the prisoner is to apply for a pardon (u). And sometimes the jury are requested to reconsider it, when it is manifestly against evidence; but in these last instances the interference requires great caution, and the jury may always persist in an absolute finding, however contrary to the opinion of the court. When they have finally delivered such verdict as can in point of law be received, the officer proceeds to ask the same question as to other prisoners (if there are any) included in the charge; and having received their answers in like manner, severally addesses them,

"Hearken to your verdict, as the court records it; you say A. B. is guilty, (or, 'not guilty') of the felony whereof he stands indicted; (and so of the others, if more than one) that is your verdict, and so you say all."

The verdict is, at the same time, recorded by the officer on the indictment.

Protection of Jurors.]-Jurors are not now punishable, except for gross acts of misconduct, as casting lots or tossing up for a verdict (u), or for actual corruption. Of the verdict itself they are the sole and absolute judges; if they return it in a legal form, the court must receive it; and unless they are guilty of embracery or indecent conduct, they can never be questioned civilly or criminally on account of their decision. The proceeding by writ of attaint for false verdict has long fallen into disuse. And by the recent act regulating the law of juries, it is entirely abolished (x); but with a proviso, "that every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and punished by fine or imprisonment, as every such person and juror might be before the passing of this act (y).

Effect of Verdict in Criminal Cases.]—A conviction, however, contrary to the opinion of the court at sessions, cannot be set aside; for the justices have no power, like the court of queen's bench, to grant a new trial on the merits, except the trial has been void for irregularity (z); though they may request the jury to reconsider the verdict, and where the punishment is discretionary, they may mark their opinion of the case by passing a nominal sentence, or may recom

(u) R. v. Suffolk (Justices), 5 N. & M. 139; 3 id. Mag. Cas. 221.

(x) 6 G. IV. c. 50, s. 60.

(y) Ibid. s. 61.

(z) Per Denison, J., 1 Burr. R. 572;

speaking, however, of an inferior court, which a quarter sessions is not, ante, p. 63; and see R. v. Smith, 8 B. & Cr. 343, and the cases cited 2 Tidd, Prac. 9 ed. 905.

mend the party to the crown, through the secretary of state, as a proper object of pardon, unless judgment, quod eat sine die, is respited (a). A verdict of acquittal, when returned on a valid indictment, is always conclusive when pleaded in bar to any subsequent indictment for the same charge; but does not prevent a party from being afterwards indicted on another charge having reference to the same transaction. Thus, if a party be acquitted of a felony, on the ground that the proof only sustains a charge of misdemeanour, he may afterwards be tried on a bill found for the misdemeanour, and vice versa. A new trial of the same indictment is never granted by any court after a verdict of acquittal (b). Even on indictments for not repairing roads and bridges, which are substantially civil proceedings, the utmost the court of queen's bench will do after acquittal, is to suspend the judgment until after the trial of another indictment, in order to prevent the acquittal from being given in evidence at such subsequent trial to disprove the liability of the parties acquitted (c). Acquitted prisoners may, it seems, be detained till the grand jury is discharged. Prisoners against whom no bill is preferred or found, are discharged at the end of the sessions by proclamation (d).

"Conviction and attainder," says Blackstone, "are frequently, through inaccuracy, confounded together" (e). "Attainder" is only where judgment of death or outlawry is given (f). Whereas, "con

(a) See R. v. Parry and others, ante. (b) R. v. Reynell, 6 East, R. 315; see R. v. Parry and others, 7 C. & P. 836.

(c) R. v. Wandsworth, (Inh.), 1 B. & A. 63; Reg. v. Challicombe, 6 Jurist, 481, Q. B. 1842.

An acquittal is never conclusive evidence for the party acquitted, for it concludes no fact as a conviction does, 12 East, 410; Bul. N. P. 245; 3 Mod. 164; Peake, C. N. P. 288, 2nd edit. R. v. St. Pancras. See 1 B. & Ald. 63.

(d) Ante, p. 193. But when a prisoner was acquitted after the grand jury was discharged, Littledale, J., refused to detain him till articles of the peace could be exhibited against him, 7 C. & P. 518, R. v. Holt.

