Where, on an indictment for murder, the jury returned a verdict, in writing, in the following words: "Guilty of murder, with a recommendation to mercy, as there is no evidence to show malice aforethought and premeditation":-Held, that the verdict was too ambiguous and uncertain to allow the Court to pronounce any judgment upon it. (a)

A recommendation to mercy is no part of the verdict. (b)

If it were shewn that, upon the jury delivering their verdict in open Court, anything was openly said by them which could give the Court to understand that they were not openly assenting to that verdict, and, nevertheless, by some error or misapprehension, it was received as their unanimous verdict, the Court could, and ought to, interfere on such ground, and grant a new trial, when such a course was authorized by our criminal practice. (c)

A jury may correct their verdict, or any of them may withhold assent and express dissent therefrom, at any time before it is finally entered and confirmed.(d)

It is irregular for counsel to question the jury directly, and not through the Court, as to the grounds of their verdict. (e)

It would appear that the right of a jury to find a general verdict, in a criminal case, and to decline to find the facts specially, cannot be questioned, especially when the verdict is one of acquittal. (ƒ)

It is doubtful whether a verdict can be received and recorded on a Sunday. (g)

(a) Reg. v. Healey, 2 Thomson, 331.

(b) See Reg. v. Trebilcock, 4 U. C. L. J. 168; Dears. & B. 453.

(c) Reg. v. Fellowes, 19 U. C. Q. B. 50, per Robinson, C. J.; and see Reg. v. Ford, 3 U. C. C. P. 217-8, per Macaulay, C. J.

(d) Reg. v. Ford, supra, 217, per Macaulay, C. J.

(e) Ib.

(f) Reg. v. Spence, 12 U. C. Q. B. 519.

(g) Winsor v. Reg. L. R. 1 Q. B. 308-317-322,

The Con. Stats. U. C., c. 113, 20 Vic., c. 61, has been repealed except sections 5, 16 and 17. By the 32 & 33 Vic., c. 29, s. 80, no appeal lies to the Court of Error and Appeal in any criminal case where the conviction has been affirmed, by either of the Superior Courts of common law, on any question of law reserved for the opinion of such Court.

Prior to the 20 Vic., c. 61, an appeal lay to the Superior Court, on any question reserved by the Sessions, or a Court of Oyer and Terminer, under the 14 & 15 Vic., c. 13. The latter Statute has not been repealed, and a question, reserved at the Sessions, or at a Court of Oyer and Terminer, may be adjudicated on by the Superior Court in Banc.

The following rules may still apply to the unrepealed Statute :

1stly, In all cases of appeal from the judgment of the Court of Quarter Sessions, under the said Statute, notice of such appeal shall be given by the person convicted, or his attorney, to the county attorney for the county in which the conviction shall have taken place, within six days from the time of sentence being passed; or, in case there shall be no county attorney for such county, then to the Clerk of the Peace thereof; and an affidavit of service of such notice shall be filed in the Superior Court appealed to, with the papers directed by the said Statute to be transmitted from the Court of Quarter Sessions.

2ndly, A copy of the indictment, and of any subsequent pleadings, and of the verdict endorsed upon the indictment, shall be sent with the proceedings directed by the said Statute to be transmitted; and that, where the new trial has been moved for, upon the ground that the evidence did not warrant the conviction, a full statement of the evidence shall be sent with the case, signed and certified in the same manner.

3rdly, Every case sent from the Quarter Sessions shall state whether judgment on the conviction was passed or postponed, or the execution of the judgment respited; and whether the person convicted is in prison, or has been discharged on recognizance of bail to appear and receive judgment

4thly, In every such case of appeal from a Court of Quarter Sessions, the original case, signed by the Recorder or Chairman of the Court, and four copies of such case, one for each Judge and one for the county attorney or other counsel for the Crown, shall be delivered to the Clerk of the Court appealed to, at least four days before the sitting of the said Court; provided that, where the new trial has been moved upon the evidence only, one copy of the report of the evidence in full need be filed, in addition to the statement of the evidence which has been certified; and that, when any case is intended to be argued by counsel, or by the parties, notice thereof be given to the Clerk of the Court appealed to, at least two days before the day appointed for argument, which shall be one of the paper days during the term.

