vided; at most, the party may be bound to his good behaviour by the court, 2 Hawk. c. 47, s. 11. But if the defendant be improperly convicted, the course is for the judge to respite execution, in order that a pardon may be applied for, R. v. Mawbey, 6 T. R. 625, arg.; R. v. Oxford, 13 East 411, 416, n. NOTE. jury. The evidence having been closed on both sides, and the jury having been charged by the judge at the assizes, or of the retirby the assistant barrister or other chairman of the sessions, ing of the the issue paper is handed up, and the jury proceed to consider their verdict. If the evidence be long, or the jury not unanimous at the moment, they retire to their jury room, to which no one is admitted but themselves; and a bailiff is then sworn to guard the door, Burn, J. Jurors, X. After the jury have retired, they may desire to ask some question of the court or of one of the witnesses, and it shall be allowed them, provided it be done in open court, 2 Hale, 296. While the jury are in deliberation, they shall be kept without meat, drink, or fire, and shall receive no communication from without, save by permission of the court. If a juror misconduct himself, by leaving the juryroom before the verdict has been agreed on, or if he have tossed up, or drawn lots for the verdict, or received refreshments without leave of the court, it is a high misdemeanor, and he may be severely fined, Hale v. Cove, 1 Str. 642; Duke of Richmond v. Wise, 1 Ventr. 124; Foy v. Harder, 3 Keb. 805, 2 Lev. 205; R. v. Lord Fitzwater, 2 Lev. 139. The jury may give a special verdict in any criminal case, 2 Hale, 301. But it is said, that it is dishonourable for the court to suffer a special verdict in a plain case, Kel. 29. In a capital case, a juror cannot be withdrawn, though the parties consent to it; but in all other criminal cases a juror may be withdrawn, if both parties consent, but not otherwise, R. v. Perkins, Holt. 403, Carth. 465. In Kinloch's Case, Fost. 27, it has since been held that, even in a capital case, the jury may be discharged before verdict, with the prisoner's consent. It would appear from the necessity of the case, that whenever the jury cannot agree, and the parties do not consent, the judge may, of his own authority, discharge them after a reasonable time. The tradidition, that in such a case, they are to be kept together until the judge leaves the place, and then drawn after him to the bounds of the county and there discharged, seems to rest on no better foundation than a dictum in R. v. Ledgingham, 1 Ventr. 97, where it is said, "in cases of life and member, if the jury cannot agree before the judges depart, they are to be carried in carts after them, so they may give their verdict out of the county;" and see 2 Hale, 297, 3 C. & P. 429, n. If a juror be taken ill during the trial, the remaining eleven may be discharged of the prisoner, and a new jury sworn, and the whole a juror. proceedings be gone through, de novo. The new jury may consist of the eleven former jurors with one added; but all Illness of NOTE. Of deliberating on the verdict. must be re-sworn, and the prisoner must be called upon to challenge as at first, Scalbert's Case, 2 Lea. C. C. 706; R. v. Edwards, Russ & Ry. C. C. R. 224, 2 Lea. C. C. 621; R. v. Stevenson, 2 Lea. C. C. 546. Should the jury, upon carefully scanning the evidence, entertain a doubt of the prisoner's guilt, he ought to have the benefit of that doubt, upon the well-established and humane principle of the law, that it is better that ten guilty should escape, than one innocent person suffer. In applying this principle, the eloquent address of Lord Chief Justice Bushe, delivered at a special commission in Sligo, in December, 1806, while then filling the office of solicitor general, ought to be carefully kept in mind; "If you entertain a doubt," says he, "of the prisoner's guilt you will acquit him. But you will remember that such a doubt as warrants an acquittal, must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as, upon a calm view of the whole evidence, a rational understanding will suggest to an honest heart, the conscientious hesitation of a mind, not influenced by party, preoccupied by prejudice, or subdued by fear." When the jury have agreed to their verdict, they return into court, and the foreman hands to the clerk of the crown the issue paper, upon which he has previously entered the verdict. From this paper the clerk of the crown calls out the names of the jurors(a), and all having answered, A juror's name rightly entered on the panel, and he rightly called to be sworn; an error in making out the issue paper, and in calling the juror to return the verdict, held immaterial. A person (a) Rex v. Grogan, Philipstown Lent Ass. 1830. Murder. named William Chamberlain was called by that name from the panel, and sworn upon the jury. When the verdict was brought in, the names of the jurors were called over; but a mistake having occurred in the transcribing those names in the issue paper, William Chamberlain was called by the name of Edward. He did not answer; nor was there any notice taken of the circumstance until after the verdict of conviction had been delivered. The mistake was then discovered. BUSHE, C. J.,-having ascertained by inquiry in court, that the juror's name was properly entered on the panel, that he had been sworn by his proper name, and that there was no other person of the name of Chamberlain on the panel-said that the case would have been very different, had the juror been called and sworn by a wrong name; as, in that case, the prisoner might have been prejudiced in his right of challenge, but in this case he had sustained no such prejudice. He added, how. ever, that he would confer with Lord PLUNKETT, C. J., (his brother on circuit,) and that if he saw reason to think that there was any difficulty in the case, he would reserve it for the twelve judges. After conference, both judges were of opinion that there was nothing in the objection. The juror's name was correctly entered on the panel. He was called by that name, and sworn by it. The panel is the document from which the jurors names are to be taken, in making up the record. The