has or has not committed the particular crime for which he is called on to answer." To these remarks we may be permitted to add that, according to the language frequently adopted by judges in their charges, it is provable that character is, in no case, of any value. They say that "in a clear case character has no weight; but if the case be doubtful—if the scale hangs even-then the jury ought to throw the weight of character into the scale, and allow it to turn. the balance in the prisoner's favour." But the same judges will tell juries" that, in every doubtful case, they ought to acquit," stopping far short of the even balance, and "that the prisoner is entitled to the benefit of any reasonable doubt." In clear cases, therefore, the character is of no avail, and in doubtful cases it is not wanted; it is never to be considered by the jury, but when the jury would acquit without it! The sophism lies in the absolute division of cases into clear and doubtful, without considering character as an ingredient which may render that doubtful which would otherwise be clear; there may certainly be cases so made out that no character can make them doubtful; but there may be others in which evidence given against a person without character would amount to conviction, in which a high character will produce a reasonable doubt, nay, in which character will actually outweigh evidence which might otherwise appear conclusive. It is in truth a fact varying greatly in its own intrinsic value according to its nature; varying still more in its relative value, according to the proofs to which it is opposed; but always a fact, fit like all other facts proved in the cause, to be weighed and estimated by the jury. reply. When the evidence for the party accused has been closed, Evidence in the prosecutor's counsel may offer any evidence in reply which is strictly applicable to the defence, and which could form no part of his original case. Thus he may give specific contradictions to the witnesses on their denials on cross-examination; he may call persons to swear that they would not believe the witnesses on their oaths; and may apply an answer to any matter of excuse which the prisoner has set up, and which he could not anticipate; but he must not make a new case, or seek to fill up the chasms or supply the deficiencies of that on which he originally relied. In cases of misdemeanor, where evidence is offered in reply, the counsel for the defendant has a right to address the jury on such evidence, confining his remarks to its bearings and relations; and, when Of the prosecutor's reply. Summing up. he has finished, the counsel for the prosecution replies on the entire case, and on all the observations which his opponent has made in its progress. In cases of felony, whether witnesses are called for the defence or not, the counsel for the prosecution never replies. In cases of misdemeanor, where witnesses are called (except merely to character), he has always a right of reply, as extensive as that which the counsel for the plaintiff possesses in a civil action. Where witnesses are called merely to character a usage has long prevailed among the counsel, in the highest criminal courts, of forbearing to reply; and this usage, however it originated, is now so established and acted on, that a Court would be justified in refusing to hear any counsel that should insist on replying on such evidence. But an important rule, which was promulgated by Lord Kenyon, has been recently revived by Lord Tenterden, by which a reply is allowed to a counsel for the prosecution, if the counsel for the defendant, in his address to the jury, states any fact, or any document which is not already in evidence, although he afterwards declines to prove the fact, or put in the writing. (x) But it would be scarcely fair to apply this rule to a statement made by a defendant in person, and unsupported by evidence. When the case on both sides is closed, the chairman sums up the evidence. He states the substance of the charge, divesting it of all technical phraseology, which may encumber it, directs the attention of the jury to the precise issue they have to try, and applies the evidence to that issue. Having taken accurate notes of the evi dence (which he will find necessary in case of felony), he will either read over the whole evidence, or state its substance, as the case may seem to his judgment to require : (x) This rule was revived in the case of the King v. Bignold, which was an indictment for perjury, tried at the Nisi Prius sittings of the Court of King's Bench, in Westminster, see 4 D. and R. 70. The Solicitor General (now Lord Chancellor) was counsel for the defendant, and, in the course of his address, stated the contents of a deed which he intended to prove; but afterwards, on communication with his client, sat down, expressing his intention to call no witnesses. Mr. (now Sir James) Scarlett, for the prosecution, claimed a right to reply, and mentioned a case before Lord Kenyon in which Mr. Erskine claimed the right under similar circumstances, and Lord Kenyon sustained it. Abbott, L. C. J., assented to the principle as undoubted, and Mr. Scarlett shortly replied, expressing that he did so in assertion of the right. The defendant was convicted, but judgment was afterwards arrested for matter on the record. Since this case the rule has always been considered in the Court of King's Bench as completely settled. he will always read the whole if requested by the jury; but in many cases this will be found unnecessary, and will rather tend to confuse than to assist them. § 14. OF THE DELIBERATION AND VERDICT OF THE JURY. verdict. When the charge is concluded, the jury proceed to Deliberation of consider of their verdict. When they are not able to the jury on their agree in a convenient time on consultation in the box they retire, and a bailiff is sworn to keep them in the following terms:-"You shall keep this jury without meat, drink, fire, or candle; you shall suffer none to speak to them, neither shall you speak to them yourself, but only to ask them if they are agreed. So help you, God." According to the terms of this oath the jury are to be kept together without meat, drink, fire, or candle, till they are agreed. (y) But the rule has been relaxed in modern times; and, on special application, grounded on illness, the Court has allowed refreshment to be supplied, so that it is not at the expense of the prosecutor or defendant. (z) And the restriction as to candle has been always dispensed