SECTION I.

OF COMPROMISE (OR SPEAKING WITH THE PROSECUTOR) WITH THE SANCTION OF THE COURT.

It will be proper in the first instance to notice an arrangement which, in cases of common assault, is not unfrequently made under the sanction of the court, in that stage of the prosecution which follows the finding of the bill, so as to render further inquiry needless. This is accomplished by the judicial recognition of an agreement between the prosecutor and the defendant, for the satisfaction of the former in respect of the injury he has personally suffered (h); upon which, in cases where the court see no objection, the defendant pleads guilty; and on the assent of the prosecutor being evidenced either by his own declaration in court, or by affidavit, or the proof of a release from him by the subscribing witness, the court authorizes the arrangement by imposing on the defendant the fine of a shilling, or some other small sum, for the injury done to the public peace (i).

Prosecutions of this kind are often terminated in this way by the recommendation of the court in different stages of the proceedings; and a like effect is, indeed, very frequently produced after conviction; for it is the common practice in Middlesex, even after judgment and fine set, to allow the defendant to make a private agreement with the prosecutor, by an intimation from the court, that the defendant may speak to him; by which is understood, that a remission of the fine to the king may take place, on a portion of the sum assessed being paid to the prosecutor, as a recompense for his individual wrong.

Sir William Blackstone, after reprobating this practice of permitting the defendant to speak with the prosecutor, as it is termed, unless exercised by the judges in the superior courts of record, says it should never be suffered where the testimony of the prosecutor himself is necessary to convict the defendant (j).

(h) 1 East, R. 159; 4 Burr. 2539. (i) See the distinction taken between dropping a prosecution for a public misdemeanour, and one for private injury to the prosecutor, per Le Blanc, J., 5 East, 303, Edgcombe v. Rodd and others.

(j) 4 Bla. Com. 363. See this passage combated, 1 Ch. Cr. L. 1st ed. 665.

Mr. Dickenson's note submits, that the justices of the peace, being better acquainted with the characters of the

parties living in their immediate neighbourhood, than the judges of assizes can be, who are mostly strangers to the country, are at least as adequate to determine in what instances a practice generally censurable may be occasionally beneficial; and see 11 East, R. 46, 48. He adds, that the termination of a criminal proceeding by making satisfaction to the party more immediately aggrieved, is frequently recommended by the court

SECTION II.

OF PLEAS AND DEMURRERS; AND AMENDMENT OF RECORDS IN MISDEMEANOURS.

Pleas and Demurrers.]—When the indictment is found, the defendant may either plead to it or demur: by pleading, he puts in issue the facts of the charge; by demurring, he admits the facts, and contends that they charge no offence indictable by law; as if a man were indicted for feloniously stealing game, without alleging that it was tame or confined; in which case, upon demurrer, he must be discharged. Demurrers should be engrossed on parchment, and signed by the prisoner's counsel. They, however, are very rare at sessions; and, indeed, are seldom resorted to in any criminal cases, because (except in cases of objections provided against by 7 & 8 G. IV. c. 64, s. 20, 21 (ante, p. 176, 177), and which must therefore be raised by demurrer (k),) the party may always raise the same objection at the trial in arrest of judgment, or after judgment, by writ of error (1), taking in the mean time the chance of an acquittal by the jury (m). After demurrer, in case of felony decided against the prisoner, he is at liberty to plead over to the

merits; but in cases of misdemeanour, the judgment for the crown on demurrer is final, even where the demurrer is to a plea, and the prayer of judgment in the demurrer is by mistake, that the defendant may "answer over;" (n) for it operates as if the party had been convicted by a jury, which alone would be a sufficient consideration to render his legal advisers cautious in permitting him to demur (o). However, if the defendant argues the demurrer and succeeds, the judgment is not stayed or reversed, but, on the contrary, is given in his favour, for 7 G. IV. c. 64, s. 20 (ante, p. 176), does not extend by the words "or otherwise," beyond cases in which the application is to stay or

of queen's bench: e. g. in charging rules for criminal informations on payment of the costs by the defendant. So, after conviction, it often suggests that the parties should go before the master with a view to a pecuniary arrangement; and when sentence is actually passed, it is the constant practice for the crown to give the prosecutor a part of the fine in compensation for his expenses.

(k) Reg. v. Cruse and wife, 8 C. & P. 543; Reg. v. Law, 2 M. & Rob. 197, Alderson, B.

(1) Reg. v. Martin and wife, 8 Ad. & E. 481.

(m) 4 Bla. C. 324; 1 Ch. Cr. L. 1st ed. 442, 662. See as to 7 G. IV. c. 64, s. 20 and 21, having no effect in preventing demurrers, ante, p. 176, 177; Archb. Cr. Pl. & Ev. 6th ed. 73.

(n) R. v. Josiah Taylor, 3 B. & Cr. 502.

