jury, and afterwards declined to call witnesses to prove the facts which he had so opened, is was holden that the counsel for the prosecution was entitled to the general reply. R. v. Bignold, 4 D. & R. 70. But this has since been frequently ruled otherwise at nisi prius.

6. The Summing-up, Verdict, &c.

After the case has been closed upon both sides, the Chairman or Recorder then sums it up to the jury: he first states to them the substance of the charge against the prisoner; he then, if necessary, explains to them the law upon the subject; he next reads the evidence which has been adduced in support of the charge, making occasionally such observations as may be necessary to connect the evidence, to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defence, and the evidence given on the part of the defendant; and he usually concludes by telling the jury that if, upon considering the whole of the evidence, they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt, and acquit him.

It may be necessary to state, that a bill of exceptions will not lie, it is never allowed in a criminal case. Even where the Sessions sit as a court of appeal, a bill of exceptions cannot be tendered. R. v. Preston-upon-the-Hill, Burr. S. C. 77. 2 Str. 1040.

As soon as the summing up is concluded, the clerk of the peace usually says to the jury: "Gentlemen, consider of your verdict." And the jury accordingly consult with each other upon the subject.

If the jury find any difficulty in coming to a conclusion, and wish to retire to the jury-room for the purpose of discussing the matter more freely in private, they may intimate their wish to the clerk of the peace; and the crier of the Court will then swear a constable to attend them, in this form: "You shall swear that you will keep this jury without meat, drink, or fire, (candle light only excepted ;) you shall suffer none to speak to them; neither shall you speak to them yourself, but only to ask them whether they are agreed upon their verdict: So help you God."

By permission of the Court, however, they may have refreshments, &c. Dr. & Stud. 158.

After the jury retire, they may come back for the advice or opinion of the Court upon any point; or they may request the chairman or recorder to read over to them again any particular part of the evidence; or they may ask any additional questions of the witnesses, provided this be done in open Court.

In what cases the Jury may be discharged.] The general rule is, that the jury must be kept together, from the time they are first charged with the prisoner or defendant, until they deliver their verdict. To this however there are some exceptions, from necessity. Where the trial lasts more than one day, although in a case of felony the jury cannot be allowed to disperse, but the Court usually order the Sheriff to provide them with beds, refreshments, &c., see R. v. Hardy, 24 How. St. Tr. 414,572, yet in misdemeanors it is entirely in the discretion of the Court or judge to allow the jury to go to their respective homes or lodgings for the night, or not; and he may allow this, without the consent of parties. R. v. Kinneur, 2 B.& Ald. 462. But the judge, in such a case, usually cautions the jury not to hold any communication or conversation with other persons, upon the subject of the trial; and indeed if it could be proved that any of the jury had been tampered with in the interim, it might have the effect of avoiding the verdict. Vide Id. Where, during a trial for murder, one of the jury was seized with a fit, and was carried out of Court in a state of insensibility; after the Court had waited some time, and it was deposed on oath that he was not in a fit state to return immediately, Lawrence, J. discharged the jury, and ordered another jury (consisting of the remaining eleven jurors, and a twelfth from the jury panel,) to be sworn; and the prisoner was thereupon convicted, and executed. R. v. Scalbert, 2 Leach, 620. The same also occurred upon the trial of one Edwards for maliciously shooting, before Wood, B., in 1812; and the point being reserved for the opinion of the judges, they were unanimously of opinion that the judge had acted rightly. R. v. Edwards, R. & Ry. 224. 3 Camp. 207. 4 Taunt. 309. So, where a defendant, in the case of a misdemeanor, became so ill that he could not remain at the bar, the judge discharged the jury; and afterwards during the same assizes, upon his recovery, another jury were charged with him, and the whole of the proceedings were commenced de novo. R. v. Streek, 2 C. & P. 413. So where, on a trial for manslaughter, it was discovered, after the swearing of the jury, that the surgeon who had examined the body was absent: upon the prisoner requesting that the jury should be discharged, they were accordingly discharged, and the prisoner was tried on the next day by another jury. R. v. Stokes, 6 Car. & P. 151. And where an indictment for a misdemeanor was clearly bad upon the face of it, Abbott, C. J., discharged the jury from giving any verdict upon it. R. v. Deacon, Ry. & M.N.P.C. 27.

Verdict.] If the jury retire, then upon their afterwards returning into Court, the Clerk of the Peace addresses them thus: "Gentlemen of the jury, answer to your names." He then calls over their names, and the jurors respectively answer.

As soon as the jury are ready to deliver their verdict, the Clerk of the Peace addresses them thus: "Gentlemen, have you agreed upon your verdict? Who shall say for you? Your foreman. How say you, do you find the prisoner [or defendant] A. B. guilty of the [felmy] whereof he stands indicted, or not guilty? Do you find the prisoner C. D. guilty of the felony whereof he stands indicted, or not guilty?"

The jury answer guilty," or "not guilty;" or they may say we find him guilty of stealing, but not in the dwelling-house," or the like.

After the verdict is delivered, the Clerk of the Peace, having made a minute of it on the indictment, again addresses the jury thus: "Gentlemen, hearken to your verdict, as the Court hath recorded it: You say that A. B. is [not] guilty of the felony whereof he stands indicted; and that C. D. is [not] guilty of the felony whereof he stands indicted; this is your verdict, and so ye say all."

