sh the indictment in all cases where it appears to be so defective that Send in defendant cannot be convicted on it, and where the prosecution aprs to be bona fide, and not instituted from malicious motives or for Choppression. Where the prosecution is by the attorney-general, an application to quash the indictment is never made, because he may enter a nolle prosequi, which will have the same effect. Stratton's case, 1 Doug. 239, 240.

The application to quash must be made in the court in which the bill is found, except in cases of indictments at sessions, and in other inferior courts, in which cases the application is made to the Court of Queen's Bench, the record being previously removed there by certiorari. Archb. C. L. 62, 7th ed.

The application, if made on the part of the defendant, must be before plea pleaded. Fost. 231. Rookwood's case, Holt, 684, 4 St. Trials. Where the indictment had, upon the application of the defendant, been removed into the Court of King's Bench by certiorari, *the court [*218] refused to entertain a motion by the defendant to quash the indictment after a forfeiture of his recognizance, by not having carried the record down to trial. Anon. 1 Salk. 380.

But if the application be on the part of the prosecution, it seems it may be made at any time before the defendant has been actually tried upon the indictment. Webb's case, 3 Burr. 1468.

Before an application of this kind on the part of the prosecution is granted, a new bill for the same offence must have been preferred against the defendant, and found. Wynn's case, 2 East, 226. And when the court orders the former indictment to be quashed, it is usually upon terms, namely, that the prosecutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment. Webb's case, 3 Burr. 1469; that the second indictment shall stand in the same plight and condition to all intents and purposes that the first would have done if it had not been quashed; Glen's case, 3 B. and Ald. 373 (a), Webb's case, 3 Burr. 1468, 1 W. Bl. 460; and (particularly where there has been any vexatious delay on the part of the prosecution, 3 Burr. 1458,) that the name of the prosecutor be disclosed. Glen's case, supra. Arch. C. L. 62, 7th ed.

No advantage can be taken at nisi prius of the objection where it fully appears upon the record. Souter's case, 2 Stark. N. P. 423 (b).

But where the indictment comes on for trial as a nisi prius record, and it is found to be so framed that no judgment can be given upon it, the judge, it is said, will order it to be struck out of the paper, and if the jury have been sworn, will direct them to be discharged. Carr. Suppl. C. L. 82, 2d ed. But counsel will not be allowed to argue at length at nisi prius, the invalidity of an indictment, for the purpose of inducing the court not to try it, though it may be convenient to permit them to suggest the 'point. Abraham's case, 1 Moody and Rob. 7.

Particulars of the offence.] Where an indictment for a nuisance contained twelve counts, describing the nuisance in different ways, and charging it to have been committed in different parishes and counties within. the jurisdiction of the Central Criminal Court; that court, on reading the

(a) Eng. Com. L. Rep. v. 319. (b) Id. iii. 413.

indictment only (which had been removed by certiorari) and without affidavit ordered the prosecutor to give the defendant a note of the several acts of nuisance which he intended to prove. Curwood's case, 3 A. and E. 815 (a).

With respect to particulars of the offence in cases of barratry and embezzlement, see those titles.

Opening the case-conversations and confessions.] Where there is counsel for a prisoner in a case of felony, the counsel for the prosecution ought always to open the case. Gascoine's case, 7 C. and P. 772 (b). But he need not open it if the prisoner has no counsel, Jackson's case, Id. 773 (c), unless there is some peculiarity in the circumstances, per Parke, B., Bowler's case, Id. (d).

Where there is no counsel for the prosecution there can be no opening, as the prosecutor himself is never allowed personally to address the jury. Brice's case, 2 B. and Ald. 606.

[ *219 ] *Where the counsel for the prosecution was proceeding to state the details of a conversation which one of the witnesses had had with the prisoner, upon an objection being taken, the court said that in strictness he had a right to pursue that course, Deering's case, 5 C. & P. 165 (e), 7 C. and P. 773 (ƒ), and the same rule was laid down in Swatkins's case, 4 C. and P. 548 (g), but the judges in that case stated, that the correct practice was only to state the general effect of the conversation. 5 C. and P. 166, (n.) (h). In a later case, however, Parke, B., after consulting Alderson, B., ruled that with regard to conversations, the fair course to the prisoner was to state what it was intended to prove. Orrell's case, MS. Lanc. Sp. Ass. 1835; 1 Moo. and R. 467; Hartel's case, 7 C. and P. 733 (i); Davies's case, Id. 785 (k).