An indictment had been found at the Summer Assizes in 1840, against H. the clerk of the course at Ascot, for a misdemeanour in keeping a gaming-booth there. He continued at his old residence, and in 1844 was first taken on a judge's warrant, founded on the indictment, and gave bail to appear at the next assizes

and there plead to the indictment and

take his trial. He appeared there, and showed by affidavit that the prosecutor could not be found, so as to be served with notice of trial. Held, that though defendant had never traversed, he could not be acquitted, as no notice of trial had been given; but on his surrendering to prison immediately before the end of the assizes, Mr. Serjeant Atcherley, after consulting Tindal, C. J., directed the prosecutor and witnesses to be called three times, and they not answering, ordered the defendant to be discharged by proclamation, and that he should not be called upon to enter into any fresh recognizance, Reg. v. Hibburd, C. & K. 461, Tindal, C. J., and Atcherley, Serjt. The like, had defendant been taken and imprisoned on a bench warrant and never given bail.

(e) 4 Comm. 381.

(f) Co. Lit. 389, 391, n.; Litt. sect. 745; Cro. Car. 566; 4 Bla. C. 387; 1 Chit. Cr. L. 1st ed. 723; 3 Inst. 19, 21; Com. Dig. tit. Forfeiture, R. v. Haddenham, post.

viction" is altogether distinct from even "judgment," which may or may not follow on it (g). Forfeiture of a felon's goods to the crown follows on his conviction (h); but as to lands, even attainder of felony, except in high treason or murder, which last now includes petty treason (i), disinherits no heir and prejudices no title to land, except perhaps the offender's for his life or during the king's an jour et wast (j).

If a judgment of a court of quarter sessions is bad for excess, e. g. in sentencing a convict to fourteen instead of seven years' transportation, it is bad in toto, and will not operate as a good sentence of transportation for seven years, nor will it be amended by the court of queen's bench or sent back to the sessions for that purpose, but will be reversed on writ of error and the prisoner discharged (k). This was the result of a case in 1837, where three prisoners tried and convicted of burglary at the Monmouthshire quarter sessions were incorrectly sentenced there, two of them to transportation for life, and the third for seven years instead of being sentenced to death, as then provided by 7 & 8 G. IV. c. 29, s. 14 (7) which might have been at that time recorded under 4 G. IV. c. 48, s. 2, so as to be equivalent to pronouncing it (m).

SECTION XV.

OF JUDGMENT AND DISCHARGE.

ON plea by the party charged, or verdict by the jury of guilty, the party charged is said to be convicted of the crime whereof he stands

(g) 4 Bla. C. 329, 362. "Conviction is a verbum equivocum :" see per Tindal, C. J., Burgess v. Boetefour and Brown, 13 L. J. (C. P.) 122, 126.

(h) 2 Bla. C. 421; 4, id. 387; Hawk. B. 2, Ch. 49, s. 14. See Shelford's Acts relating to Real Property, 4th ed. 467.

(i) 9 G. IV. c. 31, s. 2.

(j) See R. v. Bridger, T. & Gr. 437; 1 M. & W. 145, S. C.; 54 G. III. c. 145; Doe d. Evans v. Evans, 5 B. & Cr. 584; Morewood v. Wilks, 6 C. & P. 144.

In Shakespear's Henry IV. part I., Richard Plantagenet is reminded of the Earl of Cambridge, his father's

"attainder in the late king's days," and replies;

"My father was attached, not attainted," though, as might be expected in those

early times, condemnation or judgment on
which attainder was consequent, quickly
followed, the next line being,
"Condemned to die for treason, yet no
traitor."

(k) R. v. W. H. Ellis, 8 D. & R. 173; 5 B. & C. 395, S. C.; Reg. v. Silversides, 3 Q. B. R. 406; 1 G. & D. 617, S. P.

(1) Bourne and two others v. the King (in error), 7 Ad. & E. 58; also reported as the King v. Bourne and others, 2 N. & P. 248.

(m) 7 Ad. & E. 63. Burglary either with or without violence, 7 W. IV. & 1 Vict. c. 86, s. 2, 3, being punishable either with death or transportation for life is no longer cognizable at sessions, see ante, p. 157.

indicted (n). On that conviction judgment may or may not follow (o). The convicted party, if present in court, may now be called on to say whether judgment should not be passed on him. If any errors appear on the face of the indictment, this is the time for him to move the court to arrest (or stay) the judgment (p), or may offer something in extenuation of his offence. If the court thinks the indictment bad, the judgment may be suspended, so that another and amended bill may be preferred (q), to which, if found, the prisoner must plead, though at a subsequent session, if the prior session has been properly adjourned (r).

