other for a conspiracy to poison, Maudsley's Case, Lew. C. C. 85. But in one case, where, in one indictment, the party was charged with cutting with intent to murder, and in another indictment, the same act was laid as a common assault; Mr. Baron Vaughan put the prosecutor to his election which he would go upon, and directed an acquittal upon the other, R. v. Smith, 3 C. & P. 412.

It may also happen, that although several counts have been legally joined in the same indictment, yet, because an atten

NOTE.

indictment, when the first has failed upon the trial, it has been usual to have the two bills found at once, and sometimes to try the two charges together. I consider it wrong to send up the two bills together: but if it should be done, it ought always to be accompanied by a direction to the grand jury to choose between them, and not to find two bills inconsistent with each other; by which the grand jury would at the same moment say that the offence was a felony, and was only an assault, which would imply it was not a felony. In this case, that has been done, and it remains to consider what is now the proper course. It would be in many ways dangerous to justice, in any case, to let two such charges be tried together, as it would afford the opportunity of a compromising verdict, and might press upon the prisoner and embarrass his defence, and would also tend to perplex and mislead the jury. I have therefore no doubt about complying with so much of the prisoner's application as requires me to put the counsel for the crown to their election between the two indictments; but I am not disposed to go further, and quash, or direct an acquittal upon, the other. As to quashing one;-Suppose there were but the one indictment for the felony, and that the prisoner were acquitted upon it, from defective evidence; I do not think it can be doubted that he might be immediately indicted for the misdemeanor: and there being now two indictments on the crown book makes no difference, if on one only he is brought to trial. But as to directing an acquittal ;-Suppose that I should comply with this application, the crown electing to proceed with the felony; if the prisoner should be acquitted of that, he could not be effectually prosecuted for the misdemeanor, as the record of his acquittal under my direction would make that impossible; and justice would fail. In coming to this opinion, I feel a difficulty from the alleged opposite opinion by Mr. Baron VAUGHAN; but, without fuller information as to the circumstances of the case before him, than the short note referred to affords, I cannot take a course which appears to me objectionable upon principle.

The prisoner was put on trial by the crown counsel for the felony. The second witness was objected to on the ground of his having remained in court, contrary to a consent entered into; whereupon the crown consented to the prisoner's acquittal, after which, he was tried for the misdemeanor, and convicted.

So, in Rex v Killeen, Mullingar Lent Ass. 1832, the prisoner was indicted for burglary and stealing in a dwelling house; and also for receiving. The prosecutor having elected to proceed upon the former, an application was -made to SMITH B. to quash the latter indictment, but he declined so to do.

NOTE.

Adjournment.

tion to all the charges might distract or prejudice the defendant, the court will quash some of the counts, if he has not pleaded; or, if it be not discovered until after that, will put the prosecutor to his election as to which he will go on, and direct an acquittal as to the others, Young v. Rex, 3 T. R. 106. But these are matters of prudence and discretion, and if omitted, will not affect the validity of the indictment, or the legality of the conviction, R. v. Galloway, Moo. C. C. 234. Where the same indictment contains counts for larceny and for receiving, it is reasonable to put the prosecutor to his election, Id. ibid, R. v. Flower, 3 C. & P. 413. And the persons who draw indictments ought not to join such, R. v. Madden, Moo. C. C. 277, Lew. C. C. 83. But where the indictment was for a larceny of several articles which most probably had been taken at different times, the prosecutor ought not to be put to his election as to what articles he would proceed, R. v. Dunn, Carr. Supp. 82. And in an indictment for an indecent exposure, he may give in evidence several instances, Rowbattel's Case, Lew. C. C. 83. So, in an indictment, one count was for shooting with intent to kill A., and in another, to kill B., yet it was held that the prosecutor need not be put to his election, Butler's Case, Lew. C. C. 86. On an indictment against several persons, the counsel for the prosecution has a right, before opening his case, to the acquittal of any defendant he intends to call as a witness, R. v. Rowland, R. & M. 401. If a prosecutor close his case, and then the defendant's counsel point out a defect in it, the court is at liberty to put what questions it thinks fit to answer the objections, R. v. Remnant, Russ. & Ry. 136.

If it should be impossible for the trial to be concluded in one day, the court may adjourn from day to day, until the whole of the investigation has been completed. This, although sometimes done with the consent of the prisoners, and which consent it is always desirable to obtain, may nevertheless be effected by the court of its own authority, and that, in a case of murder, or even high treason itself; for necessity justifies what it compels, R. v. Stone, 6 T. R. 530; R. v. Clay. 7 C. & P. 276; 4 Bl. Com. 360, Fost. 23; R. v. Hanly(a). When an adjourn

(a) R. v. Hanly and others, Trim Lent Ass. 1830. Rape. The case for the prosecution not having concluded at the close of the day, BUSHE C. J. directed that the proceedings should be adjourned until next morning. The consent not only of the counsel on both sides, but also of each of the pri. soners was required; and the jury were kept in the grand jury room, with suitable accommodation. This was stated to have been the first case of an adjournment of a criminal trial in Ireland. A similar course was pursued by the same learned judge in the case of R. v. Judge, Maryborough Sum. Ass. 1835, which was a prosecution for murder.