The rule is different with respect to confessions which it has frequently been held, ought not to be opened, as they may turn out to have been made under circumstances rendering them inadmissible in evidence. Per Bosanquet and Patteson, JJ., Swatkins's case, 4 C. and P. 548 (l); Hartel's case, supra, (n.) Per Parke, B., Davis's case, supra.

Prisoners' counsel act.] Until recently, prisoners charged with felony were not allowed to make their defence by counsel, but now by the 6 & 7 Wm. 4, c. 114, after reciting that "it is just and reasonable that persons accused of offences against the law should be enabled to make their full answer and defence to all that is alleged against them," it is enacted that "all persons tried for felony 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 attorneys practice as counsel."

And by s. 2, "in all cases of summary conviction, persons accused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney."

A prisoner's counsel, in addressing the jury, will not be allowed to state any thing which he is not in a situation to prove, or which is not already

(a) Eng. Com. L. Rep. xxx. 228. (b) Id. xxxii. 729. (c) Id. (d) Id. (e) Id. xxiv. 257. (f) Id. xxxii. 730. (g) Id. xix. 520. (h) Id. xxiv. 25. (i) Id. xxxii. 730. (k) Id. 736. (1) Id. xix. 520.

in proof; neither will he be allowed to state the prisoner's story; for, if he employs counsel, he must submit to the rules which have been established with respect to the conducting of cases by counsel." Per Coleridge, J., Beard's case, 8 C. and P. 142 (a). And after his counsel has addressed the jury, the prisoner will not be permitted to make any statement to them. Boucher's case, Id. 141 (b).

Where, however, in a case of shooting with intent to do grievous bodily harm, there was no one present at the committing of the offence but the prosecutor and the prisoner, Alderson, B., allowed the latter, under these peculiar circumstances, to make his own statement before his counsel addressed the jury. Maling's case, 8 C. and P. 242 (c). And the same course was permitted by Gurney, B., in another case, but with an observation that it ought not to be drawn into a precedent. Walk- [ *220 ] ing's case, Id. 243 (d). "The general rule certainly ought to be, that a prisoner defended by counsel should be entirely in the hands of his counsel, and that rule should not be infringed on except in very special cases indeed." Per Patteson, J., Rider's case, 8 C. and P. 539 (e),

The third and fourth clauses of the foregoing act, entitling prisoners to copies of the depositions, or to inspect them at the trial, have already been given, ante, p. 67.

At a meeting of twelve of the judges for the purpose of choosing the Spring circuits of 1837, (C. Littledale, J., Bosanquet, J., and Coleridge, J., being absent through indisposition) the following rules of practice, with reference to the above statute, were laid down.

1. 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.

2. 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, 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 variances 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.

3. 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 a statement. In that event the counsel for the prisoner may proceed with his cross-examination; and if the witness admits such statements to have been made, he may comment upon such omission or upon the effect of it upon the other part of his testimony; or 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, callwitnesses to prove that he made such statement. But in either event

(a) Eng. Com. L. Rep. xxxiv. 328. (b) Id. (c) Id. 371. (d) Id. (e) Id. 521:

the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply.

If the only evidence called on the part of the prisoner is evidence to character, although the counsel for the prosecution is entitled to the reply, it will be a matter for his discretion whether he will use it or not: cases may occur in which it may be fit and proper so to do.

In cases of public prosecutions for felony, instituted by the crown, the law officers of the crown, and those who represent them, are in strictness [*221] *entitled to the reply, although no evidence is produced on the part of the prisoner.

The foregoing resolutions of the judges as to cross-examining from the depositions are binding upon the prisoners' counsel; but, it seems that the judge may, if he think fit, notwithstanding those resolutions, himself question a witness as to any discrepancy between his deposition and his evidence at the trial. Edwards' case, 8 C. and P. 26 (a). Quære, whether, if the judge does so, and thereby introduces new facts in evidence, the counsel for the prosecution will have the right to reply? Id.

Where a witness admitted that, when before the magistrate, he was cross-examined by the prisoner's solicitor, the prisoner's counsel was allowed to question him as to the answers he gave, on its appearing to the judge that no cross-examination was returned by the magistrate. Id. But in a more recent case, Erskine, J., said, he was clearly of opinion, that in order to prove that a witness did not state a particular fact before the magistrate, the deposition itself must be put in to show what he did state, and that a witness cannot be questioned as to what he did or did not state before the magistrate, without first allowing him to read, or having read over to him his deposition. Taylor's case, 8 C. and P. 726 (b).

