Peremptory were not then aware of remarks alleged to have been made by the juror which would tend to shew a bias against the prisoner. The King v. Carlin (No. 1), 6 Can. Cr. Cas. 365 (Que.). The practice before the Code was to select as triers two indifferent persons "not returned of the jury." The Code merely says "two persons present, whom the court may appoint for that purpose" (sec. 931, sub-sec. 8). Triers cannot be challenged (1 Chitty Cr. Law 549), but it still remains the duty of the court to appoint only parties who are indifferent between the prosecution and the accused, and as it is possible that any juror on the panel may be next called and subjected to trial of a challenge for favour, a person on the jury panel should in no case be appointed a "trier." As soon as two jurors have been sworn the office of the two triers ceases, and those two jurors try the challenges until another juror has been sworn, and afterwards the duty devolves upon the two jurors last sworn from time to time as the selection and challenges proceed. As each new juror is selected he and the one last selected before him become the triers of the next one called. The trial of the challenge proceeds by witnesses before the triers in open court. The oath to the witnesses other than the juror objected to is as follows: "The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth and nothing but the truth. So help you God." The juror objected to may be examined under oath as to the subject matter of the challenge, the oath to be administered to him being as follows: "You shall true answer make to all such questions as the court shall demand of you. So help you God." The challenging party first calls his witnesses then the opposite party calls his and the challenging party follows with his witnesses in reply. There seems to be also in strict practice a right of counsel for each party to address the triers before calling his witnesses, but it is not customary for an address to be made. After the conclusion of the evidence on the challenge, the judge sums up to the triers, and the triers announce their decision, which is final. Roscoe Cr. Ev. 197. According to the ordinary and grammatical interpretation of the words "if no jurors have then been sworn" it appears that until two jurors have been sworn the triers appointed by the court continue to act, and as it is not directed that they should be joined with the first juror sworn they can and should act alone. R. v. Mathurin (1903), 8 Can. Cr. Cas. 1 (Que.). In the Quebec Code of civil procedure brought into force on September 1st, 1897, this rule has also been adopted for trial by jury in civil matters. C.C.P. Art. 457. 932. Every one indicted for treason or for any offence challenges by punishable with death is entitled to challenge twenty jurors accused. Twelve in certain cases. peremptorily. 2. Every one indicted for any offence other than treason, or an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily. 3. Every one indicted for any other offence is entitled to Four in challenge four jurors peremptorily. 55-56 V., c. 29, s. 668. Peremptory challenges.]-These are made within the limited number here specified without assigning any reason. A peremptory challenge of a juror when once taken must be counted against the party making it, and cannot be withdrawn when the panel is being called over a second time. R. v. Lalonde (1898), 2 Can. Cr. Cas. 188. Where several persons are jointly indicted and tried, the Crown is restricted to the number of peremptory challenges allowed on the trial of one person. Ibid. Where a juryman is taken ill during the trial so that the first jury is discharged, and the same eleven with another returned a second time instanter, the prisoner has a right to challenge any of them as if they had never been previously inserted in the panel. R. v. Edwards, 4 Taunt. 309; 1 Chitty Cr. Law 545. On an indictment containing two counts one for unlawful wounding and the other for assault, the prisoner is only entitled under sec. 932 to twelve peremptory challenges, being the largest number allowed him on any one count of the indictment. R. v. Turpin (1904), 8 Can. Cr. Cas. 59 (N.S.). Although the charges are cumulative as contained in the various counts, the trial, in the absence of an order for separate trial, is a single one, and by sec. 965 the former practice in regard to juries remains in effect except where expressly altered by or inconsistent with the Criminal Code. The number of peremptory challenges still depends on the quality of the most serious of the charges laid in the indictment and not upon the number of offences which are included therein. Ibid. If a prisoner whose challenge of a juror for favour has been disallowed, chooses then to challenge the juror peremptorily, he waives the benefit of any exception to the disallowance of his challenge for favour. Whelan v. The Queen, 28 U.C.Q.B., at p. 55. other cases. 