Sentence or Adjournment for time to inquire]-Sentence is usually passed immediately, or at all events during the sessions, but if at the end of the sessions the court has still doubt respecting the application of the law to the fact, or of the fact to the indictment, or wishes time to examine the circumstances of the offence and the character of the offender, the sessions should be adjourned to some future day, before or not later than that on which the next sessions would be held, in order to give opportunity for consultation and more matured advice or inquiry, as the case may require (s). If any criminal pleading subsequent to the indictment in misdemeanour, or, as it seems, in felony not capital, concludes with an improper prayer of judgment, as, that the defendant may answer over, where it should have been a prayer of final judgment against him, the court is not bound by it, but will give such judgment as by law ought to be given (t). In the event of an adjournment, however, the manner of disposing of the defendant, during the interval, will depend on the nature of the offence of which he has been convicted, and the situation in which the course

(n) 4 Bla. C. 362. 329.

(0) Ibid. see 13 L. J. (M. C.) 125; and Sutton v. Bishop, 1 W. Bla. 665; 4 Burr. 2283, S. C.

(p) 4 Bla. Comm. 375.

(g) Ibid. 3 Bla. C. 407, ante, p. 479, n. (r) Reg. v. Goddard, Ld. Ray. 920. A person was indicted for a misdemeanour in fixing a lighted candle in a closet, under certain wooden stairs in the house of J. R., of which house he the prisoner was then possessed for a certain unexpired term, and for putting matches about and against the said lighted candle, with a wicked and malicious intention, by means thereof then and there feloniously to set fire to the aforesaid house of the said J. R., and to burn and con

sume the same. It was objected in arrest of judgment, that alleging the act to be done feloniously, made it necessary to prove a felony; which the possession of the house by the prisoner prevented. But Lord Mansfield and the court rejected the word feloniously as surplusage, and repugnant to the legal import of the offence charged, and gave judgment against the defendant for the misdemeanour of which he had been in fact convicted; R. v. Scofield, East's P. C. 1028; R. v. Holmes, id. 1023.

(8) Ante, p. 74. Post, Ch. XII.

s. 4.

(t) R. v. Josiah Taylor, 3 B. & Cr. 512. See Street v. Hopkinson, Stra. 1055; Cas. t. Hard. 345.

of the proceedings previous to trial may have placed him. If he has been in custody, he will in general be recommitted to custody; whereas, if he has been out on bail, he will, generally, be allowed to enter into a new recognizance to appear at the period of adjournment, or when called on to receive judgment. It is scarcely necessary to add, that this delay of sentence being a forbearance in favour of the prisoner, whether it be in compliance with his solicitation, or emanate immediately from the court, it would not be compatible with the claims of justice to place the security of his person for receiving the judgment of the law upon a more precarious foundation after verdict, than it was before; and that, in the circumstances under contemplation, some reference is due to the application of the prosecutor, as well as to the opinion of the court, respecting the recognizances by which the liberation of his person may be justified (u).

Passing Sentence.]—In cases of felony, the prisoner is placed at the bar, and the sentence is pronounced by the chairman; and formerly, at whatever period the judgment of the court in case of felony was to be given, proclamation was made as follows, by the crier of the court :

"Oyez, Oyez, Oyez, all manner of persons are commanded to keep silence whilst judgment is given against the prisoner at the bar, upon pain of imprisonment." But in modern times it is in general omitted at quarter sessions after sentence is passed, though the court may alter its amount during the same sessions, they are no longer bound to arrest the judgment for any error apparent on the face of the indictment or subsequent pleading; and will, in general, leave the defendant to his writ of error (x).

Punishment of Felonies by Transportation-Imprisonment-Solitary Confinement-Hard Labour-Whipping.]-The punishment of a felony less than capital is now, in all cases, that prescribed by the statute or statutes specially relating to it (y); and is awarded in terms by sentence passed by the court after conviction. The benefit of clergy was abolished in 1827 (z); as was the distinction between grand and petty larceny and every larceny is now subject to the same incidents as grand larceny (a). The punishment for simple larceny or for any felony made punishable like it by 7 & 8 G. IV. c. 29, may, in the dis

(u) Whether if a verdict is uncertain, a venire facias should go, is discussed in R. v. Huggins, 3 C. & P. 414.

(a) See 6 East, 328; 1 M. & Sel.

442; 1 Chit. Cr. L. 1st ed. 663.

(y) 7 & 8 G. IV. c. 28, s. 8.
(z) 7 & 8 G. IV. c. 28, s. 6.
(a) 7 & 8 G. IV. c. 29, s. 2.