peace, to have been active in or towards the apprehension of any party charged with receiving stolen property knowing the same to have been stolen, such court shall have power to order compensation to such persons, in the same manner as the other courts hereinbefore mentioned: provided always, that nothing herein contained shall prevent any of the said courts from also allowing to any such persons, if prosecutors or witnesses, such costs, expenses, and compensation, as courts are by this act empowered to allow to prosecutors and witnesses respectively." By the 14 & 15 Vict. c. 55, the power of the court of sessions in this particular is extended to all the offences mentioned in 7 Geo. 4, c. 64, s. 28," which such sessions may have power to try," and "provided that such compensation to any one person shall not exceed the sum of five pounds, and that every order for payment to any person of such compensation be made out and delivered by the proper officer of the court unto such person without fee or payment for the same.'

It was held by Hullock, B., that the case of sacrilege was not included in the above section, not coming within the words burglary or housebreaking. R. v. Robinson, 2 Lewin, C. C. 129. And on the authority of this case, Bolland, B., refused a similar application, though both he and Parke, B., would otherwise have been disposed to put a different construction upon the statute. Id. But where a woman was indicted for an attempt to murder her child by suffocating it, Patteson, J., allowed the constable his extra expenses in apprehending the prisoner, being of opinion that the case was within the spirit and intention of the foregoing clause, though not within the words. R. v. Durkin, 2 Lew. C. C. 163. It has been held, however, by Maule, J., that a stealing from the person is not within the words "robbery on the person. R. v. Thompson, York Spr. Ass. 1845, MS. Under the word "exertions" in the above clause, Parke, B., ordered a prosecutor a gratuity of five pounds for his courage in apprehending the prisoner. R. v. Womersly, 2 Lew. C. C. 126.

By the stat. 7 Geo. 4, c. 64, s. 29, "Every order for payment to

*any person, in respect to such apprehension as aforesaid, shall *247] be forthwith made out and delivered by the proper officer of the court unto such person, upon being paid for the same the sum of five shillings and no more; and the sheriff of the county for the time being is hereby authorized and required, upon sight of such order, forthwith to pay to such person, or to any one duly authorized on his or her behalf, the money in such order mentioned; and every such sheriff may immediately apply for repayment of the same to the commissioners of his majesty's treasury, who, upon inspecting such order, together with the acquittance of the person entitled to receive the money thereon, shall forthwith order repayment to the sheriff of the money so by him paid, without any fee or reward whatsoever."

Allowance to the widows and families of persons killed in endeavoring to apprehend offenders. By the 7 Geo. 4, c. 64, s. 30,

"If any man shall happen to be killed in endeavoring to apprehend any person who shall be charged with any of the offences hereinbefore last mentioned [in sect. 28], it shall be lawful for the court, before whom such person shall be tried, to order the sheriff of the county to pay to the widow of the man so killed, in case he shall have been married, or to his child or children, in case his wife shall be dead, or to his father or mother in case he shall have left neither wife nor child, such sum of money as to the court in its discretion shall seem meet; and the order for payment of such money shall be made out and delivered by the proper officer of the court unto the party entitled to receive the same, or unto some one on his or her behalf, to be named in such order by the direction of the court, and every such order shall be paid by and repaid to the sheriff in the manner hereinbefore mentioned" [in the 29th section].

79 E. C. L., where a conviction for felony was removed into the Court of Queen's Bench, a new trial was moved for on the ground of the improper reception of depositions in evidence, and was granted; but that case has not been followed, and cannot be considered to be the law. R. v. Bertrand, L. R. 1 P. Č. 520; 36 L. J., P. C. 51; R. v. Duncan, 7 Q. B. D. 198; 50 L. J., M. C. 95, post, p. 236. See R. v. Murphy, L. R., 2 P. C. 535; 38 L. J., P. C. 53; and see Winsor v. R., L. R. 1 Q. B. 390; 35 L. J., M. C. 161.1

Ř.

