are unable to agree, the Court may discharge them, in which case the prisoner must be recommitted and tried by another jury.

ARTICLE 295.

VERDICT OF NOT GUILTY.

If the jury return a verdict of not guilty, the Court may direct the prisoner to be discharged if there is no other indictment against him, but he is not entitled, by law, to be discharged until the end of the sittings when his trial takes place.

ARTICLE 296.

VERDICT OF GUILTY.

If the jury return a verdict of guilty in a case of felony, the prisoner is asked whether he has anything to say why sentence should not be passed upon him.

In cases of misdemeanor for which the defendant is indicted in the Court before which he is tried, he may be sentenced immediately upon his conviction.

In either case the prisoner or defendant may move in arrest of judgment on the ground of any defect in the indictment which is not cured by the verdict. If such a motion is successful, the Court will set aside the proceedings and give judgment of acquittal. If no such motion is made, or if, being made, it fails, the Court in all cases, except the case of the trial of records in the High Court (Queen's Bench Division), proceeds to pass sentence either at once, or at such subsequent time during the sittings as it thinks proper.

ARTICLE 297.

CONVICTION ON RECORD FROM THE HIGH COURT (QUEEN'S BENCH DIVISION).

Upon a trial for felony or misdemeanor upon any record

This is the practical effect of 31 Ch. 2, c. 2, s. 7 (the Habeas Corpus Act, 1679). The language is to the effect that if a person committed for trial is not indicted before the end of the sittings for which he is committed he must be discharged.

of the High Court (Queen's Bench Division), the judge before whom the verdict is taken may, upon a verdict of guilty:

(a.) Abstain from passing sentence, and leave the prosecutor to move the Court for judgment at its next sittings, taking bail from the person convicted to appear to receive judgment or committing him to prison, or

1

(b.) 1 Pronounce judgment during the sittings, or assizes, at which the trial is held, as well upon any person who has suffered judgment by default, or confession, upon the same record as upon those who have been tried and convicted, whether such persons are present or not in Court, excepting only where the prosecution is, by information, filed by leave of the Queen's Bench Division, or such cases of information by the Attorney-General, wherein the Attorney-General prays that judgment may be postponed. The judgment so pronounced must be indorsed upon the record of nisi prius, and afterwards entered upon the record in Court, and is of the same force and effect as a judgment of the Court, unless the Court, within six days after the commencement of the ensuing term, grants a rule to show cause why a new trial should not be had, or the judgment amended. And the judge before whom the trial is had, may either issue an immediate order or warrant for committing the defendant in execution, or respite the execution of the judgment upon such terms as he thinks fit, until the sixth day of the ensuing term; in case imprisonment is part of the sentence, he may order the period of imprisonment to commence on the day on which the party shall be actually taken to, and confined in, prison.

ARTICLE 298.

NOT GUILTY ON GROUND OF INSANITY.

2 In all cases where it is given in evidence upon the trial of any person charged with treason, murder, felony, or 3 misdemeanor, that the prisoner was insane at the time of

1 11 Geo. 4, and 1 Will. 4, c. 70, s. 9.

2 39 & 40 Geo. 3, c. 94, s. 1.

3 Effect of 3 & 4 Vict. c. 54, s. 3.

the commission of such offence, and such person is acquitted, the jury must find specially whether such person was insane at the time of the commission of such offence, and declare whether such person was acquitted by them on the ground of such insanity. If they find that such person was insane at the time of committing such offence, the Court before whom such trial is had must order such person to be kept in strict custody, in such manner as to the Court seems fit, until her Majesty's pleasure shall be known.1

ARTICLE 299.

PREGNANCY OF FEMALE PRISONER.

When any woman has been sentenced to death she may say, in arrest of execution, that she is pregnant, whereupon the Court must direct a jury of twelve matrons to be empannelled to try whether or not 2 she be with child of a quick child. If it is found that she is, she must be respited until she is delivered, or until it is no longer possible in the course of nature that she should be delivered.