In Reg. v. Beckwith, (a) effect was given to an objection that rules numbers 5, 6 and 7, under this Act, were not complied with.

The Court has no power to order a new trial, or to prevent a verdict of guilty from going into effect, on a criminal case reserved under the 14 & 15 Vic., c. 13, but only to decide upon any particular legal exceptions raised upon the pleadings, or the evidence, or upon the general question, which is strictly one of law, whether there was legal evidence to sustain the indictment, taking it in as strong a sense against the defendant as it will bear, and (a) 8 U. C. C. P. 274.

supposing the jury to have given credit to it to its full extent. (a)

The question, can there be a new trial in case of felony is one which may be properly reserved. (b)

No case can be stated for the opinion of the Court for Crown cases reserved, except upon some question of law arising upon the trial. Where, therefore, the prisoner had pleaded guilty, and the question asked was, whether the prisoner's act, as described in the depositions, supported the indictment; the Court held that they had no jurisdiction to consider the case. (c)

When a case is reserved, under the Con. Stats. U. C., c. 112, the Court may arrest the judgment, with a view to a new indictment being preferred, or for other purposes. (d)

In Reg. v. McEvoy, (e) the Court, under the facts shewn, considered they might either enter an arrest of judgment, under the Statute, or direct judgment to be given as for a misdemeanor at common law; but the latter course was adopted because it was doubted whether the judgment could properly be arrested, where the indictment, though framed imperfectly, as for an offence against a Statute, does contain a sufficient charge of an offence at common law.

It would seem that the objections, on a motion to arrest the judgment, are confined to the points reserved under the Statute. (f)

Where, on an appeal from a conviction affirmed at the Sessions, it appeared that the point in question was purely

(a) Reg. v. Baby, 12 U. C. Q. B. 346.

(b) Reg. v. D' Aoust, 10 L. C. J. 221, per Mondelet, J.; S. C. 16 L. C. R. 493, per Meredith, J.

(c) Reg. v. Clark, L. R. 1 C. C. R. 54; 36 L. J. (M. C.) 16.

(d) Reg. v. Rose, 1 U. C. L. J. 145; Reg. v. Spence, 11 U. C. Q. B. 31; Reg. v. Orr, 12 U. C. Q. B. 57. See ante p. 234; Reg. v. Spence, infra.

(e) 20 U. C. Q. B. 344.

(f) Reg. v. Fennety, 3 Allen, 132.

one of law, and there could be no object in sending the case down for a new trial, the judgment was arrested. (a)

The Court may, in certain cases, stay the entry of judgment until a new indictment is preferred, but, in such case, the indictment must be removed by certiorari. (b)

In criminal matters, foreign law should not be brought before the Court. (c) American authorities, though entitled to respect, will not be received as binding in our Courts. (d) Nor are English decisions absolutely binding in this country. (e)

If, after a verdict of guilty of felony, and when the Judge is about to pass sentence, objections are made by the prisoner's counsel in arrest of judgment, but overruled by the Judge trying the cause, the Court in Banc has authority to enquire into the validity of these objections, though the record does not state that the prisoner's counsel moved in arrest of judgment. The presence of the prisoner at the argument may be waived by consent of parties. (f)

The Court of Queen's Bench, in appeal, will adjudicate on a reserved case of misdemeanor in the absence of the defendant, who has fled beyond the jurisdiction of the Court. (g)

Where a man charged with felony is being tried, whatever may have been his position in life, he must take his place in the dock; but the misdemeanant, if on bail, is not obliged to do so. (h)

In criminal cases, it is always entirely in the discretion

(a) Reg. v. Rubidge, 25 U. C. Q. B. 299.

(b) Reg. v. Spence, 12 UT. C. Q. B. 519.

(c) Notman v. Reg. 13 L. C. J. 259, per Duval, C. J.

(d) Roberts v. Patillo, 1 James, 367; Reg. v. Creamer, 10 L. C. R. 404.

e) Reg. v. Roy, 11 L. C. J. 92.

(f) Reg. v. Kennedy, 2 Thomson, 204.

(g) Reg. v. Fraser, 14 L. C. J. 245.

(h) Ex parte Blossom, 10 L. C. J. 69, per Meredith, J.