Jury, discharge of] If a juryman be taken ill, so as to be incapable of attending through the trial, the jury may be discharged and the prisoner tried de novo, or another juryman may be added to the eleven; but in that case the prisoner should be offered his challenges over again, as to the eleven, and the eleven should be sworn de novo. Edward's case, Russ. and Ry. 224 (c); 4 Taunt. 309; 2 Leach, 621, (n.) So if during the trial the prisoner be taken so ill that he is incapable of remaining at the bar, the judge may discharge the jury, and on the prisoner's recovery another jury may be returned; and the proceedings commenced de novo. The court, on a trial for a misdemeanor, doubted whether in such a case the consent of counsel was sufficient to justify the proceeding with the trial in the absence of the defendant. Streek's case, coram Park, J., 2 C. and P. 413 (d) (1).

(1) In cases not capital where there is no prospect of agreement, a juror may be withdrawn without the defendant's consent. Commonwealth v. Bowden, 9 Mass. 494. Commonwealth. Wood, 12 Mass. 313. People v. Olcott, 2 Johns. Ca. 301. State v. Woodruff, 3 Day's Cas. 504. People v. Barret & al., 2 Caines, 100. People v. Denton, 2 Johns. Cas.

275.

In capital cases the court may discharge a jury in case of necessity. U. States v. Haskell, 4 Wash. C. C. Rep. 402. Commonwealth v. Cook, 6 S. and R. 580, but mere inability to agree is not such a case, nor does it arise from the illness of some of the jury, if such illness can be removed by permitting refreshments, and the court, against the consent and prayer of the prisoner, refuse such refreshment, unless a majority of the jury agree to receive them. Commonwealth v. Clue, 3 Rawle, 498. If under such circumstances the jury are discharged, the defendant may plead it in bar to another trial. Ibid.

(a) Eng. Com. L. Rep. xxxiv. 280. (b) Id. 604. (c) 1 Eng. C. C. 224. (d) Eng. Com. L. Rep. xii. 195.

When the evidence on both sides is closed, or after any evidence has been given, the jury cannot be discharged unless in case of evident necessity, (as in the cases above mentioned) till they have given in their verdict, but are to consider of it and deliver it in open court. But the judges may adjourn while the jury are withdrawn to confer, and may return to receive the verdict in open court. 4 Bl. Com. 360. And when a criminal trial runs to such length that it cannot be concluded in one day, the court, by its own authority, may adjourn till next morning. But the jury must be kept together, (at least in a capital case) that they may have no communication but with each other. 6 T. R. 527. Stephens' Summary, 313. It is a general rule that upon a criminal trial there can be no separation of the jury after the evidence is entered upon, *and [ *222 ] before a verdict is given. Langhorn's case, 7 How. St. Tr. 497. Hardy's case, 24 Id. 414. In the latter case, on the first night of the trial, beds were provided for the jury, at the Old Bailey, and the court adjourned till the next morning. On the second night, with the consent of the counsel on both sides, the court permitted the jury to pass the night at a tavern, whither they were conducted by the under-sheriff and four officers sworn to keep the jury. Id. 572 (1).

It is not a sufficient ground for discharging a jury, that a material witness for the crown is not acquainted with the nature of an oath, though this is discovered before any evidence is given. Wade's case, 1 Moody, C. C. 86 (a), ante, p. 118.

If it should appear in the course of a trial that the prisoner is insane, the judge may order the jury to be discharged, that he may be tried after the recovery of his understanding. 1 Hale, P. C. 34, 18 St. Tr. 411, Russ. and Ry. 431, (n.) (b).

On a trial for manslaughter, when it was discovered, after the swearing of the jury, that the surgeon who had examined the body was absent, the prisoner praying that the jury might be discharged; they were discharged accordingly, and the prisoner was tried the next day. Stoke's case, 6 C. and P. 151 (c).

Former conviction.] By the 7 and 8 Geo. 4, c. 28, s. 11, for the more exemplary punishment of offenders who commit felony after a previous conviction for felony, it is enacted, "that if any person shall be convicted of any felony, not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment; and in an indictment for any such felony committed after a previous conviction for felony, it shall be sufficient to state that the offender was at a certain time and place convicted of felony, without otherwise describing the previous felony; and a certificate con

(1) If a jury in a capital case separate without giving a verdict, the prisoner is acquitted. State v. Garrigues, 1 Hayw. 241. But in Connecticut it is otherwise. State v. Babcock, 1 Conn. 401. See State v. Hall, 4 Halst. 236. U. States v. Fries, 3 Dall. 515. State v. Anderson, 2 Bailey, 565.

(a) 2 Eng. C. C. 86. (b) 1 Ibid. 431. (c) Eng. Com. L. Rep. xxv. 327.