Provided always, that if such demand shall not be made before the day appointed for the commencement of the assize or session at which the trial of the person on whose behalf such demand shall be made is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial shall be of opinion that such copy may be made and delivered without delay or inconvenience to such trial; but it shall nevertheless be competent for such judge, &c. if he shall think fit, to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged.

Where a witness had made a deposition before a magistrate in a case of felony, and at the trial sworn to a conversation he had had with the prisoner, his deposition must be put in and read to him or by him, before it can be proved for the prosecution that he did not state that conversation before the committing magistrate (u).

Prisoners under Trial may inspect the Depositions.]-And by 6 & 7 W. IV. c. 114, s. 4, persons under trial shall be entitled, at the time of their trial, to inspect, without fee, all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had.

By the first of the "Regulations of Practice to be observed on Trials for Felony where the Prisoner has Counsel," which, at a meeting of twelve out of the fifteen judges before the Spring Circuit in 1837, seemed to be the course which the judges present thought most advisable to adopt under this act, it is stated that "where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and that such deposition must be read as part of the evidence of the cross-examining counsel" (v).

An exception to this rule has been allowed where the magistrate has not returned a cross-examination by the prisoner's attorney, which the witness admits (w). In the same case, it was held that the deposition

(u) Erskine, J., in Reg. v. Henry Lemon Taylor, Berks Spring Ass. 1839, 8 C. & P. 726.

(v) As to the effect of this course in giving the reply to the prosecutor, see

the rest of these Regulations, post, p. 580, 581.

(w) R. v. Edwards and Woodcock, 8 C. & P. 26. Cor. Littledale and Coleridge, Js., with Mr. Recorder Law.

of a witness for a prosecution may be put into his hand by the prisoner's counsel, who may desire him to look at it and refresh his memory, and may then ask him whether he would adhere to the statement he had just made in chief. If he cannot read, the officer may read it over to him. Though the resolutions of the judges are binding on the prisoner's counsel, a judge may, if he think fit, himself question a witness as to any discrepancy which appears between his deposition and his evidence at the trial. Whether the prosecutor's counsel has right to reply on facts thus elicited, does not appear (x).

Second Regulation. That after such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness, as to any supposed contradiction or variance between the testimony of the witness in court and his former deposition, after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has addressed the jury, will be entitled to the reply; and in case the counsel for the prisoner comments upon any supposed variance or contradiction, without having read the deposition, the court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it.

Third Regulation. That the witness cannot in cross-examination be compelled to answer whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event, the counsel for the prisoner may proceed with his cross-examination, and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of his testimony; and if the witness denies that he made such statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evidence, and counsel for the prosecution will be entitled to reply.

Re-examination.]-After the cross-examination is finished, the counsel, by whom the witness was called, is entitled to re-examine, for the purpose of explaining any matter into which confusion may have been introduced by the questions of his adversary. So he may ask questions to show inducements the witness has had to betray the party who called him, by answering unfavourably on cross-examination (y). But the questions must be confined to matters touched on or referred

(x) R. v. Edwards and Woodcock, 8 C. & P. 26.

(y) Dunn v. Aslett, 2 M. & Rob.

122.

to in the cross-examination. Where, however, any new matter occurs to the counsel as important, he may request the court to examine respecting it, or allow him to do so; and this indulgence, if properly asked, is always granted. When the questions are put by the court, as is the regular course, it is also of course for the court to put any questions suggested on the new matter by the other side; and when the examining counsel is himself suffered to put them, his adversary has, of course, the right of cross-examining upon them.

Examination by the Court or Jury.]—When the examinations of each witness by counsel are concluded, any of the justices or jurors may put such questions as occur to him to be fitting for the further elucidation of the matter in issue; and for this purpose, the court may recall a witness at any stage whatever of the inquiry, even after the case for the prosecution is closed, and an objection has been taken to the evidence (x). Counsel may cross-examine on this evidence (y). So a witness may be recalled at request of a juror (z).

SECTION XIII.

OF THE DEFENCE, REPLY, AND SUMMING-Up.

Office of Counsel for a Prisoner.]-When the case for the prosecution in felony is closed, the chairman, in all cases where the prisoner has no counsel, asks him what he has to say in answer to the charge. And in cases of felony, a prisoner's counsel has now the same right to address the jury on the merits of the case, which he formerly had in misdemeanour only; for by sect. 2 of 6 & 7 W. IV. c. 114, which came into operation 1st October, 1836, "all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law, or by attorney in courts where attornies practise as counsel." He may also now submit to the bench any point of law arising on the evidence, or any deficiency in proof of a part of the charge, which may entitle his client to an acquittal. Thus, he may suggest that there is no evidence that any part of the offence occurred within the county where the trial is had, or within 500 yards of its boundary; that there is a substantial variance between some material allegation and the proof offered to support it; or that the offence, supposing the

(x) R. v. Remnant, R. & Ry. 136. (y) R. v. Watson, 6 C. & P. 653.

