Imatges de pàgina

rities are at variance. — 1 Phil. Ev. 266; Arch. 141; 3 Carr. & P. 240, 589.

The credit of a witness may be impeached by calling evidence to show his general want of veracity; but evidence cannot be given against him of particular transactions.— Ibid.; 1 Phil. Ev. 276.

No one can be allowed to discredit his own witness by impeaching his character; but if on his examination his evidence proves unfavorable, the party may call other evidence to disprove the facts his witness has affirmed.— 1 Phil. Ev. 293, 294

The counsel, or attorney, or solicitor of the defendant, who in that capacity has become acquainted with any fact under the sanction of professional confidence, cannot be compelled to disclose it as a witness; nor will he even be suffered to do so.— Ibid. 134.

But this does not extend to any other than a legal adviser, and therefore not to physicians, &c.—Ibid. 135.

By 9 Geo. IV. c. 15, judges at nisi prius and courts of oyer and terminer and general gaol delivery are empowered to amend the record upon which any trial may be pending in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence and the recital or setting forth thereof upon the record.

When the evidence for the prosecution is closed, the judge calls on the defendant for his defence.— 1 Chitty, Cr. Law, 623.

Where the defendant calls any witness for the defence, the counsel for the prosecution has a right to address the jury in reply, but (in general) not otherwise.—Ibid. 627.

The defendant's calling witnesses, only to impeach the competency of the prosecutor's witness, will not let in a reply.—Ibid. 628.

In crown prosecutions the attorney or solicitor general has a right to reply, whether the defendant calls evidence or not.—Ibid.

If during the trial the prisoner be taken so ill that he is incapable of remaining at the bar, the judge will discharge the jury; and on his recovery, another jury may be returned. 2 Car. & Payne, 413.

When the evidence on both sides is closed, or after any evidence has been given, the jury cannot be discharged, unless in case of evident necessity, till they have given in their verdict; but are to consider of it, and deliver it in open court. But the judges may adjourn while the jury are withdrawn to confer; and may return to receive the verdict in open court.—4 Bl. Com. 360.

The verdict must be unanimous.—2 Hale, P. C. 297.

When a criminal trial runs to such length that it cannot be concluded in one day, the court by its own authority may adjourn till the next morning. But the jury must be somewhere kept together, (at least in a capital case,) that they may have no communication but with each other.— 6 T. R. 527.

In cases, however, of misdemeanor the separation of the jury on such adjournment, does not vacate the verdict.— 2 Barn. & Aid. 462.

In general the assent of all the jury to the verdict pronounced by the foreman in their presence and hearing, is to be conclusively inferred; but if all the jury were not within sight at a verdict of guilty, and it is therefore uncertain whether they all heard the verdict, it seems the court will (in a case of misdemeanor) grant a new trial at instance of the defendant.—2 Stark. Rep 111.

The verdict may be either general (" guilty" or "not guilty,") or special, setting forth all the circumstances of the case, and praying the judgment of the court; whether, for instance, on the facts stated, the case be murder, manslaughter, or no crime at all.—4 Bl. C. 361.

In all cases they have a right, if they please, to find either general or a special verdict.— 1 Chitty, Cr. Law, 637, 642.

Where an indictment for felony includes a felony of inferior degree, the jury may acquit the defendant of the higher crime, and convict him of the less. Thus, on an indictment for murder, he may be convicted of manslaughter; and on an indictment for robbery, of simple larceny.—2 Hale, P. C. 302.

On a verdict of not guilty, the prisoner is for ever quit of the accusation; and, upon such acquittal, or upon discharge for want of prosecution, shall be immediately set at large, without payment of any fee to the gaoler.—14 Geo. III. c. 20.

But if the jury find him guilty, or if he confesses the crime, and the confession be thereon recorded without trial, he is, in either case, said to be convicted.

By 7 Geo. IV. c. 64, s. 22, the court before which any person shall be prosecuted or tried for any felony, is hereby authorized and empowered, at the request of the prosecutor or other person who shall appear on recognizance or subpoena, to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor shall incur in preferring the indictment, and also payment to the prosecutor and witnesses for the prosecution, of such sums of money as to the court shall seem reasonable and sufficient to reimburse such prosecutor and witnesses for the expenses they shall have severally incurred in attending before the examining magistrate or magistrates and the grand jury, and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time therein. And although no bill of indictment be preferred, it shall still be lawful for the court where any person shall in the opinion of the court bona fide have attended the court in obedience to any such recognizance or subpoena, to order payment unto such person of such sum of money as to the court shall seem reasonable and sufficient to reimburse such person for the expenses which he or she shall have bona fide incurred by reason of attending before the examining magistrate or magistrates, and by reason of such recognizance or subpoena, and also to compensate such person for trouble and loss of time; and the amount of the expenses of attending before the examining magistrate or magistrates, and the compensation for trouble and loss of time therein shall be ascertained by the certificate of such magistrate or magistrates granted before the trial or attendance in court, if such magistrate or magistrates shall think fit to grant the same, and the amount of all the other expenses and compensation shall be ascertained by the proper officer of the court, subject nevertheless to the regulations to be established in the manner thereinafter mentioned.

By s. 23, the courts may order payment of the expenses of prosecutors and witnesses in indictments for misdemeanor in like manner as in felony, in the following cases,— where any person shall be indicted of any assault with intent to commit felony, of any attempt to commit felony, of any riot, of any misdemeanor for receiving stolen property, knowing the same to have been stolen, of any assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer, of any neglect or breach of duty as a peace officer, of any assault committed in pursuance of any conspiracy to raise the rate of wages, of knowingly and designedly obtaining any property by false pretences, of wilful and indecent exposure of the person, of wilful and corrupt perjury or subornation of perjury.

And though no indictment is preferred, the bona fide attendance in court is to be allowed for, as in case of felony.

But it is provided that in cases of misdemeanor, the power of ordering the payment of expenses and compensation, shall not extend to the attendance before the examining magistrate.

By s. 2A, the order for payment is directed to be made out by the proper officer of the court, and paid by the county treasurer.

By s. 25, the mode is regulated for payment of expenses in places not contributing to the county rate.

By s. 26, the justices at quarter sessions are empowered to regulate the expenses.

By s. 27, in cases of prosecution in the admiralty jurisdiction, the court may order payment of expenses and compensation to prosecutors and witnesses, in like manner as in other courts, but to be paid by the assistant to the counsel for the admiralty and navy instead of the county treasurer.

By s. 28, the courts may order compensation to parties who have been active in the apprehension of certain offenders as therein described.

By s. 29, the sheriff is authorized to pay such order, and is to be reimbursed by the treasury.

By s. 30, if any man is killed in attempting to apprehend any such offenders as mentioned in s. 28, the court may order compensation to his family.

By 4 & 5 W. & M. c. 18, if the prosecutor on an information filed by the master of the crown office, does not try within a year after issue joined, or if the defendant be acquitted by verdict, or a nolle prosequi be entered, the Court of King's Bench are authorized to award costs to the defendant, unless the judge before whom it is tried, certifies in open court, on the trial, that there was a reasonable ground for the prosecution.—1 Chitty, Cr. Law, 871.

On informations ex officio no costs are paid on either side.—Ibid. 848.

By 7 & 8 Geo. IV. c. 29, s. 57, if any person guilty of any felony or misdemeanor under that act, in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, (as to " valuable security" vide supra, p. 168,) or other property whatsoever, shall be indicted for any such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representatives, and the court before whom any such person shall be so convicted shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner. Provided always that if it shall appear before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negociable instrument, shall have been bona fide taken or received by transfer or delivery, by some person or body

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