66

By 3 Geo. IV. c. 114, the Court may sentence the offender to imprisonment, with hard labour, for any term not exceeding the term for which such Court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offender by any law in force before this act in the following cases: any attempt to commit felony," any " riot," "being an utterer of counterfeit money knowing the same to be counterfeit," "keeping a common gaming house," keeping a common bawdy house," " keeping a common, ill-governed, and disorderly house," "wilful and corrupt perjury," or "subornation of perjury," "having entered any open or inclosed ground with intent there illegally to destroy, take, or kill game or rabbits, and having been there found at night armed with any offensive weapon."

By 11 Geo. IV. & 1 Will. IV. c. 39, s. 7, in cases where the king shall extend mercy to a capital offender, on condition of imprisonment, with or without hard labour, the Court or any judge of the Courts at Westminster, to whom the intention shall be signified, shall allow the offender the benefit of a conditional pardon, and make an order for the imprisonment accordingly.

When the judgment is pronounced it ought to be entered on record.-1 Chitty, Cr. Law, 720.

A defective judgment, omitting an essential part of the judgment required by law, is bad altogether.-4 Mod. 395; Russ. & Ry. 58.

So is an excessive judgment.-5 Barn. & Cres. 395.

In felonies or misdemeanors the Court may alter the judgment during the same term in which it was given, but not afterwards.-6 East, 328; 2 Hawk. c. 48, s. 20; 4 Mod. 395.

The justices at sessions may do so at any time during the sessions, because it is regarded as only one day, but they cannot do so at a subsequent period, unless an adjournment be entered on the roll.-2 Salk. 606; Chitty's Burn, tit. Judgment.

CHAPTER XXVIII.

OF REVERSAL OF JUDGMENT.

A JUDGMENT may sometimes be falsified or reversed without writ of error.

record.

This is where the error is dehors the

Thus if any judgment be given by persons who had no valid commission to proceed, it is void; and may be falsified by showing the special matter, without writ of error, and upon bare inspection.-3 Inst. 231; 4 Bl. C. 390.

So if a man purchases land of another and afterwards. the vendor is either by outlawry or his own confession convicted and attainted of some treason or felony previous to the sale, whereby such land becomes liable to forfeiture-now upon any trial the purchaser is at liberty, without bringing any writ of error, to falsify not only the time of the felony or treason supposed, but the very point of the felony or treason itself. But the vendor himself cannot.-4 Bl. C. 391. A judgment may also be reversed by writ of error.— Ibid.

This is where the error appears on the face of the record.-Ibid.

A writ of error lies from all inferior criminal jurisdictions to the Court of King's Bench, and from the King's Bench to the House of Peers.-4 Bl. C. 391; 2 Barn. & Adol. 971.

A writ of error lies for notorious mistakes in the judgment or other parts of the record. - Ibid.

But as to errors in mere form, see 7 Geo. IV. c. 64, s. 20, above cited, p. 320, 321.

A writ of error is not allowed as of course; but only on leave obtained under the king's sign manual, or from the attorney general. In case of misdemeanor, however, if there is probable ground, the attorney general is bound ex debito justitiæ to grant his fiat. In felony, it is said, that a writ of error is only allowed ex gratia.-4 Bl. C. 392.

The course at the present day is to send a copy of the record, or, at least, of the indictment (when that is defective), together with counsel's opinion as to the insufficiency, to the attorney general, that he may determine whether he will grant his fiat for a writ of error.-1 Chitty, Cr. Law, 749.

The writ is then lodged with the clerk of the peace (in cases at the sessions), or the clerk of assize (in cases at the assizes), who returns it with the proceedings into the Crown Office.-Ibid. 750.

An attainder may also be reversed by act of parliament. -Ibid.

If a judgment pronounced upon a conviction be falsified or reversed, all former proceedings are absolutely set aside, but the party convicted remains liable to be prosecuted another time for the same offence.-Ibid.

CHAPTER XXIX.

OF REPRIEVE AND PARDON.

1. Of Reprieve.

A REPRIEVE is the withdrawing of a sentence for an interval of time, whereby the execution is suspended.-4 Bl. C. 394.

A reprieve may be ex mandato regis, i.e. by the mere pleasure of the crown, expressed to the Court by which execution is to be awarded.-1 Hale, P. C. 368; 2 Hale, P. C. 412; 2 Hawk. c. 51, s. 8.

A reprieve may also be granted ex arbitrio judicis, and this either before or after judgment; as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or favourable circumstances to the prisoner's character appear, and it is wished to give him an opportunity for applying to the crown for pardon. -2 Hale, P. C. 412; 4 Bl. C. 394.

These reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished and their commission expired; but this rather by common usage than of strict right.-Ibid.

When the judge thinks proper to recommend a capital convict for mercy, he reprieves him, and sends a memorial or certificate to the King, directed to the secretary of state's office, stating that from favourable circumstances appearing at the trial, &c. he recommends him to his Majesty's mercy and to a pardon, upon condition of transportation, or some slighter punishment.-4 Bl. C. 404, note by Chr.; sup. pp. 321, 322.

A reprieve may also be ex necessitate legis.

This may be, first, where a woman is capitally convicted,

and pleads her pregnancy, in delay of execution.-2 Hale, P. C. 413; 4 Bl. C. 394.

Pregnancy is no cause to stay the judgment, but it is to respite the execution till she be delivered.-Ibid.

And therefore execution should never be awarded against a woman without asking her what she can say why execution should not be awarded.-2 Hale, P. C. 407.

In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire of the fact; and if they bring in their verdict quick with child, execution shall be stayed generally till the next session, and so from session to session, till either she is delivered, or proves by the course of nature, not to have been with child at all.-Ibid.

Another cause of reprieve ex necessitate legis, is, if the offender become non compos mentis between judgment and the award of execution.-1 Hale, P. C. 370; 4 Bl. C. 395.

Where this is suggested, the judge may swear a jury to inquire whether the prisoner is really insane or not; and if they find that he is, he must be reprieved till the ensuing session.-Ibid.; vide sup. pp. 3, 4, 280.

2. Of Pardon.

The power of pardon is part of the prerogative of the

crown.

By 27 Hen. VIII. c. 24, it is declared that no other person but the king hath power to pardon or remit any treason or felony whatsoever.

The king may pardon all offences, except—

1. The committing any man to prison out of the realm; which is by the Habeas Corpus Act, 31 Car. II. c. 2, a præmunire, unpardonable by the king.

2. A common nuisance while it remains unredressed; though he may afterwards remit the fine.

3. An offence against a penal statute, after a private informer has commenced the action.-4 Bl. C. 398.

By 12 & 13 Will. III. c. 2, the king's pardon cannot be