illness, a prisoner indicted for felony becomes incapable of remaining at the bar during the trial, the jury must be discharged. If he recovers during the session, he may be re-tried, the whole of the proceedings in his trial being commenced de novo (v); if not, the recognizances must be respited till the next session. A trial has been postponed till next day, and a jury discharged on the request of the prisoner's counsel, on account of the absence of a material witness, e. g. the surgeon, who examined the body in manslaughter (w).

If a juryman dies during the trial, or is taken so ill as to be unable to attend to the evidence or agree in the verdict, the survivors must be discharged, and the prisoner tried afresh. A sick juror may be attended by another juror, or a surgeon, accompanied by a bailiff, sworn to remain constantly with him. The juror or surgeon, on their return, may be questioned on oath, to make true answer to such questions as the court shall demand of him respecting the state of the absent juror. If it appear that he will in all probability speedily recover, he may have refreshment; but if not, or if he dies, the eleven jurymen must be discharged from giving any verdict. Their names should then be called over again instanter, and another person on the panel of jurors called into the box. The prisoner must then be offered his challenges to all twelve, after which each of them, or of those substituted for them on challenge, must be sworn de novo, and be charged with the prisoner. The trial must then begin again (x). Where the eleven were all re-sworn without challenge, the evidence which had been given was read by consent, from the judge's notes, before them and the twelfth juror; and each witness was asked whether it was true (y).

Withdrawing a Juror in Criminal Cases.]-A juror cannot be withdrawn in case of a capital felony, even with consent of the prisoner (z), and if after the jury is charged, (viz. after plea,) it appears before any

(y) See 1 Ch. Cr. L. 629; Foster, 31; R. v. Edwards, R. & Ry. 224; 2 Leach, 621, n.; 3 Campb. 207, n.; 4 Taunt. 309.

(z) R. v. Perkins, 9 Nov. 1698, Carth. 465, by all the judges; S. C. Sir T. Raym. 84; but they held otherwise in the case of the Kinlochs, Foster, J., diss. Foster, 28. The general rule appears to be that a juror may be withdrawn, whenever it is either favourable or indifferent to the party indicted, or as it

evidence given, that the prosecutor's principal witness is incapable of being examined, he having no idea of a future state of reward and punishment, the jury must not be discharged in order to give an opportunity to instruct the witness, but the prisoner must be acquitted (a). In criminal cases, not capital, a juror may be withdrawn by consent of the prosecutor and defendant, but not without it (b). By this course one of the jurors being allowed nominally to withdraw, the rest are discharged from giving any verdict. This course is sometimes suggested by the court, in cases of a personal kind, as assaults, with a view to a reconciliation between the parties, or that neither may have a triumph.

SECTION XIV.

OF THE DELIBERATION AND VERDICT OF THE JURY.

Deliberation and Retirement of the Jury-Swearing a Bailiff to keep them.]-When the charge is concluded, the jury proceed to consider of their verdict. If, on consultation in the box, they are not able to agree in a convenient time, they retire, and a bailiff is sworn to keep them in the folllowing terms :

"You shall keep this jury without meat, drink, fire, or candle; you shall suffer none to speak to them, neither shall you speak to them yourself, but only to ask them if they are agreed. So help you God."

According to the terms of this oath the jury are to be kept together without meat, drink, fire, or candle, till they are agreed (c). But the rule has been relaxed in modern times; and on special application, grounded on illness, the court has allowed refreshment to be supplied, so that it is not at the expense of the prosecutor or defendant (d). And the restriction as to candle has been always dispensed with on the retirement of a jury at night, when they require the inspection of documents which have been given in evidence. If the jury eat without

seems without his consent, where he has purposely kept back evidence for the crown or where a material witness is suddenly incapacited by illness from attending. See Ch. Cr. L. 1st ed. vol. 1, 631. Also ante, p. 583.

(a) R. v. Wade, 1 Mood. C. C. 86. See R. v. White, 1 Leach, 430; 2 Bac. Abr. 577, 5th ed.

(b) R. v. Perkins, R. v. Stokes, in

last page.

(c) Co. Lit. 227.

(d) Refreshment, after a long confinement, was allowed at Gloucester Summer Assizes, 1828, by Mr. Justice Gaselee, in the case of "Morris v. Davis;" and, ultimately, being unable to agree, the jury were discharged without giving any verdict.

permission, after they leave the box, they are fineable (e), but their breach of the rule in this respect will not avoid their verdict. Whether the jury shall be permitted to separate before giving their verdict, is in all cases a question for the court; but in a long trial for misdemeanour, lasting more than the day, their dispersion to their several homes during an adjournment, though without leave or consent of the court, or knowledge of the parties, does not avoid their subsequent verdict, if there is no suggestion of their having been practised on in the interim (ƒ). In a case of high treason (g), they were permitted to retire, in a body, to a tavern, where accommodations were provided for them by the sheriff and six bailiffs, sworn well and truly to keep them together, and neither to speak to them themselves nor suffer any other to speak to them touching any matter relating to the trial. A separation enabling the jurors to return to their homes is frequently agreed to in cases of misdemeanours, where the trial lasts more than a single day, the jury engaging to allow no one to speak to them on the subject of the trial.

When the jury retire, they may take with them any papers which have been proved in the cause, but no others. If any difficulty suggests itself to them in point of law, they may return into court and receive the assistance of the bench; and if they desire to examine again any witness who has been called, they may request that he may be called again for their satisfaction, and the request will be granted; but they can ask him no question except in open court (h). If one of the jurymen die before the verdict is given, the survivors must be discharged, for the eleven can return no verdict; but a new indictment may be preferred against the prisoner.

