Of the finding of facts dehors the record.

If a man be arraigned upon an inquest of murder or manslaughter returned by the coroner, and he be found not guilty, the jury who tried him ought further to inquire who committed the fact, and if they find that A. B. did it, he may be put upon his trial in chief upon that finding (t). And the practice was anciently the same with respect to indictments found by the grand inquest (u). But the usage had entirely ceased as to indictments, in the time of Lord Hale, and with respect to inquests had become mere matter of form (x).

And as to indictments of robbery, it was formerly the practice to oblige the jury under the statute of Winchester, in case they acquitted the prisoner, to present who did it, for the hundred was answerable, and the trials before the justices in eyre were for the most part by a petit jury of the same hundred; but afterwards, when the jury who tried and inquired came from the body of the county, the practice ceased (y).

The jurors of the petit inquest are charged to inquire if the party fled, and of his goods and chattels; this, however is but an inquest of office and traversable (≈); but it has been said that a presentment of flight before the coroner, is conclusive (a).

It seems to be a general rule, that if a verdict contain such a finding as will warrant a judgment against the defendant, any superfluous and unnecessary addition may be rejected as surplusage (b).

359

CHAP. XXI.

Of Judgment.

THE prisoner cannot be convicted of treason or felony unless he be present in court, but he may be found guilty of a misdemeanor in his absence; and, if he do not surrender himself to await the sentence of the law, a capias is awarded and issued to bring him before the court to receive his judgment; but if he be present at the trial, it is in course that he should be committed, unless the prosecutor consent to his being liberated upon his recognizance to appear when called upon to receive the sentence of the court (a). So if he be taken on a capias pro fine.

In case of felony there can be no new trial (b), but after a conviction of an inferior offence (c), the Court of King's Bench will, in its discretion, grant a new trial, whenever it is manifestly conducive to the ends of justice. In strictness the defendant should apply within the limits allowed in civil cases (d); but for the attainment of substantial justice, the court will interpose after the regular time has elapsed (e); and where some defendants have

(a) Burr. 2539. R. v. Waddington, 1 East, 159.; but the length of his previous imprisoument is taken into consideration by the court in their judgment.

(b) 6 T. R. 638.
(c) lb. Doug. 797.
(d) 5 T. R. 436.

(e) R. v. Gough, Doug. 171.

797, 5 T. R. 436. 1 East, 146. 2 Str. 845. In R. v. Parker and Brown, Leach, 984. 3d ed. it was said, that in a criminal proceeding it was never too late to review the circumstances. See also the observation of Buller, J. R. v. Tilley, Leach, 770. 3d. ed.

been acquitted and others convicted, the court will, in its discretion, grant a new trial as to the latter, but they must all be present in court, when the motion is made (ƒ).

By the practice of the court of King's Bench upon a conviction of any crime, whether capital or otherwise, the defendant is allowed four days to move in arrest of judg ment (g), if there be so many remaining of the term, and if not, then the longest time that can be had (h).

In case of misdemeanors, if there be not four days remaining of the term, it seems that the court will not give judgment until the ensuing term (i). The defendant may move in arrest at any time before judgment has actually been given (k).

Upon a conviction at the assizes or quarter sessions, it is not unusual to pass sentence immediately, and in all cases of murder, in whatever court the conviction may be, it is expressly enacted by the stat. 25 G. 2. c. 37. that sentence shall be passed immediately.

If a man be indicted of felony before justices of the peace, oyer and terminer, or gaol delivery, and after conviction the record be removed by certiorari into the King's Bench, and the prisoner be also removed thither by habeas corpus, he may plead that he is not the same per

(f) R. v. Mawbey et al. 5 T. R. 619. R. v. Teale et al. 11 East, 307. See also Str. 843, 968, 1227. 2 Bur. 930. Com. Dig. Ind. N. R. v. Askew and others, 3 M. & S. 9. R. v. Cochrane, ib.

(g) 2 Haw. c. 48. s. 1. 3 St. Tr. 794. Algernon Sidney's case, 3 St. Tr. 999. Boswell's case, 4 St. Tr. 777.

(h) 2 Haw. c. 48. s. 1. 4 St. Tr. 217,

(i) 7 St. Tr. 63; but see 4 St. Tr. 217. and 2 Haw. C. 46. s. 1. In one instance of an aggravated misdemeanor, Lord Hale is said to have refused to listen to a motion in arrest of judgment. Saund, 301, 2. (k) 5 T. R. 445.

son, and allege a diversity of name, and if the king's attorney confess this, he shall be discharged out of custody (7). But the king's attorney may take issue upon it, and aver that he is the same person, and known by one name as well as the other (m). But if, upon being called upon to say why judgment should not be given against him, he stand mute, it is necessary to inquire whether he be the same person, for he is not concluded by the return if he has not continued in custody of the same court since his arraignment ("). And this is also necessary where a party is outlawed, and is brought into the King's Bench by capias utlagatum (o). But if he has been in the custody of the King's Bench from the time of his arraignment, or has been bailed by the court, and has been rendered by his bail, no such inquiry is necessary on his standing mute (p).

It seems to be a general rule, that no fault, which would have been fatal on demurrer, can be cured by the verdict; and, consequently, that any such fault may be taken advantage of by motion in arrest of judgment, or by writ of error if it be granted.

Of the different kinds of judgment.

The judgment in high treason, except in respect of the coin, is, that the offender be drawn upon a hurdle to the place of execution, there to be hanged by the neck, to be cut down whilst he is alive, and his entrails to be taken out and burnt before his face, and his head cut off and his body quartered, and his head and quarters to be at the king's disposal (9).

(1) John Apare's case, 2 Hale, 402.

(m) Brown's case, Lib. pl. Cor. 31. 2 Hale, 402.

(n) 10 E. 4. 19.
(0) 2 Hale, 402.

(p) 2 Hale, 402. 10 E. 4. 19. (q) East. P. C. 137. 2 Hale, 397. 1 Hale, 187..

But the drawing upon a hurdle is not entered upon the record (r); neither is the cutting off the privy members, which is not usually pronounced (s). By the stat. 54 G. 3. c. 146. the judgment in all cases of high treason, where the former judgment was to be pronounced is, "that the offender be drawn on a hurdle to the place of execution and be there hanged by the neck until he be dead, and that afterwards the head be severed from his body and the body be divided into four quarters to be disposed of as his Majesty shall think fit.”

The judgment against a woman, whether for high or petit treason, was, that she should be burnt; but by the st. 30 G. 2. c. 48. s. 1. she shall be drawn and hanged. Also by the second section of that statute, women convicted as principals or as accessories before the fact in petit treason, shall be dealt with according to the provisions of the stat, 25 G. 2. c. 37. in case of murder.

In all cases of treason relating to the coin, and of petit treason, the judgment is, to be drawn and hanged, which was the judgment previous to the stat. 25 E. 3. st. 5. s. 2. (t).

And though it has been holden that one guilty of a new created treason was liable to the severer sentence, yet the contrary seems to be settled, both because the other was the common law judgment, and also because it was to be presumed that the legislature, in creating a new treason relating to the coin, intended to constitute it with inci

(r) 2 Hale, 397. 2 Haw. c. 48. s. 3.

(s) East, P. C. 137. 2 Hale, 397. 2 Haw. c. 48. s. 3. 6 St.

Tr. 16. and see Fost. 336. 4 Bl. Comm. 92. Walcots's case, 4 Mod. 395.

(t) 2 Hale, 397.