the only course by which it can be raised on the record (h).

Though a prisoner in felony has been suffered to demur, and at the same time to plead over to the indictment, to prevent any ground of demurrer being estopped by so pleading (i), defendants cannot do so as of right (k). A judge may suffer a prisoner to withdraw his plea for the purposes of substantial justice, but not to enable him to demur for a mere technical defect (¿).

If a demurrer or replication is to a plea which is on parchment, and not taken ore tenus, the demurrer or replication should be put in on parchment also (m), for which time will be allowed; but the joinder may be ore tenus (n).

Though a court of quarter sessions may quash an indictment, and may entertain and decide on a demurrer or motion in arrest of judgment where one or more of those steps may be taken by a party charged, no objection which may be raised to an indictment by either mode, will be reserved by them as a case for the opinion of the judges, for if so reserved, it will not be noticed (o). Nor would they be so reserved at an assizes; for some of the judges might afterwards be called on to decide the question on a writ of error (p). Though the reason thus given for this rule prevailing at assizes fails at sessions, the position of both courts respecting the subject-matter is the same, owing to the sessions not being competent to reserve a special case (q).

After a demurrer has been decided against the prisoner in a case of felony, he is at liberty to plead over to the merits (r), at least in capital cases (s).

(h) Reg. v. Law, 2 M. & Rob. 197, Alderson, B., per Parke, B., see S. C. 198; Reg. v. Cruse and wife, 8 C. & P. 543, and judgment of Patteson, J., in Reg. v. Rowed, 3 Q. B. R. 186, 187.

(i) Coltman, J., in Reg. v. Philps, 1 C. & Mar. 181, see Reg. v. Adams, id. 299.

(k) Reg. v. Odgers, 2 M. & Rob. 479, Cresswell and Patteson, Js.

(1) Reg. v. Odgers; the defect was the jurors of instead of for our Lady the Queen, &c.

(m) 2 Leach, 715, note; or prisoner might lose any objection to the form of the replication, 1 Ch. Cr. L. 1st ed. 461; Reg. v. Walker, 2 M. & Rob. 450, acc. Parke, B.

(n) R. v. Sheen, 2 C. & P. 634.
(0) See 13 East, 95; the consideration,

however, of a special case, when reserved at assizes, is as much ex gratiá as it could be if so reserved at sessions; see 15 East, 346.

(p) Patteson, J., in Reg. v. Purchase, (Geo.) C. & Mar. 617; Reg. v. Overton, id. 655, superseding R. v. Birchenough, 1 Mood. C. C. 477, quoad hoc.

(q) R. v. Salop (Inh.), 13 East, 95.

(r) Reg. v. Purchase (Geo.), C. & Mar. 617, and see S. P. in case of auterfois acquit or attaint, pleaded and found against prisoner, Vaux's case, 4 Co. 44; 22 Edw. IV. 39, b.; 2 Hale, 248, 394.

(8) Tindal, C. J., in C. & Kir. 503, Reg. v. Bowen, expressed so much doubt whether, after demurrer by prisoner decided against him, he could plead over in cases of felonies not capital, that the demurrer was withdrawn (25 July, 1844).

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But in cases of misdemeanour, the judgment on demurrer, if for the crown, is final, even where the demurrer is by the prosecutor, e. g., to a plea, and the prayer of judgment in the demurrer is by mistake respondeat ouster, (viz., that the defendant may answer over," i. e., plead afresh (t),) for it operates as if the party had been convicted by a jury, which would alone be a sufficient consideration to render his legal advisers cautious in permitting him to demur (u).

On the other hand, if in a case of felony the demurrer is decided in favour of the prisoner, the judgment is not stayed or reversed, but on the contrary, is given in his favour; for 7 G. IV. c. 64, s. 20, (ante, p. 196,) does not, by its words "or otherwise," extend beyond cases in which the application is to "stay or reverse "the judgment (x), nor will the indictment be afterwards quashed at the instance of the prosecutor in order to the preferring a new bill (y).

By pleading to the indictment, a party charged puts in issue the facts of the charge; and cannot afterwards demur, except by leave given in the discretion of the court, e. g., if at the time he pleaded, his counsel already retained was absent (z); but few judges permit an objection to be taken to an indictment after plea and before verdict (a).

Of Pleas.]-Pleas are either in Abatement or Bar:

Pleas in Abatement may be for the omission of the addition of the defendant, under the statute of additions; or for misnaming him. At no period could this course much avail him; because he was always obliged, on pleading in abatement, to give his true name or addition, and by that he was concluded; and, as he might be immediately indicted anew, or detained for indictment at the next sessions, he could

N. B.-Reg. v. Purchase (Geo.); Reg. v. Phelps, C. & Mar. 190; Reg. v. Adams, id. 299, had been cited.

(t) R. v. Josiah Taylor, 3 B. & Cr. 502; see Charnley v. Winstanley, 5 East, 266; Le Bret v. Papillon, 4 East, 502, qualified 6 Ad. & E. 409; also 1 B. & Ald. 173; 10 East, 83; Scofield's case, East's P. C. 1028.

(u) See cases cited arguendo, S. C. 3 B. & Cr. 510; Hawk. B. 2, c. 31, s. 7.

(a) see R. v. Holland, 4 T. R.457.

(y) Reg. v. W. Smith, 2 M. & Rob. 109, per Coleridge, J. and see R. v. Lookup, 3 Burr. 109. However Reg. v. Richmond, 1 C. & Kir. 240, where the first indictment was held bad on de

murrer, because it did not charge any felony within the act, proceeded on a fresh bill charging such a felony; and Rolfe, B. refused to suffer the former indictment and judgment to be pleaded to it.

(z) Reg. v. Purchase, 1 C. & Mar. 617, Patteson, J.

(a) See Reg. v. Curnock, 7 C. & P. 730, Gurney, B., Patteson, J., had formerly, before Reg. v. Purchase, (ante, p. 458,) reserved the point rebus sic stantibus, as if it had been taken on demurrer, see Reg. v. Cruse, 8 C. & P. 541, but he has since expressed a different opinion in banc in Reg. v. Rowed, 3 Q. B. R. 186.