933. The Crown shall have power to challenge four jurors By Crown. peremptorily, and may direct any number of jurors not peremptorily challenged by the accused to stand by until all the Standing jurors have been called who are available for the purpose of aside. trying that indictment. 2. The accused may be called upon to declare whether he Accused challenges any jurors peremptorily or otherwise, before the challenges prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily. 55-56 V., c. 29, s. 668. first if required. stand aside 934. The right of the Crown to cause any juror to stand No right in aside until the panel has been gone through shall not be exerlibel to cised on the trial of any indictment or information by a private by the prosecutor for the publication of a defamatory libel. 55-56 V., Crown. c. 29, s. 669. Standing jurors aside in libel cases.]-The words of this section include ali cases of defamatory libels upon individuals as distinguished from sedi Challenges for cause. No other ground. Challenge in writing. Form. Denial. Peremptory tious or blasphemous libels; and in all cases of indictment for defamatory libels within the statute, the right of the Crown which previously existed to cause jurors to stand aside is taken away. R. v. Patteson (1875), 36 U.C.Q.B. 129. Compare Code sec. 1045 as to costs in libel cases. The latter section also contains the phrase "indictment or information by a private prosecu tor for the publication of a defamatory libel." The words referring to the indictment and prosecutor being identical in the two sections they ought to have the same application. R. v. Patteson (1875), 36 U.C.Q.B. 129, 155. The "private prosecutor," as the term is here used, means the person who puts the criminal law in motion; and if there is a criminal proceeding to which the term private prosecutor is more applicable than another, it is in the case of a defamatory libel-a prosecution, as said by Lord Campbell, uniformly instituted by the party injured. Per Morrison, J., in R. v. Patteson (1875), 36 U.C.Q.B. 129, at p. 141. The fact that the Attorney-General or his representative conducts the prosecution in respect of a private defamatory libel does not make it a public proceeding or withdraw it from the operation of this section. R. v. Patteson (1875), 36 U.C.Q.B. 129, 143; R. v. Marsden (1829), 1 M. & M. 439; R. v. Bell, 1 M. & M. 440. 935. Every prosecutor and every accused person is entitled to any number of challenges on the ground, (a) that any juror's name does not appear in the panel: Provided that no misnomer or misdescription shall be a ground of challenge if it appears to the court that the description given in the panel sufficiently designates the person referred to; or, (b) that any juror is not indifferent between the King and the accused; or, (c) that any juror has been convicted of any offence for which he was sentenced to death or to any term of imprisonment with hard labour or exceeding twelve months; or, (d) that any juror is an alien. 2. No other ground of challenge for cause than those mentioned in this section shall be allowed. 55-56 V., c. 29, s. 668. 936. If a challenge on any of the grounds aforesaid is made, the court may, in its discretion, require the party challenging to put his challenge in writing. 2. The challenge may be in form 70, or to the like effect. 3. The other party may deny that the ground of challenge is true. 55-56 V., c. 29, s. 668. 937. Whenever a person accused of an offence for which he challenge in would be entitled to twenty or twelve peremptory challenges as hereinbefore provided, elects to be tried by a jury composed one-half of persons skilled in the language of the defence, under case of mixed sections nine hundred and twenty-three or nine hundred and jury. twenty-four, the number of peremptory challenges to which he is entitled shall be divided, so that he shall only have the right to challenge one-half of such number from among the English speaking jurors, and one-half from among the French speaking jurors. 55-56 V., c. 29, s. 670. See secs. 923 and 924. 938. If several accused persons are jointly indicted and it Accused perBons joining is proposed to try them together, they or any of them may or severing either join in their challenges, in which case the persons who so in their join shall have only as many challenges as a single person would challenges. be entitled to, or each may make his challenges in the same manner as if he were intended to be tried alone. 55-56 V., c. 29, s. 671. Peremptory challenges on joint indictment.]