CHAPTER VIII. CRIMINAL APPEAL. SECT. 1. Crown cases reserved, p. 271. 5. Venire de novo, p. 294. SECT. 1. CROWN CASES RESERVED. Former practice.]-A practice had long existed, where any objection was taken on the part of a defendant, on a trial for treason or felony, before any court of oyer and terminer and gaol delivery, either to the indictment or the evidence, which the court considered worthy of more mature consideration, to take the opinion of the jury upon the facts proved, and to reserve the objection for the consideration of all the judges of the superior courts of common law upon a case stated by the judge who presided at the trial: and if the judges, or a majority of them, were of opinion that the objection was well founded, the defendant was recommended to the crown for a pardon. Upon a case so reserved, the judges, although they heard counsel for the defendant, whenever he thought fit to employ counsel to argue the objection before them, and in that case heard counsel for the prosecution also, did not sit strictly as a court, but rather as assessors to the judge who tried the case, and the judgment ultimately pronounced was considered in law as his judgment: the reasons on which it was founded not being publicly declared by the judges, though the results of their conferences are preserved in the reports. Courts of quarter sessions had no power to reserve cases on indictments tried before them for the opinions of the judges. But see ante, p. 128. Present law and practice.]-The Crown Cases Act, 1848 (11 & 12 Vict. c. 78), was passed to remedy this defect in the law. Below are stated the provisions of the Act and the modifications effected by the Judicature Acts. 11 & 12 Vict. c. 78, s. 1.]—" When any person shall have been convicted of any treason, felony, or misdemeanor, before any court of oyer and terminer or gaol delivery, or court of quarter sessions, the judge or commissioner or justice of the peace before whom the case shall have been tried, may, in his or their discretion, reserve any question of law which shall have arisen on the trial for the consideration of the justices of either bench and barons of the Exchequer; and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment, until such question shall have been considered and decided, as he or they may think fit; and in either case the court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case may be." The section extends to special commissioners of oyer and terminer, etc.; R. v. Bernard, 8 St. Tr. (N. S.) 887, 1001; 1 F. & F. 240; and to recorders of boroughs. R. v. Masters, 1 Den. 332; 18 L. J. (M. C.) 2; but apparently not to trial on a record of the K. B. D. See New Trial, post, sect. 4. As to granting bail, see R. v. Harris, 4 Cox, 21; R. v. Bird, 5 Cox, 11. 36 & 37 Vict. c. 66 (Supreme Court of Judicature Act, 1873), s. 47.] — "The jurisdiction and authorities in relation to question of law arising in criminal trials which are now vested in the justices of either bench and the barons of the Exchequer by the Crown Cases Act, 1848, or any Act amending the same, shall and may be exercised by the judges of the high court. . . . The determination of any such question by the judges of the high court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said high court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said judges under the Crown Cases Act, 1848" (36 & 37 Vict. c. 66, s. 47). Sect. 100.]--"In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned shall have, or include, the meanings following (that is to say): ... "Rules of court shall include forms. "Cause shall include . . . any criminal proceeding by the crown. "Matter shall include every proceeding in the court not in a cause. "Crown cases reserved shall mean such questions of law reserved in criminal trials as are mentioned in the Crown Cases Act, 1848." 38 & 39 Vict. c. 77 (Supreme Court of Judicature Act, 1875), s. 19.]— "Subject any rules of court to be made under this Act, the practice and procedure in all criminal causes and matters whatsoever in the high court. . . and in the court of appeal respectively, including the practice and procedure with respect to crown cases reserved, shall be the same as the practice and procedure in similar causes and matters before the commencement of this Act." [The first schedule referred to in that section contained rules of court, which rules were superseded by the Rules of the Supreme Court, 1883, criminal proceedings, see Order LXVIII. The Act is to be construed as one with 36 & 37 Vict. c. 66; see s. 1.] 42 & 43 Vict. c. 22 (Prosecution of Offences Act, 1879), s. 2.]—" It shall be the duty of the director of public prosecutions under the superintendence of the attorney-general to institute, undertake, or carry on such criminal proceedings, whether in the Court for Crown Cases Reserved . . . as may be for the time being prescribed by regulations under this Act, or may be directed in a special case by the attorney-general. . . ." [For regulations see post, p. 278.] 