The Verdict.]-The jury having agreed, signify that they are ready to deliver their verdict. They may, as we have already seen, find a prisoner or defendant guilty on one count, and acquit him on others; or they may find him guilty of a part of a count where a substantive offence is charged and proved, and acquit him of the mere aggravations, provided the offence of which they convict him is of the same kind with that which the indictment set forth, and is included in it.

(e) See Plowd. Comm. 519.

(f) R. v. Kinnear and others, 2 B. & Ald. 462; S. C. nom. R. v. Woolf, with learned notes, 1 Chit. R. 401.

(g) R. v. Stone, 6 T. R. 530; R. v. Watson, 2 Stark. 116. This course was taken in R. v. Williams, indicted at the

Old Bailey for forgery, in April 1838, the trial of which occupied several days, including Sunday, on which day the jury took the air in carriages, attended by the sheriff's officers.

(h) 2 Hale, 296.

Thus, on an indictment for stealing from the person, or in a dwellinghouse, they may find the prisoner "guilty of stealing, but not from the person," or "not in the dwelling-house;" for the lesser charge is included in the greater, and both are felonies, although subjecting the offender to punishments differing in severity. Again, on an assault with intent to ravish, they may find the defendant guilty of a common assault, and acquit him of the intent; for both are misdemeanours, though the aggravated assault is punishable with hard labour, and the common assault with fine and imprisonment only. The same is now enacted in the case of a felony, which includes an assault against the person (i). But they cannot find a prisoner guilty of a misdemeanour on an indictment for a felony; nor of a felony on an indictment for a misdemeanour, for the modes of trial differ (j). If, of two persons indicted jointly for the same offence, one appears to be innocent, (as by having desisted from prosecuting his intent to rob,) and the other guilty, but the prosecutor cannot identify which committed the offence, both must be acquitted (k). On indictment against three for burglary and larceny, both being then capital offences, seven judges were of opinion that judgment might be entered against one as guilty of both offences, and against the two others as guilty of the latter offence only (); but two of the judges were of opinion that if a nolle prosequi was entered as to the party found guilty of the burglary, judgment might be given against all three for the capital larceny (m). This course had been taken in a previous case, where two being charged jointly with a capital larceny, the finding was that one was guilty of capital and the other of simple larceny only, so that the judgments would be distinct, and the judges were of opinion that judgment could not be given against both, but that on entering a nolle prosequi as to the party convicted of the simple larceny, judgment might be given against the other (m). If they deliver a verdict which plainly amounts in law to an acquittal, as, on an indictment for receiving,"guilty of receiving, but not knowing the goods to be stolen;" on an indictment for larceny,-"guilty of having the goods in his possession, but not of stealing them;" on an indictment for an assault,— guilty of the assault, but it was in self-defence;" the chairman

(i) 7 W. IV. and 1 V. c. 85, s. 11, printed at length, post, see Index, tit. Assault.

(j) See ante, p. 312, for the statutable provision in case a larceny be proved on an indictment for obtaining goods under false pretences.

(k) R. v. Richardson, 1 Leach, C. C. 387.

(1) R. v. Butterworth and two others, 1 Mood. C. C. 520.

(m) Ibid.; and see R. v. Hempstead and another, R. & Ry. 344.

should direct them to acquit; but if their meaning is expressed in doubtful terms, he should explain to them exactly the points by which their verdict must be governed, and send them back to reconsider it.

Special Verdict.]—The jury have a right to deliver a special verdict, that is, a verdict finding all the facts specially, and leaving the court to give judgment according to their legal effect. Such verdict must find all the circumstances distinctly as facts, for the court cannot supply any thing by implication or inference. If the circumstances so found do not substantially support the indictment (with the qualifications already referred to), no judgment can be passed, although they may show the prisoner to be guilty of a different offence (n). Where the judges of assize entertain doubts on points of law raised on behalf of the prisoner, it is usual for them to reserve the point for the opinion of the twelve judges. But the justices at sessions have no power to do so; they can only adjourn the session till they have themselves determined on the question; for the judges will take no cognizance of a point reserved on an indictment at sessions. Fortunately, the cases which usually come before the sessions are of a kind in which substantial justice at least may be attained without the necessity of such a reference.

Proceedings at the Delivery of the Verdict.]-If the jury have retired to deliberate, when they return into court to deliver the verdict, their names must be called over, and all the twelve must be within hearing when it is given (o). The officer then, in case of felony, desires the prisoner to hold up his hand, and addresses the jury,“Gentlemen, are you agreed in your verdict; how say you, is A. B. guilty of the felony whereof he stands indicted, or not guilty?” The foreman delivers the verdict guilty or not guilty (p). In case of felony, this verdict can only be received in open court, and in the prisoner's presence, though the court may be adjourned during the deliberation (g). In cases of misdemeanour, it may be delivered elsewhere, even out of the county by consent, and is often given in the defendant's absence (r). It was formerly necessary in felony to inquire

(n) 2 Stra. 1015.

(0) R. v. Wooller, 2 Stark. N. P. C. 111.

(p) In general, the assent of all the jury to the verdict pronounced by their foreman, if in their presence and hear

ing, is to be conclusively inferred, and no affidavit can in any case be admitted to the contrary, R. v. Wooller.

(g) Co. Lit. 227.

(r) R. v. Woodfall, 5 Burr. 2667.