Re-examination. Examination by the Court. Office of counsel even if he be merely sworn and not examined in chief, he 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; but he can only put questions on matters touched on or referred to in the cross-examination. Where, however, any new matter occurs to him 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, it is, of course, for the Court also to put any questions suggested on the new matter by the other side; and when the examining counsel puts them, his adversary has, of course, the right of cross-examining upon them. When the examinations of each witness by counsel are concluded, any of the justices may put such questions as occur to them 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 of the inquiry. § 13. OF THE DEFENCE, REPLY, AND SUMMING UP. When the case for the prosecution is closed, the chairfor a prisoner. man, in all cases where the prisoner has no counsel, and in cases of felony, though he has counsel, asks him what he has to say in answer to the charge. In cases of felony, the prisoner's counsel has never a right to address the Objections ad- jury on the merits of the case; but he may now submit to the bench any point of law arising on the evidence, or dressed to the (m) Phillips v. Eamer, 1 Esp. N. P. C. 356. case. any absolute deficiency of proof as to a part of the Court on the charge which may entitle his client to an acquittal. Thus, prosecutor's he may submit that there is no evidence of any part of the offence occurring within the county where the trial is had; that there is a substantial variance between some material allegation and the proof offered to support it; that the offence, supposing the evidence to be credible, does not amount in law to that which is charged, as that an appropriation charged as a larceny is a mere breach of trust, or an embezzlement; for these are matters which shew 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 home to his client at all; and if the bench think so, they will direct an acquittal; but counsel will not be permitted to argue on the slightness of the evidence where there is any applicable to the prisoner, or to discuss questions which are properly for the jury, as questions of knowledge and intention. 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 (if he has more than one) replies; after which the justices deliberate, and the chairman collects their votes, and 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. (0) Where a case is found sufficient to be submitted to the Address of pri (0) An attempt to explain a legal objection to a jury, or an address which seems, in such a case, to leave any thing 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 may be safely adopted at sessions. The Chief Justice, on acceding to an objection, merely says to the jury, "Gentleman, 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 says, "Gentlemen, you say the defendant is not guilty;" to which, of course, they assent, and the verdict is recorded. soner. Address of de sel. jury, the prisoner, in case of felony, and the defendant, or his leading counsel, in case of misdemeanor, is entitled to address them. Where the party accused is obliged to defend himself, any statement which he may make ought to be most patiently and attentively heard, considering the great disadvantages under which he labours; and although it is not made on oath, and not supported by proof, still if it carries with it the appearance of sincerity, and 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. In cases of misdemeanor, the counsel for the defendant fendant's coun- is at full liberty to comment on the entire case for the prosecution; and, if he thinks it discreet to adduce evidence, he 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, nor introduce new facts, unless he proposes to establish them by witnesses. 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 to contradict directly the statement of the witnesses for the prosecution; or of evidence tending to shew that the prisoner could not be guilty of the crime, because he was in another place at the period when it is said to have occurred, and which is popularly called an alibi; or of evidence calculated to shew that the witnesses for the prosecution are unworthy of credit, by contradicting them upon points of their evidence relative to the transaction; or, lastly, of evidence tending to show the improbability of the prisoner's guilt, by proving that he has borne a character for qualities the reverse of those which would produce the criminality imputed. Only the two last of these grounds of defence require observation here, because they only involve questions of evidence differing from those which govern the proofs in support of the charge. 1. As to discrediting witnesses.—It is a general rule that where it is proposed to discredit a witness, by showing that, on another occasion, he has given a different account of the transaction, he must be first cross-examined as to such account, and the subject brought distinctly to his memory.(p) When this is done, evidence of declarations, (p) The Queen's case, 2 Brod. and Bing. 311. or of acts inconsistent with his testimony, on matters relevant to the issue, and which he has denied, may be admitted. (q) But, if he has been asked whether he committed a crime, or has been in prison, or of any other matter intended to affect his general credit, and has denied the imputation, evidence cannot be received to shew that his denial is false; or else the time of the Court might be occupied in the trial of a number of collateral circumstances on which neither the witness nor those who call him may be supposed ready to enter. (r) Thus, where a witness, on the trial of his master for felony, was asked whether he had not been charged with robbing the prisoner and also whether he had not threatened to be revenged of him and to fix him in gaol, and denied both; on the offer of evidence in contradiction, it was holden that the answer as to the charge of robbery against the witness was conclusive; but that on the latter, as the words might have reference to his testimony on the pending indictment, evidence might be received to shew that the words were spoken by the witness. (s) It is in no case allowable to adduce evidence to prove that the witness is unworthy of credit because he has been guilty of a crime or a number of crimes as to which he has not been examined; the reverse was strenuously contended for in the case of the King v. Watson, for high treason, in reference to Castles, the principal witness for the crown; and the judges then, without requiring the Attorney-General to reply, disallowed the evidence as clearly inadmissible. (t) The only general evidence to discredit a witness allowed in any case (except the production of a record of conviction to disqualify him in point of law) is that of witnesses who state that they would not believe him on his oath. This is the simple answer which such witnesses can be allowed to give on examination in chief; but they may be crossexamined as to the grounds of their opinion, and, unless they can give some very satisfactory reasons, little weight will be attached to such a statement. It is obvious that such an assertion is easily made and hardly supported. Its admission seems inconsistent with the principle, that irrelevant facts shall not be allowed to heap infamy on a witness, since such an answer can only be supported as the result of facts known to the party who makes it; and, in (9) De Jailly v. Morgan, 2 Esp. N. P. C. 691. Evidence to character how far admissible. Effect of evi ter. practice, judges are in the habit of directing juries that it is worthy of very little attention. 2. Evidence to character.-A party accused is always permitted to call witnesses, who have been more or less acquainted with him, to bear testimony to the character he has maintained in respect of the qualities which are inconsistent with the imputed offence; as, to his character for honesty, on a charge of stealing; to his humanity, on a charge of violent assault; to his loyalty, on a charge of sedition or libel. These witnesses will be permitted to speak to general character only, and not to particular actions; but they may be allowed to state their peculiar means of knowledge, as, that the prisoner was in their employ and trusted by them; and the jury may draw the inference of the value of character derived from such sources. As to the effect of character, and the manner in which dence to charac- it should be left to the consideration of the jury, it may be observed, that it is rather difficult to understand the general practice of some very learned judges on the subject. On this point, the following observations recently published by a criminal lawyer of great experience and learning, (u) and far removed from the imputation of rashness, are well worthy of the attention of justices who may preside in sessions :-" It has been usual to treat the good character of the party accused as evidence to be taken into consideration only in doubtful cases. Juries have generally been told, that where the facts proved are such as to satisfy their minds of the guilt of the party, character, however excellent, is no subject for their consideration; but when they entertain any doubt as to the guilt of the party, they may properly turn their attention to the good character which he has received. It is, however, submitted, with deference, that the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case. The nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail; but the more correct course seems to be, not, in any case, to withdraw it from consideration, but to leave the jury to form their conclusion upon the evidence, whether an individual, whose character was previously unblemished, (u) Mr. Serjeant Russell, in the last edition of his work on Crimes and Misdemeanors, vol. 2. p. 703, 4. |