44 & 45 Vict. c. 68 (Supreme Court of Judicature Act, 1881), s. 15.] "The jurisdiction and authority in relation to questions of law arising in criminal trials, which under s. 47 of the Supreme Court of Judicature Act, 1873 (supra), is now vested in the judges of the high court of justice, may be exercised by any five or more of such judges. provided that the lord chief justice of England shall always be one of such judges, unless, by writing under his hand or by the certificate in writing of his medical attendant, it shall appear that he is prevented, by illness or otherwise, from being present at any court duly appointed to be held for the purpose aforesaid, in which case the presence of the said lord chief justice at such court shall not be necessary." 11 & 12 Vict. c. 78, s. 2. Statement and hearing of the case.]—" The judge or commissioner or court of quarter sessions shall thereupon state, in a case signed in the manner now usual, the question or questions of law which shall have been so reserved, with the special circumstances upon which the same shall have arisen (see post, p. 275); and such case shall be transmitted to the said justices and barons; and the said justices and barons shall thereupon have full power and authority to hear and finally determine the said question or questions, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment or inquisition on the trial whereof such question or questions have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the said justices and barons, the party convicted ought not to have been convicted, or to arrest the judgment, or order judgment to be given thereon at some other session of oyer and terminer or gaol delivery, or other sessions of the peace, if no judgment shall have been before that time given, as they shall be advised, or to make such other order as justice may require; and such judgment and order, if any, of the said justices and barons shall be certified, under the hand of the presiding chief justice or chief baron, to the clerk of assize, or his deputy, or the clerk of the peace, or his deputy, as the case may be, who shall enter the same on the original record in proper form; and a certificate of such entry, under the hand of the clerk of assize, or his deputy, or the clerk of the peace, or his deputy, as the case may be, in the form as near as may be or to the effect mentioned in the schedule annexed to this Act, with the necessary alterations to adapt it to the circumstances of the case, shall be delivered or transmitted by him to the sheriff or gaoler in whose custody the person convicted shall be; and the said certificate shall be a sufficient warrant to such sheriff or gaoler, and all other persons, for the execution of the judgment, as the same shall be so certified to have been affirmed or amended, and execution shall be thereupon executed on such judgment, and for the discharge of the person convicted from further imprisonment, if the judgment shall be reversed, avoided, or arrested, and, in that case, such sheriff or gaoler shall forthwith discharge him, and, also, the next court of oyer and terminer and gaol delivery, or sessions of the peace, shall vacate the recognizance of bail, if any; and, if the court of oyer and terminer and gaol delivery, or court of quarter sessions, shall be directed to give judgment, the said court shall proceed to give judgment at the next session." Form of certificates.]--The forms used for the certificate of the court for crown cases reserved are as follows:: Court for the consideration of the Court for Crown Cases Reserved pursuant to the statute 11 & 12 Vict. c. 78. At a sitting of the said court holden at the Royal Courts of Justice, in A.C.P 18 the city of Westminster, on the day of in the year of our Lord 18-, before the judges of the High Court of Justice, the undersigned the Lord Chief Justice of England presiding, assembled for the purpose of hearing and determining questions of law reserved for their consideration under and by virtue of the Statute above mentioned. The King against. A case having been transmitted from to the said judges, pursuant to the Statute in such case made, setting forth that at the said had beeen tried and convicted before on an indictment in the said case mentioned, also stating certain questions of law which had arisen upon the said trial, and which had been reserved for the consideration of the said judges. Now the said judges having duly proceeded to the hearing and determining of the said questions. It was thereupon considered and determined by the said judges that the said [ought not to have been found guilty, or to be convicted on the said indictment. Wherefore, it was ordered that judgment which stands postponed on the said indictment, be altogether stayed and arrested, and that no judgment whatever be passed on the said -for or by reason of the premises of which so been found guilty. And that be forthwith discharged from commitment to prison on the said indictment (b), (c), (d).] In witness whereof, 1, the presiding chief have hereunto set my hand according to the Statute in that behalf. (b) [Or] was properly convicted on the said indictment, wherefore the judgment given on the said indictment against the said is affirmed. (c) [Or] was properly found guilty, and ought to be convicted on the said indictment, wherefore it was ordered that the judgment which stands postponed on the said indictment