(0) See cases cited by Mr. Brodrick arguendo, S. C. 3 B. & Cr. 510; Hawk. B. 2, c. 31, s. 7.

reverse the judgment (p); nor will the indictment then be quashed at the instance of the prosecution, in order to the preferring a fresh bill (q). Pleas are either in Abatement or Bar:

Pleas in Abatement may be for the omission of the addition of the defendant, under the statute of additions; or for misnaming him. At no period could this course much avail him; because he was always obliged, on pleading in abatement, to give his true name or addition, and by that he was concluded; and, as he might be immediately indicted anew, or detained for indictment at the next sessions, he could only obtain more or less delay. And, in cases of misdemeanour, there is the same disadvantage as on a demurrer, that if the prosecutor, instead of allowing the plea, thinks fit to take issue upon it, and it should be found against the party pleading, he will stand convicted on the charge, and be liable at once to receive judgment (r): though, if the prosecutor demur on his part to the plea, and obtain judgment, the defendant may answer over to the merits (s). But now pleas in abatement for a mistake in the name or addition, rarely adopted, will, it may fairly be assumed, be disused altogether; for judgment in bar, if well pleaded, will not be given: and the plea will be ill if it does not give a better addition (t), as by 7 G. IV. c. 64, s. 19, the court may upon every such plea immediately cause the indictment to be amended, and call on the party to plead to it so amended, as if no dilatory plea had been pleaded. No advantage, therefore, even of delay, can now be obtained by such a plea.

Pleas in Bar.]-Pleas in bar are either special pleas, or the general issue. Special pleas may allege a previous conviction of the same offence; or a previous acquittal on a valid indictment (u); or a pardon; but these are of too rare occurrence to be particularly considered here. Other special pleas are, in practice, confined to the cases of prosecutions for neglect of duty in repairing highways and bridges; when the parish indicted or presented for omitting to repair a highway, or the county indicted for omitting to repair a bridge, and desiring to throw the liability on some other party, must show that liability by specially pleading it (v). These special pleas have been already considered in

(p) Archb. Cr. Pl. & Ev. 6th ed. 73; and see R. v. Holland, 4 T. R. 457.

(q) Reg. v. W. Smith, 2 M. & Rob. 109, Coleridge, J.; and see R. v. Lookup, 3 Burr. 109.

(r) R. v. Gibson, 8 East, R. 107.
(s) R. v. James Stamp Sutton Cooke,

(K. B.) Hil. Term, 1825, MS.

(t) R. v. Checketts and others, 6 M. & S. 88. A case of misdemeanour. (u) See Index, tit. Auterfois Acquit. (v) Ante, tit. Nuisances (to Highways).

sect. 2, of the last chapter, as far as consists with the plan of this work.

The General Issue.]-The plea employed in the infinitely greater number of cases in which the charge is denied, both misdemeanours and felonies, is the general issue-not guilty. This plea not only casts on the prosecutor the burden of making out every part of his charge, but it entitles the defendant to give in evidence every possible ground of justification and excuse which can form an answer to the accusation. Thus, on an indictment for an assault, he may not only show, under this plea, that, in fact, no assault was committed; but he may show, that though an assault was committed, it is to be justified in defence of his person or dwelling, or by any other lawful cause, all which he must have pleaded specially to an action for the same trespass. In short, the entire question of guilt or innocence of the charge in all its bearings, is put in issue by this plea.

Variances in Indictments for Misdemeanours, 9 G. IV. c. 15.]— Material variances between allegations in indictments for misdemeanours, and the proof, e. g. in not proving the same written instrument charged as a libel, will be fatal, for it seems that 9 G. IV. c. 15 does not give to a quarter session any power of amending the record (w).

SECTION III.

OF TRAVERSES AND OTHER POSTPONEMENT OF TRIAL.

Law of Traverse before 60 G. III. c. 4.]-Before the traverse act, parties indicted for misdemeanour, when they pleaded, were always at liberty either to try at that session, or to traverse the indictment, that is, to turn over or postpone its determination to the next session; and it was even doubted whether the sessions had power to proceed on an indictment against a party not present or in custody at the session when it was found.

But the law on this subject has been entirely altered by 60 G. III. c. 4, which, although it does not, in all cases, take away the right of traverse, has essentially narrowed it. That act recites that " great delays have occurred in the administration of justice, in cases of per

(w) See post, Sect. V. p. 518.

sons prosecuted for misdemeanours by indictment or information in his majesty's courts of king's bench at Westminster and Dublin, and by indictment at the sessions of the peace, sessions of oyer and terminer, and sessions of gaol delivery, in that part of Great Britain called England, and in Ireland respectively, by reason that the defendants in some of the said cases have, according to the present practice of such respective courts, an opportunity of postponing their trials to a distant period, by means of imparlances in the said several courts of king's bench, and by time being given to try in such respective courts of session;" and after making certain provisions with respect to prosecutions in the superior courts, proceeds to enact, "That where any person shall be prosecuted for any misdemeanour by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery within that part of Great Britain called England, or in Ireland, having been committed to custody, or held to bail to appear to answer for such offence twenty days at the least before the session at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session, or session of gaol delivery, respectively, unless a writ of certiorari for removing such indictment into his majesty's courts of king's bench at Westminster or in Dublin, respectively, shall be delivered at such session before the jury shall be sworn at such trial”(w). And such writ of certiorari may be applied for and issued before such indictment has been found, in the like cases, in the same manner, and upon the same terms and conditions, as if such writ of certiorari had been applied for after such indictment had been found (x). And the same statute enacts, "That where any person shall be prosecuted for any misdemeanour by indictment, at any session of the peace, session of oyer and terminer, or session of gaol delivery, within that part of Great Britain called England, or in Ireland, not having been committed to custody or held to bail to appear to answer for such offence twenty days before the session at which such indictment shall be found, but who shall have been committed to custody or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found twenty days before such subsequent session, he or she shall plead to such indictment at such subsequent session, and the trial shall proceed

(w) 60 G. III. c. 4, s. 3.

(r) Section 4.