as to the prisoner's lands, tenements, and goods, and whether he fled for it but these forms are now abolished, and the province of the jury is confined to the simple issue of guilty or not guilty (s). The verdict cannot be altered after it is once recorded; but it may be, and often is, altered after it has been pronounced, at the suggestion of the court, if its terms imply a contradiction, or are accompanied by something which renders the meaning doubtful. Where a verdict is thus offered by the jury, but not immediately accepted and recorded by the court, it has been the practice for some clerks of the peace to enter a note of it in the minute book of the sessions, as a memorandum of the proceedings as they go on, and afterwards to record the ultimate finding on the indictment in the usual manner (t). A jury at sessions, on an indictment for poisoning mares, found the accused "guilty by mischance." This was entered by the clerk of the peace in his minute book. The defendant's counsel submitted this very finding amounted to an acquittal; and the chairman told the jury to find the prisoner guilty, or not guilty, directing them to reconsider their verdict. They retired, and afterwards gave their verdict "guilty; but recommended to mercy." The clerk of the peace recorded that finding, with the recommendation, on the indictment in the usual manner. After which the court asked the jury the ground of their recommendation: they answered, that the prisoner did not do it with a malicious intent, but to benefit the condition of the horses. On a motion to the king's bench for a mandamus to the sessions to alter the minutes of the verdict according to the fact, &c. on an affidavit that the verdict was erroneously entered on the trial, the court refused to interfere with the minutes, the quarter sessions being a court of competent criminal jurisdiction (u). Upon the trial of an indictment at the sessions, the court is the sole judge whether the entry of the verdict is proper or not; so that if, upon a special finding of a jury amounting to an acquittal, the chairman directs a verdict of guilty to be entered, which is done accordingly, the court of queen's bench will not grant a mandamus commanding the minute to be entered according to the fact, and the proper course for the prisoner is to apply for a pardon (v). And sometimes the jury are requested to reconsider it, when it is manifestly against evidence; but (s) 7 & 8 G. IV. c. 28, s. 5. (t) See R. v. Hewes, 3 Ad. & E. 726. (u) R. v. Hewes, 3 Ad. & Ell. 725. See ante, p. 51: Walcott's case, 4 Mod. 395, afterwards confirmed in Dom. Proc. 1 Stark. Crim. Pl. 2d edit. 271, and Reg. v. Yeaveley (Inh.), 8 Ad. & E. 806; 1 Per. & Da. 60, ante. Record of quarter sessions is not necessarily on parchment. (v) R. v. Suffolk (Justices), 5 N. & M. 139; 3 id. Mag. Cas. 221. in these last instances the interference requires great caution, and the jury may always persist in an absolute finding, however contrary to the opinion of the court. When they have finally delivered such verdict as can in point of law be received, the officer proceeds to ask the same question as to other prisoners (if there are any) included in the charge; and having received their answers in like manner, severally addresses them,— "Hearken to your verdict, as the court records it; you say A. B. is guilty, (or, 'not guilty') of the felony whereof he stands indicted; (and so of the others, if more than one) that is your verdict, and so you say all." The verdict is, at the same time, recorded by the officer on the indictment. Protection of Jurors.]-Jurors are not now punishable, except for gross acts of misconduct, as casting lots for a verdict, or for actual corruption. Of the verdict itself they are the sole and absolute judges; if they return it in a legal form, the court must receive it; and unless they are guilty of embracery or indecent conduct, they can never be questioned civilly or criminally on account of their decision. The proceeding by writ of attaint for false verdict has long fallen into disuse. And by the recent act regulating the law of juries, it is entirely abolished (w); but with a proviso, "that every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and punished by fine or imprisonment, as every such person and juror might be before the passing of this act" (x). Effect of Verdict in Criminal Cases.]—A conviction, however contrary to the opinion of the court at sessions, cannot be set aside; for the justices have no power, like the court of queen's bench, to grant a new trial on the merits, except the trial has been void for irregularity (y); though, where the punishment is discretionary, they may mark their opinion of the case by passing a nominal sentence, or may recommend the party to the crown, through the secretary of state, as a proper object of pardon. A verdict of acquittal, when returned on a valid indictment, is always conclusive when pleaded in bar to any subsequent indictment for the same charge; but does not prevent a (w) 6 G. IV. c. 50, s. 60. (x) Ibid. s. 61. (y) Per Denison, J., 1 Burr. R. 572; speaking, however, of an inferior court, which a quarter sessions is not, ante, p. 51; and see R. v. Smith, 8 B. & Cr. 343, and the cases cited 2 Tidd, Prac. 9 ed. 905. party from being afterwards indicted on another charge having reference to the same transaction. Thus, if a party be acquitted of a felony, on the ground that the proof only sustains a charge of misdemeanour, he may afterwards be tried on a bill found for the misdemeanour, and vice versa. A new trial of the same indictment is never granted by any court after a verdict of acquittal (y). Even on indictments for not repairing roads and bridges, which are substantially civil proceedings, the utmost the court of queen's bench will do is to suspend the judgment until after the trial of another indictment, in order to prevent the acquittal from being given in evidence at such subsequent trial to disprove the liability of the parties acquitted (z). Acquitted prisoners may, it seems, be detained till the grand jury is discharged. Prisoners against whom no bill is preferred or found, are discharged at the end of the sessions by proclamation. SECTION XV. OF JUDGMENT AND DISCHARGE. A PRISONER found guilty by the jury, or a defendant, if present in court, is called upon to say why judgment should not be passed upon him. He may now, therefore, if any errors appear upon the face of the indictment, move the court to arrest or stay the judgment (a); or may offer something in extenuation of his offence. If the indictment is bad, an amended bill should be preferred; to which, if found, the prisoner must plead, though at a subsequent session, if the session has been properly adjourned (b). Sentence; or Adjourning the Sessions for time to Inquire.]