In case of a conviction for misdemeanor a new trial may be granted at the instance of the defendant, where the justice of the case requires it; R. v. Mawbey, 6 T. R. 638; though inferior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (See the cases collected on this point in note (b) to R. v. Inhab. of Oxford, 13 East, 416.) A new trial will be granted on the ground of surprise. R. v. Whitehouse, Dears. C. C. R. 1.2 It must be moved within the first four days of term. R. v. Newman, 1 El. & Bl. 268,

1 In the United States the uniform and unquestioned practice down to a comparatively late period has been to extend to criminal cases, so far as the revision of verdicts is concerned, the same principles which have been established in civil actions; and though, except in cases of fraud, no instance exists where an acquittal has been disturbed, new trials in cases of conviction have frequently been granted. Once in New York in 1832 and once by Judge Story in 1833 has the English doctrine, that after a conviction it was out of the power of a conimon law court to interpose, except by the recommendation of pardon, been maintained. But plausibly as the position was sustained by Judge Story, it was afterwards abandoned in the court in which it was uttered, and is now so universally rejected that its extended discussion is no longer necessary. It is sufficient to say that neither in Federal nor State courts are there now any doubts expressed as to the right of the proper court to grant a new trial in any case in which it considers the verdict to be unjust. Wharton's Crim. Pleading and Practice, 8th ed., & 791, and cases cited. The right given by the New York code to the appellate court to grant a new trial can be exercised by the Supreme Court only. People v. Donovan, 4 N. Y. Crim. Rep. 86.

State v.

2 Where the evidence is conflicting the verdict will not be lightly disturbed. United States v. Daubner, 17 Fed. Rep. 793; Jones v. State, 12 Tex. App. 156; Land . People, 104 Ill. 248; Wagner v. State, 107 Ind. 71. A motion for arrest of judgment is proper where a defect appears upon the face of the record; but for a variance between the indictment and the proof, a motion for a new trial is the proper course. Hamilton, 17 S. C. 462. New evidence simply tending to impeach witnesses is no ground for a new trial. Partee v. State, 67 Ga. 570; Ogden v. State, 13 Neb. 436; Wallace v. State, 28 Ark. 531; Brown v. State, 55 Ga. 169; State v. Smith, 35 Kan. 618. Ncr the admission of immaterial evidence, when the verdict is not influenced by such evidence. Tilly v. State, 21 Fla. 242. Nor surprise as to what witness testifies to. Rankin v. Commonwealth, 82 Ky. 424. Nor an omission which works no injury to defendant. People v. Reaves, 4 N. Y. Crim. Rep. 1; State v. Young, 34 La. An. 346. The improper admission of evidence prejudicial to the defendant is ground for a new trial. People v. Dailey, 59 Cal. 600; State v. Mikle, 81 N. C. 552. But the defendant cannot complain of the admission of facts which the defence proved at a later stage of the trial. People v. Crawford, 48 Mich. 498. Nor that a new trial is refused where the witnesses were known, but no application was made to postpone until they might be found. State v. Lamothe, 37 La. An. 43. Where there is total absence of testimony, either direct or circumstantial, to establish the venue laid in the indictment, there must be a reversal. Supra, p. *90; State v. McGinniss, 74 Mo. 245. Upon newly discovered evidence and the necessary affidavits. Runnels r. State, 28 Ark. 121. See also, Wharton's Crim. Pleading and Practice, ? 854. Upon a motion for a new trial the character of the judge's charge may be considered, although not excepted to when delivered. People v. Sweeney, 4 N. Y. Crim. Rep. 275; Maddox v. State, 12 Tex. App. 429. An erroneous instruction is not cured by a subsequent correct one. State v. Dearing, 65 Mo. 530. A judge has a right to express his opinion on

margin thereof shall be taken to be the venue for all the facts stated in the body of such indictment; provided that, in cases where local description is or hereafter shall be required, such local description shall be given in the body of the indictment; and, provided also, that where an indictment for an offence committed in the county of any city or town corporate shall be preferred at the assizes of the adjoining county, such county of the city or town shall be deemed the venue, and may either be stated in the margin of the indictment, with or without the name of the county in which the offender is to be tried, or be stated in the body of the indictment, by way of venue."