ARTICLE 300.

ADJOURNMENT.

From the time when the prisoner is given in charge to the jury in cases of felony, and from the commencement of the statement of the counsel for the Crown in cases of misdemeanor, the trial must proceed continuously, subject to a power on the part of the Court 3 to adjourn the hearing from day to day, or for a longer period, and subject also to the power of the Court mentioned in the next Article.

3

In cases of treason and felony, the jury must be kept to

1 The section goes on to empower the Queen to give an order for the confinement of such person during her Majesty's pleasure.

2 Form of oath in Archb. 193.

3 Adjournments from day to day, or over Sunday, are of constant occurrence. In Reg. v. Orton the Court habitually adjourned from Friday to Monday, and in some instances for several days, once even for a fortnight or more, in order that a certain witness's evidence might be tested

gether, and must be prevented from communicating, without the leave of the Court, with any person from the time when the prisoner is given into their charge till the verdict is given. When it is necessary to adjourn, from day to day in such cases, the Court makes order for the proper accommodation of the jury at the expense of the public.

ARTICLE 301.

POWER TO DISCHARGE THE JURY.

1If the judge, or a juryman, dies or is taken ill during the trial, or if owing to any tumult, fire, or other accident, it is impossible, or would be improper, to proceed with the trial, the Court may discharge the jury and commit the prisoner to custody to be tried at some subsequent time.

2 If a juror misconducts himself, as by separating from his fellows without leave, and if it appears to the Court that his conduct though improper was not corrupt and did not affect his impartiality, the juror is liable to be fined for contempt, but the verdict is good. If misconduct on the part of the jury is brought to the knowledge of the Court before their verdict is given, it seems that the Court may in its discretion discharge them, and have the case tried by another jury. If misconduct on the part of the jury (as by taking bribes) is discovered after verdict and judgment, it seems that the jury may be punished, but the verdict and judgment cannot be reversed.

1 In the case of the illness of a juryman it is not uncommon to swear a new juryman, giving the prisoner his challenges over again, and to read over the Judge's notes of the evidence given, swearing the witnesses afresh, and asking them if the evidence so recorded is true, the prisoner having power to crossexamine further. The circumstances may be such that this is unobjectionable, but where the first jury is discharged because it is unable to agree a second trial so conducted was disapproved of, though it was not set aside as a mistrial. See Reg. v. Bertrand, L. R. 1 P. C. 520. (The case occurred in New South Wales, but was brought on appeal before the Judicial Committee of the Privy Council.) 2 2 Hale P. C. 296, and see R. v. O'Neil, 3 Crawford & Dix. (Circuit Cases) 146. 3 I can give no direct authority for this, but it seems to follow from the fact that it would not be error in the record, nor a question of law arising on the trial.

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ARTICLE 302.

PRISONER'S RIGHT TO BE PRESENT.

The prisoner has a right to be present at the trial so long as he conducts himself properly, but the Court may, in its discretion, permit his absence in cases of misdemeanor, and may proceed with the trial in his absence in cases in which he has pleaded to an indictment or information in the High Court (Queen's Bench Division).

1

1If a prisoner so misconducts himself as to make it impossible to try him with decency, the Court, it seems, may order him to be removed and proceed in his absence.

1 I have never known or heard of this being done, but Lord Cranworth (then Rolfe, B.) threatened to have Rush removed from Court, at his trial for murder at Norwich in 1849, if he persisted in a singularly indecent and outrageous course of cross-examination. I have heard from eye-witnesses an account of a trial before Shee, J. (then acting as Commissioner), at Dorchester, where the prisoner (a convict at Portland, tried for the murder of a warder) behaved with such desperate violence that it was necessary to fasten him down with chains and straps. He was not, however, removed from the Court, and it is obvious that in capital cases, or indeed, in any trial involving severe punishment, almost any measures, short of removing the prisoner, should be resorted to.