-Sentence is generally passed immediately. If, on the contrary, any doubt arise in the minds of the court respecting the application of the law to the fact, or if they wish to have time for examination into the circumstances of the offence, or the character of the offender, it is usual to adjourn the sessions to some future day, before or not later than that appointed for the next session, in order to give time for consultation, discussion, or inquiry, as the case may require (c). In this event, the manner of disposing of (y) R. v. Reynell, 6 East, R. 315. (z) R. v. Wandsworth (Inh.), 1 B. & A. 63. An acquittal is never conclusive evidence for the party acquitted, for it concludes no fact as a conviction does, 12 East, 410; Bul. N. P. 245; 3 Mod. 164; Peake, C. N. P. 288, 2d edit. R. v. St. Pancras. See 1 B. & Ald. 63. (a) 4 Bla. Com. 375. (b) See Reg. v. Goddard, Ld. Ray. 920. The plea of Auter fois convict is only an answer where the verdict was on a sufficient indictment, 1 Chit. Cr. L. 462, 1st edit. (c) Ante, p. 61; post, Ch. XII. s. 4. If any criminal pleading subsequent to the defendant, during the interval, will depend on the nature of the offence of which he has been convicted, and the situation in which the course of the proceedings previous to trial may have placed him. If in custody, he will be recommitted to custody; if out on bail, he will, generally, be allowed to enter into a new recognizance to appear at the period of adjournment, or when called on to receive judgment. It is scarcely necessary to add, that this delay of sentence being a forbearance in favour of the prisoner, whether it be in compliance with his solicitation, or emanate immediately from the court, it would not be compatible with the claims of justice to place the security of his person for receiving the judgment of the law upon a more precarious foundation after verdict, than it was before; and that, in the circumstances under contemplation, some reference is due to the application of the prosecutor, as well as to the opinion of the court, respecting the recognizances by which the liberation of his person may be justified. Proclamation while Sentence is passed.]---Then, in cases of felony, the prisoner is placed at the bar, and the sentence (d) is pronounced an indictment for misdemeanour, or, as it seems, for a felony not capital, concludes with an improper prayer, as, that the defendant may answer over, where it should have been for final judgment against him, the court is not bound by it, but will give such judgment as by law ought to be given, R. v. Taylor, 3 B. & Cr. 512, et seq. A person was indicted for a misdemeanour in fixing a lighted candle in a closet, under certain wooden stairs in the house of J. R., of which house he the prisoner was then possessed for a certain unexpired term, and for putting matches about and against the said lighted candle, with a wicked and malicious intention, by means thereof then and there feloniously to set fire to the aforesaid house of the said J. R., and to burn and consume the same. It was objected in arrest of judgment, that alleging the act to be done feloniously, made it necessary to prove a felony; which the possession of the house by the prisoner prevented. But Lord Mansfield and the court rejected the word feloniously as surplusage, and repugnant to the legal import of the offence charged, and gave judgment against the defendant for the misdemeanour of which he had been in fact convicted; R. v. Scofield, East's P. C. 1028; R. v. Holmes, id. 1023. (d) Note by Mr. Dickenson.-In a book professedly compiled principally for the use of persons who have not been in the habit of considering such kind of subjects, it may, perhaps, be deemed at least a pardonable piece of presumption in its author, if he throw out a few suggestions on that portion of the justice's public duty in the exercise of which the law has left the most to his discretion, with the fewest means of regulating his judgment, viz. the punishment of those offences which are the usual subjects of trials before a court of quarter session. Where statutes have conferred upon individual magistrates, or even upon sessions, the authority of summary convictions, without the intervention of jurors, they have limited the penalties for the offences created or punished by them, within narrow, generally, but always within prescribed, bounds; while, with respect to fines, imprisonments, and even transportation, they have, of necessity, perhaps, left to them the same latitude of apportionment, as to the judges of the superior courts, although frequently persons without the same professional experience, the same familiar acquaintance with the multiplied inducements to by the chairman; and formerly, at whatever period the judgment of the court in case of felony was to be given, proclamation was made as follows, by the crier of the court: “Oyez, Oyez, Oyez, all manner of persons are commanded to keep silence whilst judgment is given against the prisoner at the bar, upon pain of imprisonment." But in modern times it is in general omitted, except in the higher criminal tribunals, on the occasion of passing sentence of death. Judgments.]—This stage of the proceedings brings us to a summary notice of the judgments which are ordinarily inflicted by courts of session of the peace. Punishment of Felonies by Transportation—Imprisonment—Solitary Confinement-Hard Labour-Whipping.]—The punishment of a felony less than capital is now, in all cases, that prescribed by the statute or statutes specially relating to it (e); and is awarded in terms by sentence passed by the court after conviction. The benefit of the commission of crimes, or the same : administered with that moderation which corrects without degrading. Nemo repente turpissimus, is an adage as true in point of fact, as necessary to be kept in mind by those whose rank and duties call upon them to mark with precision of punishment the deviation of ignorance and frailty from the path of rectitude. On a repetition of offences, where it is ascertained, indeed, that admonition has failed to correct, to deter, by making the culprit an example, becomes a duty to society for compassion to the individual may then well give way to the general protection of the social system. Nevertheless, till amendment has be come entirely hopeless, the severity of punishment should be short of that which cuts off all retreat from an association with the vicious. The third and last stage of depravity, is that alone in which moderation may cease to be considered as an attribute of justice. In that extremity, society has an ample right to manifest its resentment; and the administrators of its laws are justified in becoming the ministers of its wrath; because cutting off (by removal or disgrace) the morbid member from the general body, becomes the only method of preventing the communication of contagion. (e) 7 & 8 G. IV. c. 28, s. 8. |