be given thereupon against the said that such judgment be given at the next, at which the said personally appear, and at which may be lawfully sentenced on the said indictment. and shall (d) [Or] ought not to have been convicted on the said indictment, wherefore it was ordered that an entry to that effect be forthwith made on the record of the said indictment, and that the judgment given upon the same be altogether reversed, avoided, and altogether held for nothing, and that the said be forthwith discharged from imprisonment under and by virtue, and in execution of the said judgment. The form of certificate by the clerk of the court from which the case is reserved is as follows (11 & 12 Vict. 78, sched.): Whereas at the sessions of the peace for the county of held on before —, and other their fellows, [or at the session of oyer and terminer and gaol delivery held for the county of on -,] before, among others, Sir S. M., knight, one of the justices of the High Court of Justice (in England), and [here name the quorum commissioners, justices of oyer and terminer, and gaol delivery] A.B., late of ——, labourer, having been found guilty of felony, and judgment thereupon given, that [state the substance] the court before whom he was tried reserved a certain question of law for the consideration of the justices, and execution was thereupon respited in the meantime : This is to certify, that the said justices having met in the Royal Courts of Justice, London, [or Dublin, as the case may be], on the day of it was considered by the said justices and barons there that the judgment aforesaid should be annulled, and an entry made on the record that the said A. B. ought not, in the judgment of the said justices and barons, to have been convicted of the felony aforesaid; and you are therefore hereby required forthwith to discharge the said A. B. from your custody. 11 & 12 Vict. c. 78, s. 3. Judgment to be delivered in open court.]—. . The judgment or judgments of the said justices and barons shall be delivered in open court, after hearing counsel or the parties, in case the prosecutor or the person convicted shall think it fit that the case shall be argued, in like manner as the judgments of the superior courts of common law at Westminster or Dublin, as the case may be, are now delivered." [The rest of the section was repealed in 1875: 38 & 39 Vict. c. 66, S. L. R.] Sect. 4. Amendment of case.]—"The said justices and barons, when a case has been reserved for their opinion, shall have power, if they think fit, to cause the case or certificate to be sent back for amendment, and thereupon the same shall be amended accordingly, and judgment shall be delivered after it shall have been amended." [See post, p. 277.] Sect. 6. Penalty for forgery of documents.]-"Every person who shall forge or alter, or shall offer, utter, or dispose of, or put off, knowing the same to be forged or altered, any certificate of, or copy certified by a chief justice, or any certificate of or copy certified by a clerk of assize or his deputy, or the clerk of the peace or his deputy, as the case may be, with intent to cause any person to be discharged from custody, or otherwise to prevent the due course of justice, shall be guilty of felony, and being convicted thereof shall be liable. . . to be transported beyond the seas for any term not exceeding ten years." [Now penal servitude for not more than ten nor less than three years, or imprisonment with or without hard labour for not more than two years. See 54 & 55 Vict. c. 69, s. 1 (ante, p. 235), and 57 & 58 Vict. c. 56 (S. L. R.); and see post, tit. "Forgery."] Questions of law which may be reserved.]-Under the Act the court of trial has authority to reserve, and the court for Crown Cases Reserved to entertain, not only questions of law which are raised by the evidence, but also questions of law which arise on a motion in arrest of judgment; R. v. Martin, 1 Den. 398; 18 L. J. (M. C.) 137 ; or as to the sufficiency of the indictment: R. v. Webb, 1 Den. 338; 18 L. J. (M. C.) 39: R. v. Craddock, 2 Den. 31; 20 L. J. (M. C.) 31: R. v. Garland, 11 Cox, 224 (Ir.); Ir. Rep. 3 C. L. 383; or as to the legality of the sentence. R. v. Summers, L. R. 1 C. C. R. 182; 38 L. J. (M. C.) 62: R. v. Garland (ubi supra): R. v. Horn, 15 Cox, 205. But a case cannot be reserved on questions which arise on demurrer; for as this court is empowered to hear and finally determine, to entertain a question of demurrer would be to take away the right of a prisoner to review the decision by writ of error, and ultimately in Parliament. R. v. Fadermann, 1 Den. 565; 19 L. J. (M. C.) 147. [And see Orders of Court, infra, p. 277.] Where a prisoner pleaded guilty to an indictment and after the judge left the assize town his attention was called to an unreported case (R. v. Dodd, 1877), which, if law, showed that the indictment was bad on its face, and he thereupon stated a case, requesting the opinion of the court for Crown Cases Reserved whether the conviction was good, it was held that the objection to the indictment was a question which had arisen at the trial so as to give the court for Crown Cases Reserved jurisdiction. R. v. Brown, 24 Q. B. D. 357; 59 L. J. (M. C.) 47; 16 Cox, |