By s. 24 of the same act, no indictment for any offence shall be held insufficient for want of a proper or perfect venue. See the

statute in the Appendix. *By a previous section of the same statute, s. 1, supra, [*249 p. 209, power is given to the court in any indictment for felony or misdemeanor to amend a variance "in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in such indictment."

The effect of these provisions appears to be that only two objections are now of much importance with respect to the venue. First, that on the face of the record it appears that the court has no jurisdiction; secondly, that the evidence shows that the court has no jurisdiction. And even the first of these objections may sometimes be got over by an exercise of the above power of amendment.

If it appears upon the face of the record that the court has no jurisdiction a conviction cannot be sustained without amendment, notwithstanding that the court really had jurisdiction to try the offence. R. v. Mitchell, 2 Q. B. 636, 42 E. C. L.

Offences committed on the boundary of counties, or partly in one county and partly in another. By the 7 Geo. 4, c. 64, s. 12 (repealing 59 Geo. 3, c. 96), "where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one county and completed in another, every such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished, in any of the said counties, in the same manner as if it had been actually and wholly committed therein." The Irish statute, 9 Geo. 4, c. 54, contains an exactly similar enact

ment.

It has been held, that the section does not extend to trials in limited` jurisdictions, but only to county trials. R. v. Welsh, 1 Moody, C. C. 175. Nor does it enable the prosecutor to lay the offence in one county and try it in another; but only to lay and try it in either. R. v. Mitchell, 2 Q. B. 636, 42 E. C. L. It applies to offences which are local in their nature, such as burglary, as well as to larcenies and other transitory felonies. R. v. Ruck, Hereford Spr. Ass. 1829; 2 Russ. Cri. 46, 5th ed. Questions frequently arise as to whether any material part of an offence has been committed in a

particular county where the trial is had, and instances will be found post, tits. "Embezzlement," "False Pretences," and "Larceny;" and see Index, "Venue.”

Offences committed in detached parts of counties. By the 2 & 3 Vict. c. 82, s. 1, justices of the peace for any county may act as justices in all things relating to any detached part of any other county, which is surrounded in whole or in part by the county for which such justices act, and all offenders in such detached part may be committed for trial, tried, convicted, and sentenced, and judgment and execution may be had upon them, in like manner as if such detached part were to all intents and purposes part of the county for which such justices

act.

By s. 2, the expenses of prosecuting offenders committed from the detached part of any county are to be repaid by the county to which such detached part belongs, in the manner therein prescribed.

It has been held that the grand jury for the county which wholly surrounds a detached part of another county, may find an indictment for an offence committed in such detached part, and that the prisoner *may be tried by a jury of such surrounding county. The *250] prisoner was indicted in Dorsetshire for larceny in a parish of Somersetshire, entirely detached from it, and surrounded in whole by Dorsetshire. He had been committed by a Dorsetshire magistrate to the gaol of that county. The indictment laid the offence to have been committed in the parish of H., the same being a detached part of the county of Somerset, surrounded in the whole by the county of Dorset ; the venue in the margin was Dorset. The indictment did not state that the prisoner was in Dorsetshire, or that he was committed by a Dorsetshire magistrate. It was objected, first, that this should have appeared on the face of the indictment, and secondly, that the grand jury of Dorsetshire could not find the bill, as there were no words in the statute giving any power to find the bill; and the 60 Geo. 3, c. 4, the 7 Geo. 4, c. 64, s. 12, and the 4 & 5 Will. 4, c. 36, were referred to in order to show that the word "try" in a statute did not include the finding of a bill by the grand jury. Rolfe, B., however, overruled the objection, saying that it would strike the act out of the statute book. R. v. Loader, 1 Russ. Cri. 8, 5th ed.

Offences committed on persons or property in coaches employed on journeys, or in vessels employed in inland navigation. The 7 Geo. 4, c. 64, s. 13, for the more effectual prosecution of offences committed during journeys from place to place, enacts, "that where any felony or misdemeanor shall be committed on any person, or on or in respect of any property in or upon any coach, wagon, cart, or other carriage whatever, employed in any journey, or shall be committed on any person, or on or in respect of any property on board any vessel whatever, employed in any voyage or journey upon any navigable river, canal, or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any county

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