with on the retirement of a jury at night, when they require the inspection of documents which have been given in evidence. If the jury eat without permission after they leave the box, they are fineable; but their breach of the rule in this respect will not avoid their verdict. If they separate after they have left the box, it is doubtful whether they can return any verdict; (a) but a separation during the trial is no objection to their verdict; and it is frequently agreed to in cases of misdemeanors, where the trial lasts more than a single day, the jury engaging to allow no one to speak to them on the subject of the trial. In cases of felony or treason, where an adjournment is necessary, accommodations are provided for the jury by the sheriff, and they remain together or attended by an officer, till their verdict is given. But the further consideration of this subject is unnecessary, as cases of such length scarcely ever occur at sessions. . When the jury retire, they may take with them any papers which have been proved in the cause. If any difficulty suggests itself to them in point of law, they may return into (y) Co. Lit. 227. (z) Refreshment, after a long confinement, was allowed at Gloucester Summer Assizes, 1828, by Mr. Justice Gazelee, in the case of "Morris v. Davis;" and, ultimately, being unable to agree, the jury were discharged without giving any verdict. (a) The King v. Kinnear, 1 Chit. R. 162. Withdrawing a juror. The verdict. court and receive the assistance of the bench; and if they desire to examine again any witness who has been called, they may request that he may be called again for their satisfaction, and the request will be granted; but they can ask him no question except in open court. (b) If one of the juryman die before the verdict is given, the survivors must be discharged, for the eleven can return no verdict; but a new indictment may be preferred against the prisoner. A juror cannot be withdrawn in case of felony, even with consent of the prisoner. In cases of misdemeanors a juror may be withdrawn by consent of the prosecutor and defendant, but not without it. (c) By this course, one of the jurors being allowed nominally to withdraw, the rest are discharged from giving any verdict. This course is sometimes suggested by the Court, in cases of a personal kind, as assaults, with a view to a reconciliation between the parties, or that neither may have a triumph. The jury having agreed, signify that they are ready to deliver their verdict. They may, as we have already seen, (d) find a prisoner or defendant guilty on one count, and acquit him on others; or they may find him guilty of a part of a count where a substantive offence is charged and proved, and acquit him of the mere aggravations, provided the offence of which they convict him is of the same kind with that which the indictment sets forth, and is included in it. Thus, on an indictment for stealing from the person, or in a dwelling-house, they may find the prisoner guilty of stealing, but not from the person, or not in the dwelling-house; for the lesser charge is included in the greater, and both are felonies, although subjecting the offender to punishments differing in severity. Thus, on an assault with intent to ravish, they may find the defendant guilty of a common assault, and acquit him of the intent; for both are misdemeanors, though the aggravated assault is punishable with hard labour, and the common assault with fine and imprisonment only. But they cannot find a prisoner guilty of a misdemeanor on an indictment for a felony; nor of a felony on an indictment for a misdemeanor, for the modes of trial differ. (e) If they deliver a verdict which plainly amounts in law to an acquittal, as, on an indictment for receiving,-"guilty of (c) Carth. 464. (b) 2 Hale, 296. (d) Ante, 351. (e) See ante, p. 187. as to the statutable provision in case a larceny be proved on an indictment for obtaining goods under false pretences. receiving, but not knowing the goods to be stolen;" on an indictment for larceny,-guilty of having the goods in his possession, but not of stealing them;" on an indictment for an assault,-"guilty of the assault, but it was in selfdefence" the chairman should direct them to acquit; but, if their meaning is expressed in doubtful terms, he should explain to them exactly the points by which their verdict must be governed, and send them back to re-consider it. The jury have a right to deliver a special verdict, that is, Special verdict. a verdict finding all the facts specially, and leaving the Court to give judgment according to their legal effect. Such verdict must find all the circumstances distinctly as facts, for the Court cannot supply any thing by implication or inference. If the circumstances so found do not substantially support the indictment (with the qualifications already referred to), no judgment can be passed, although they may shew the prisoner to be guilty of a different offence. (f) Where the judges of assize entertain doubts on points of law raised on behalf of a prisoner, it is usual for them to reserve the point for the opinion of the twelve judges. But the justices at sessions have no power to do so; they can only adjourn the session till they have themselves determined on the question; for the judges will take no cognizance of a point reserved on an indictment at sessions. Fortunately, the cases which usually come before the sessions are of a kind in which substantial justice at least may be attained without the necessity of such a reference. the verdict. If the jury have retired to deliberate, when they return Proceedings at into court to deliver the verdict, their names must be called the delivery of over, and all the twelve must be within hearing when it is given. (g) The officer then in case of felony desires the prisoner to hold up his hand, and addresses the jury, Gentlemen, are you agreed in your verdict; how say you, is A. B. guilty of the felony whereof he stands indicted, or not guilty?" The foreman delivers the verdict guilty or not guilty. It was formerly necessary in felonies to inquire as to the prisoner's goods, and whether he fled; but these forms are now abolished, and the province of the jury is confined to the simple issue of guilty or not guilty. (h) In case of felony, this verdict can only be received in open court, and in the prisoner's presence, though the Court may be adjourned during the deliberation. (i) In cases of (f) 2 Stra. 1015. (g) The King v. Wooller, 2 Stark. N.P.C. 111. |