—Under these provisions each defendant has a right to the full number of his peremptory challenges; but a corresponding privilege is not given to the Crown, and therefore the Crown is restricted, in the case of the trial of several defendants jointly, to the number of peremptory challenges allowed to it in the case of the indictment of a single person. But if the joint defendants refuse to join in their challenges, the Crown has the right to try them separately, and then the Crown has its four peremptory challenges at the trial of each defendant. R. v. Lalonde (1898), 2 Can. Cr. Cas. 188 (Que.). 939. Whenever after the proceedings herein before provided Panel exfor the panel has been exhausted, and a complete jury cannot be hausted, further jurors had by reason thereof, then, upon request made on behalf of the summoned. Crown, the court may order the sheriff or other proper officer forthwith to summon such number of persons, whether qualified jurors or not, as the court deems necessary and directs in order to make a full jury; and such jurors may, if necessary, be summoned by word of mouth. 2. The names of the persons so summoned shall be added to the general panel, for the purposes of the trial, and the same proceedings shall be taken as to calling and challenging such persons and as to directing them to stand by as are hereinbefore provided for with respect to the persons named in the original panel. 55-56 V., c. 29, s. 672. Arraignment and Trial. Names added to the panel. 940. No one shall be tried upon any coroner's inquisition. Coroner's 55-56 V., c. 29, s. 642. inquisition. 941. If any person against whom any indictment is found is at the time confined for some other cause in the prison belonging to the jurisdiction of the court by which he is to be tried, the court may by order in writing, without a writ of habeas corpus, direct the warden or gaoler of the prison or sheriff or other person having the custody of the prisoner to bring up the body of such person as often as may be required for the purposes of the trial, and such warden, gaoler, sheriff or other person shall obey such order. 55-56 V., c. 29, s. 652. It is not necessary that the prisoner should be present in court when the grand jury is sworn. R. v. Mathurin (1903), 8 Can. Cr. Cas. 1. 942. Every person tried for any indictable offence 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. 55-56 V., c. 29, s. 659. Full answer and defence.]—The object of the Crown being not to find the prisoner guilty, but to do justice, it is the duty of the prosecution to bring out the whole of the facts both in the prisoner's favour and against him. Every witness on the back of the indictment need not be called. R. v. Thompson (1876), 13 Cox 181. That is in the discretion of the prosecuting counsel, but he should have all these witnesses in attendance in case the prisoner should desire to call them. R. v. Woodhead (1847), 2 C. & K. 520; R. v. Cassidy (1858), 1 F. & F. 79. In R. v. Simmonds (1823), 1 C. & P. 84, it was laid down that the judge would himself sometimes call the omitted witnesses. In 1830, in R. v. Beezley, 4 C. & P. 220, Mr. Justice Littledale held that all witnesses named on the back of the indictment ought to be called by the prosecution, not necessarily to give evidence in chief, but to afford the defence an opportunity of cross-examination. This ruling went further than R. v. Simmonds, which left the matter in the judge's discretion. R. v. Bodle (1833), 6 C. & P. 186, followed the ruling of R. v. Simmonds. In R. v. Edwards (1848), 3 Cox C.C. 82, Mr. Justice Erle said that, though the judge had power to interfere with counsel's discretion as to calling the witnesses on the back of the indictment, that power would only be exercised in extreme cases. In 1838, in R. v. Holden, 8 C. & P. 609, on a trial for murder, it was laid down that at a murder trial, every person present at the transaction giving rise to the charge ought to be called by the prosecution, even though they were brought to the assizes by the other side and were not on the back of the indictment, as even if they gave different accounts the jury ought to hear their evidence and draw their own conclusions. Lord Abinger, in a murder case, R. v. Orchard (1838), 8 C. & P. 558, note, commented in his summing up on the prosecution not calling two persons who were in the house at the time of the alleged murder, though they were near relatives of the accused, and would naturally be prejudiced in their favour. These decisions seem to shew that in murder cases those persons who were present at the occurrence giving rise to the charge, or in such immediate proximity as to make it likely that they could give relevant evidence, |