issue paper is a document used only for the convenience of the clerk of the crown. It is not a necessary form, nor is it any part of the proceedings which compose the record, or from which he asks, "gentlemen have you agreed to your verdict?" to which the foreman replies in the affirmative. The clerk of the crown then says, "how say you, in No. [31], are A. B., C. D., and E. F., or either and which of them, guilty of the [burglary] given you in charge ?" The foreman answers according to the fact, which is immediately noted by the clerk of the crown in his book. In all cases of treason and felony, the verdict must be delivered in open court, 2 Hale, 300. În cases of misdemeanor, it may be received by any of the judges, if the court have risen; after which the jury, remaining still in the custody of the bailiff, may eat and drink at their own expense. On the morrow, in open court, they are either to affirm or vary the verdict so given, which variation may be made at any time before it is actually recorded, Co. Litt. 227,b. and even though it be recorded, yet, if it appear promptly that it is not according to the intention of the jury, it may be vacated and set right, R. v. Parken, Moo. C. C. R. 45. In misdemeanor cases also, the verdict may be delivered, by consent, at the residence of the judge, even though it be out of the limits of the county, R. v. Woodfall, 5 Burr. 2667. The King, at the prosecution of A.B. and C.D. NOTE. FORMS. Court of oyer and terminer, and general gaol delivery, in and for the county Challenge to of S. (1) the array, the sheriff being And hereupon the said C. D. challenges the array of the a kin to the said panel, because he saith that the said panel was arrayed prosecutor. by one J. Z. knt., now and at the time of making the array aforesaid, sheriff of the said county of S., which said sheriff is a kinsman of the said A. B. the prosecutor in this cause, to wit, the son of G. Z., son of J. Z., son of W. Lord Z., father of W. Lord R., father of E., mother of the aforesaid A. B., and this he is ready to verify. Wherefore he prayeth judgment, and that the said panel may be quashed. Which said panel, by R. F. and G. H. triers, to this chosen and sworn, is found true. And therefore let the panel aforesaid be quashed and removed, &c.(a) (2) Commencement as in last form to *] Because he says Challenge that the panel was arrayed by one J. S., esquire, late sheriff of the county of S., at the nomination of the said A. B., and in his favour, [conclude as in last form from †](b). the record is made up. The jury deliver their verdict ore tenus, and not through the issue paper, though it be written therein; and it is from the oral communication, that the clerk of the crown enters it upon the crown book. (a) See Tr. per Pais. 160; Cr. C. C. 122. (b) See Cr. C. C. 123, Burn, J. Jurors; and also R. v. Adams, Maryborough Sp. Com, 1832. because the panel was returned at the nomination of a party. FORMS. (3) Trier's oath. (4) Trier's oath. (5) You shall well and truly try whether A. F. [the juryman challenged], stand indifferent between the parties to this issue. So help you God. You shall well and truly try the issue joined upon this challenge. So help you God(a). You shall well and truly try, and true deliverance make, beJuror's oath. tween our sovereign lord the king, and the several prisoners [and traversers] whom you shall have in charge, and true verdicts give, according to the evidence. So help you God. oath. (6) You shall keep this jury from all manner of easement, Jury bailiff's meat, drink, or fire; candlelight only excepted. You shall not suffer any one to speak to them, nor shall you speak to them yourself, without leave of the court. So help you God. (a) The oath given in form (3), is that laid down in Anon. 1 Salk. 152. But it is manifestly only suited to one particular species of challenge, viz. a chal lenge to the poll for favour, as the case in question was. The present form therefore, is submitted, as applicable to all cases. CHAPTER XI. OF EVIDENCE. SECTION 1. Documentary Evidence. 12 Eliz. c. 2(a), s. 1. Forasmuch as, by the careless and negligent keeping of the rolles, recordes, and ancient munimentes, that did remaine in the thresorie of this realm, and in offices appointed for the safe custodie of them, the same rolles, recordes, and munimentes, are some torn and rent, some imbeaseled and consealed, and some so impaired with moysture of stone walles, as they cannot bee read, to the great perill of disherison of the subjects; and although number have of old and ancient time caused the exemplification to bee made forth of them for their better assurance, yet the same do not so much benefite them, as they ment they should, as being of no such sufficiencie in the law as the originall is; bee it for remedie herein, enacted &c., that from henceforth all and all mannert exemplifications to be made of any recorde, Exemplifijudgment, fine, processe, inrolment, office, letters, patentes, cations of reor of any act, statute, provision, or ordinance, or of other cords under the great seal matter or thing whatsoever of recorde, and being sealed under and seals of the queen's majesties, her heires and successors, great seal of the courts, this realm, and under the seals of her majestie's courts, her the chancellor heires and successores, of high bench or chiefe place, common and chief place, and exchequer in this realm, and subscribed by the lord judges, of chancellour, both the chiefe justices, and chiefe baron for the the original. time being, shall be of the same force, effect, strength, and validitie in law, in all things, and to all intents, constructions, † Sic. and purposes, and shall have the same allowance, estimation, credit, and faith, in all courts and places, and before all judges, officers, and ministers of justice, as the originall or originalls so exemplified, of what nature or kind soever the same bee, should or ought to have, if the same were produced, exhibited, pleaded, alleged, and shewed forth. subscribed by same effect as (a) Entitled "An act that exemplifications shall be of the same effect and strength, as the record or matter exemplified should be.” |