There are some offences, which cannot be committed by less than a certain number of persons. For instance, a riot cannot be committed by less than three persons, see ante, p. 198, a conspiracy by less than two, see ante, p. 235. And therefore if several be indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it be charged in the indictment, and proved, that they committed the riot together with some other person not tried upon this indictinent. 2 Hawk. c. 47. s. 8. See ante, p. 200. So if upon an indictment for a conspiracy, the jury acquit all the defendants but one, they must acquit that one also, however criminal they may think him, unless it be charged in the indictment and proved that he conspired with some other person not tried upon that indictment. I Hawk. c. 72, s. 8. See ante, p. 235. But in other cases, where the offence may be committed by one person, there, although the indictment charge two defendants with having jointly committed it, the jury may find one guilty, and acquit the other. R. v. Taggart, 1 Car. & P. 201. Where however two were jointly indicted for obstructing a highway, and on the evidence no joint act of obstruction appeared, Littledale, J., as soon as the case for the prosecution was closed, put the prosecutor's counsel to his election, as against which of the defendants he would proceed, and then ordered the other to be acquitted. R. v. Lynn, 1 Cur. & P. 528.

If the indictment really state no indictable offence, it seems that the jury may be directed to acquit the prisoner, even although the case be proved; and the Court will not put him to his motion in arrest of judgment, or writ of error. Where an indictment charged a defendant with not obeying an order of justices, but it appeared on the face of the indictment that the justices had no authority in law to make the order: this being

objected to at the trial, it was answered, that as the objection appeared upon the record, the proper mode of taking advantage of it was by motion in arrest of judgment; Abbott, C. J., however holding the objection to be fatal, directed an acquittal. R. v. Hollis, 2 Stark. R. 536.

Persons acquitted "shall be immediately set at large," without payment of any fee to the sheriff or gaoler, 14 G. 3, c. 20, or any other person. 55 G. 3, c. 50, s. 4, 5.

It has already been observed (ante, p. 48.) that upon the trial of an indictment, a case cannot be reserved for the opinion of the Court of King's Bench.

What Defects are cured by Verdict.] By stat. 7 G. 4, c. 64, s. 21, No judgment after verdict upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed for want of a similiter; nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion; nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors; nor because any person has served upon the jury, who has not been returned as a juror by the sheriff or other officer; and that where the offence charged has been created by any statute, or subjected to a greater degree of punishment by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute."

And by sect. 20, "that the punishment of offenders may be less frequently intercepted in consequence of technical niceties, be it enacted, that no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words " as appears by the record," or of the words "with force and arms," or of the words" against the peace;" nor for the insertion of the words

against the form of the statute," instead of the words, against the form of the statutes," or vice versá; nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to be committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the Court shall appear by the indictment or information to have had jurisdiction over the offence."

7. New Trial; Arrest of Judgment.

New Trial.] A new trial cannot be granted, even by the Court of King's Bench, in a case of felony. R. v. Mawbey, 6 T. R. 638. That Court may indeed grant it, in the case of misdemeanors; Id. See R. v. Simmons, 1 Wils. 329.; but they have always refused to do so, where the defendant has been acquitted; Ř. v. Brice, 2 B. & Ald. 606. R. v. Mann, 4 M. & S. 337. R. v. Cohen, 1 Stark. 516. R. v. Praed, 4 Burr. 2256. R. v. Reynell, 6 East, 315; and this even in the case of an indictment for non-repair of a highway. R. v. Silverton, 1 Wils. 298. R. v. Burbon, 5 M. & S. 392. but see R. v. Wandsworth, 1 B. & Ald. 63. R. v. Sutton, 5 B. & Adolph. 52. But a Court of Quarter Sessions cannot in strictness grant a new trial; at least it is so generally understood. Where two persons were indicted at Sessions for stealing oats, and convicted; but it appearing afterwards that, on the jury retiring, one of the jurors separated himself from the rest, and conversed with a stranger on the subject of the trial, the Sessions quashed the verdict, and awarded a venire de novo to the next Sessions; at which next Sessions the prisoners were again tried, and again convicted: they then brought a writ of error, and objected, first, that the Sessions have no authority to grant a new trial; and secondly, that there had been no new arraignment and plea before the second trial: as to the last point, the Court held that the parties having once pleaded and put themselves upon the country, it was unnecessary for them to do so a second time; and as to the first point, the Court said that this could not be deemed a new trial; the first trial was either good or bad; if good, the second trial was coram non judice, and might be deemed a nullity; if bad, it must be deemed a mistrial and a nullity, and therefore, as the prisoners had put themselves upon the country, they might well be tried at the next Sessions; in either view of the case, the judgment was right. R. v. Fowler & Sexton, 4 B. & Ald. 273. See R. v. Inhabitants of Oxfordshire, ante, p. 38.

Arrest of Judgment.] No defects in an indictment were aided by verdict at common law. We have seen (ante, p. 255.) what are now aided by statute. And for all defects which are not so aided, and for which the defendant might have demurred, he may move in arrest of judgment. At Sessions, the motion may be made at any time before sentence is passed. See R. v. Jackson, ante, p. 28.

As to writ of error, see ante, p. 30,