ment is resolved on, an entry of it should be made, in which it may be well to recite the necessity which led toit, R. v. Stone; and all this it seems most proper to do in the present tense, 2 Hawk. c. 5, s. 15. The jury then retire to a tavern or other convenient place for entertainment, where they are kept together by one or more bailiffs, who have been previously sworn, "well and truly to keep the jury, and neither to speak to them themselves, nor suffer any other person to speak to them, touching any matter relative to this trial," R. v. Stone. If however, the indictment be for a misdemeanor, the judge may in his discretion permit the jury to go to their own homes, R. v. Kinnear, 2 B. & A. 462; R. v. Pinney, 7 C. & P. 277 n.

NOTE.

CHAPTER XIII.

OF THE VERDICT AND JUDGMENT.

Sentence of

convicted felons by

other judges

than those who tried them.

10 Car. 1, Sess. 2, c. 14(a), s. 5. That in all cases where any death may be person or persons heretofore have been, or hereafter shall be passed upon found guilty of any manner of treason, murder, manslaughter, rape, or other felony whatsoever, for the which judgement of death should or may ensue, and shall be reprived to prison, without judgement at that time given against him, her, or them so found guilty, that all and every person or persons that at at any time hereafter, shall by the king's commission be assigned justice or justices, to deliver the goale where any such person or persons found guilty shall remaine, shall have full power and authority to give judgement of death against such person or persons so found guilty and reprived, as the same justice or justices (before whom such person or persons was or were found guiltie) might have done, if their commission of goale delivery had remained and continued in full force and strength.

6. That in all cases, where any person or persons heretofore have been, or hereafter shall be adjudged and condemned of any manner of treason, or felony whatsoever, and shall be reprived, or the execution respited for any cause whatsoever, that every person or persons, which at any time hereafter shall by the king's commission be assigned justice or justices, to deliver the goale, where any such person or persons, adjudged and condemned as aforesaid, shall remaine not executed, shall have full power and authority to award execution upon every such judgement, against every such person or persons adjudged and condemned as aforesaid, in as large and ample manner and form, to all intents, constructions, and purposes, as the same justice or justices, by whom such judgement was given, might have done, (if no cause had to him or them appeared, for the stay, respiting, or deferring of the execution,) and as if his or their commission of goale delivery had remained and continued in full force and strength. And over that, no manner of processe or suite made, sued, or had, before any justice of assize, goale delivery, oyer and

(a) Entitled, "An act for the continuance of actions after the death of any

c. 14.

of a new

terminer, justices of peace, or other of the king's commissioners, 10 C. 1, S. 2, shall in any wise be discontinued by the making and publishing of a new commission, or association, or by altering of the names of the justices of assize, goale delivery, oyer and ter- the issuing miner, justices of peace, or other the king's commissioners; commission. but that the new justices of assizes, goale delivery, and of the peace, and other commissioners may proceed in every behalfe, as if the old commissions and justices, and commissioners had still remained and continued not altered.

and subor.

56 Geo. 3, c. 138(a), s. 1. Whereas the punishment of the pillory, has in many cases been found inexpedient, and not fully to answer the purpose for which it was intended; be it therefore Judgment of &c., that from and after the passing of this act, judgment shall shall only be the pillory not be given and awarded against any person or persons con- for perjury victed of any offence, that such person or persons do stand in or nation of upon the pillory, except for the offences herein-after mention- perjury. ed; any law, statute or usage to the contrary notwithstanding. Provided, that all laws now in force, whereby any person is subject to punishment for taking any false oath, or for committing any manner of wilful and corruptper jury, or for the procuring or suborning any other person so to do, or for wilfully, falsely, and corruptly affirming or declaring, or procuring or suborning any other person so to affirm and declare, in any matter or thing, which, if the same had been deposed in the usual form, would have amounted to wilful and corrupt perjury, shall continue and be in full force and effect; and that all persons guilty of any of the said several offences shall incur and suffer the same punishment, penalties, and forfeitures, as such persons were subject to by the laws and statutes of this realm, or any of them, before the passing of this act, and as if this act had not been made.

other of.

2. That in all cases where the punishment of the pillory has Instead of hitherto formed the whole or a part of the judgment to be court may the pillory, pronounced, it shall and may be lawful for the court before fine or im whom such offence is tried, to pass such sentence of fine or prison for imprisonment, or of both, in lieu of the sentence of pillory, as fences. to the said court shall seem most proper. Provided that nothing herein contained shall extend or be construed to extend in any manner to change, alter, or affect any punishment whatsoever, which may now be by law inflicted, in respect of any offence, except only the punishment of pillory, in manner as herein above is enacted.

1 Geo. 4, c. 57(b), s. 2. That from and after the passing No female of this act, judgment or sentence shall in no case whatever be

(a) Entitled, " An act to abolish the punishment of the pillory, except in certain cases.'

(b) Entitled, " An act to repeal an act passed in the fifty-seventh year of the reign of his late majesty king George the Third," intituled, " An act to abo

offender shall be whipped.