(z) Post, p. 585.

evidence to be credible, does not amount in law to that which is charged, e. g. that an appropriation charged as a larceny is a mere breach of trust, or such an embezzlement as is only a misdemeanour (a); for these are matters which show that the prisoner ought not to be put on his defence. He may sometimes submit that there is nothing for the jury to consider, as when the charge is not brought near to his client by any evidence in the case; and, if the bench think so, they will direct an acquittal; but no question can be thus withdrawn from the inquiry, where there is any evidence, however slight. On the other hand, if there is no legal evidence as to which the court is to judge, they must direct the jury to acquit. Where an objection is taken which the bench do not immediately overrule, the counsel for the prisoner are first heard in its support; the counsel for the prosecution then give their answer to it seriatim; and the leading counsel for the prisoner replies; after which the justices deliberate, and the chairman, after collecting their votes, announces their decision. Where the objection relates to the absence of some formal proof, which can be immediately supplied, the court always allows such proof to be given, for it will not permit justice to be defeated by a mere accidental omission of counsel. When the bench has decided that the case for the prosecution has failed in point of law, the chairman ought not to recommend but to direct the jury to acquit, and the officer ought immediately to take and record the verdict (b).

Address of Prisoner or his Counsel.]-Where the case proved is sufficient to be submitted to the jury, the accused is now entitled to address them, and to comment on the entire case for the prosecution. The counsel for the accused had always the same right in misdemeanours, but not in felonies, till 6 & 7,W. IV. c. 114, (see last page,) and if he thinks it discreet to adduce evidence, may open that evidence to any extent, and with any particulars which he may think proper; but he must not assume as proved that which is not proved,

(a) See 7 & 8 G. IV. c. 29, s. 51, as to pledging goods or bills of lading, by factors.

(b) An attempt to explain a legal objection to a jury, or an address which seems, in such a case, to leave anything to them, can only produce confusion and delay. In fact, as the prosecution has, in point of law, failed, there is nothing for them to consider, the party accused being, in point of law, entitled to an acquittal. The course, therefore, invariably adopted at the nisi prius sittings

of the court of king's bench, by the late Lord Tenterden, may be safely adopted at sessions. That learned chief justice, on acceding to an objection, merely said to the jury, "Gentlemen, I am of opinion that, in point of law, the case has failed, and therefore you will say that the defendant is not guilty;" on which the officer immediately said, "Gentlemen, you say the defendant is not guilty;" to which they assent, of course, and the verdict is recorded.

nor is he at liberty to introduce new matter, whether it be the prisoner's story or not, unless he proposes to establish it by legal evidence (6). and if in point of fact he does introduce the prisoner's account of the facts without intending to support it by evidence, the prosecutor will have a reply (c). It was formerly held on the trial of misdemeanours, that an accused who addressed the jury in person, must also examine and cross-examine the witnesses without the assistance of counsel in conducting that part of his case, though he might have it for suggesing questions to him and arguing such points of law as arise (d). Since 6 & 7 W. IV. c. 114, not the least acute of the judges acceded to the application of counsel for a prisoner charged with felony, that the latter should be permitted to state his own story in his own way to the jury, and that he, the counsel, should be afterwards heard (e). But this will only be allowed in very special cases indeed (ƒ). Where the party accused is obliged to defend himself, any statement which he may make ought to be most attentively heard, considering the disadvantages under which he labours; and although it is not made on oath, or supported by proof, still, if it offers a reasonable explanation of the circumstances which seem to bear against him, it ought to be carefully weighed and candidly estimated by a jury.

Where several persons are jointly indicted either for felony or misdemeanour, and are defended by different counsel, each counsel may cross-examine for his client, and each address the jury.

Evidence in Answer to the Charge.]-It is, of course, impossible to lay down general rules for the conduct of defences. They may consist of evidence tending to explain the circumstances on which a charge mainly rests; or of the evidence of witnesses present at a transaction tending to contradict directly the statement of the witnesses

(b) If a case were necessary, R.v. Beard, 8 C. & P. 142, might be mentioned.

(c) Reg. v. Butcher, 2 M. & Rob. 228, per Coleridge, J.; and see R. v. Bignold, ante.

(d) R. v. Parkins, 1 C. & P. 548; Ry. & M. C. N. P. 166, S. C.; R. v. White, 3 Campb. 98. See 1 M. & Rob. 254, Shuttleworth v. Nicolson.

(e) Alderson, B., in R. v. Malings, 8 C. & P. 242. The learned judge alluded to the practice in high treason; however, Gurney, B., desired that this course should not be drawn into a precedent, Reg. v. Walkling, 8 C. & P. 243; and Bosanquet, J., held, that where a prisoner (even in misdemeanour) is de

fended by counsel, he has no right to make two statements to the jury, one by himself, the other (and later) by his counsel, Reg.v. Burrows and two others, 2 M. & Rob. 124. Coleridge, J., refused to hear a prisoner, for felony, after his counsel had addressed the jury, R. v. Boucher, 8 C. & P. 141.

(f)" For, if what the prisoner states is merely a comment on what is already in evidence, his counsel can do that much better than he can; whereas if he states as a fact any thing which could not be proved by evidence, the jury should dismiss that statement from their minds." Per Patteson, J., in Reg. v. Mary Rider, 8 C. & P. 539.