CHAPTER X.

THE TRIAL.

THE full complement of jurors having been obtained, they are sworn; or, if any of them, either on conscientious grounds or as having no religious belief, object to the oath, they make the statutory declaration, or they may, if they please, take the oath with uplifted hand in the Scottish manner (a). The oath and mode of taking it differ slightly in felonies and in misdemeanours. In felonies, each juror takes the oath separately in the following terms: "I swear by Almighty God that I will well and truly try, and true deliverance make, between our Sovereign lord the King and the prisoner at the bar, whom I shall have in charge, and a true verdict give according to the evidence. In misdemeanours, four take hold of the book at the same time, and four, or sometimes all, are sworn together. The oath is: “I swear by Almighty God that I will well and truly try the issue joined between our Sovereign lord the King and the defendant, and a true verdict give according to the evidence."

After the jury are sworn, in cases of treason or felony, the crier at the assizes makes the following proclamation: "If any one can inform my lords the King's justices, the King's attorney-general, or the King's serjeant, ere this inquest be taken between our Sovereign lord the King, and the prisoners at the bar, of any treason, murder, felony, or misdemeanour, committed or done by them, or any of them, let him come forth, and he shall be heard; for the prisoners stand at the bar upon their deliverance." The Clerk of the Court then having called the prisoner to the bar, says to the

(a) 51 & 52 Vict. c. 46.

jury: "Gentlemen of the jury, the prisoner stands indicted by the name of John Styles, for that he on the (reciting the substance of the indictment). Upon this indictment he has been arraigned, and upon his arraignment he has pleaded that he is not guilty; your charge, therefore, is to enquire whether he be guilty or not guilty, and to hearken to the evidence." In misdemeanours the jury need not be thus charged. The counsel for the prosecution now opens the case to the jury, stating the principal facts which the prosecution intend to prove. He then calls his witnesses; who, having been sworn, are examined by him, and then subjected to cross-examination by the prisoner or his counsel. The counsel for the prosecution may re-examine on matters referred to in the cross-examination. The Court also may, at any time, interpose and ask questions of the witnesses. At the conclusion of the case for the prosecution the defendant's counsel may, if he thinks proper, submit to the Judge that there is no case for him to answer, and if the Judge is of that opinion he will direct the jury to acquit the defendant (b).

After the case for the prosecution is closed, it is ascertained whether the defence intend to call any witnesses. If it is intended to call for the defence the person accused as a witness but no other witness as to the facts, the defendant then gives his evidence (c), and then, or at the close of the evidence for the prosecution, if no evidence at all as to the facts is given for the defence, the counsel for the prosecution may, in case the prisoner is defended by counsel, but not otherwise, address the jury a second time in support of his case, for the purpose of summing up the evidence against the prisoner (d). He must, however, in this speech, and in his final reply if he has one, be careful to observe the rule that if the defendant has not given evidence on oath or has not called his wife as a witness, his failure to do so must

(b) As to this, see further, p. 476.

(c) 61 & 62 Vict. c. 36, s. 2. As to the examination of the person accused and his wife, v. p. 365. Although the prisoner only gives evidence, counsel for the prosecution is permitted, in summing up his own evidence, to comment also upon that given by the prisoner, R. v. Gardner, [1899] 1 Q. B. 150; 68 L. J. Q. B. 42. (d) 28 & 29 Vict. c. 18, s. 2.

not be made the subject of any comment by counsel for the prosecution (e). If the prisoner has witnesses whom he wishes to call, in addition to giving his own evidence, his counsel opens the case for the defence, and calls these witnesses in support thereof. They also are subject to crossexamination by the counsel for the prosecution, and reexamination by the counsel for the defence on this crossexamination. The Judge may in his discretion allow the prosecution to call witnesses to rebut or answer evidence given for the defence, but this will not usually be permitted where such witnesses could, and in fairness ought to, have been called by counsel for the prosecution before he closed his case (f). The counsel for the prisoner is entitled, at the close of the examination of the witnesses, to sum up his evidence (g).

After this address by the counsel for the defence, the counsel for the prosecution has the right of reply in cases where evidence, written or parol, has been adduced in defence. This does not, however, apply where the only witness called for the defence is the person who is upon his trial, as in such a case the prosecuting counsel has no right of reply after the prisoner's counsel has addressed the jury (h); moreover, where the only additional evidence called for the prisoner is as to his character, the right of reply is never exercised. If no evidence has been adduced for the prisoner other than his own evidence, the address of the counsel for the defence is the last. There is, however, one exception. In those Crown cases in which the AttorneyGeneral or Solicitor-General is personally engaged, a reply, where no witnesses have been called for the defence, is allowed as of right to the counsel for the Crown (7). If two prisoners are jointly indicted for the same offence, and only one calls witnesses, the counsel for the prosecution has the

(e) 61 & 62 Vict. c. 36, s. 1 (b).

(f) R. v. Crippen, [1911] 1 K. B. 149.

(g) 28 & 29 Vict. c. 18, s. 2.

(h) 61 & 62 Vict. c. 36, s. 3.

(i) See the resolution of the Judges in Dec. 1884; 5 State Trials, New Series, p. 3, note (c); Archbold, 200.

right to reply generally; but this is summum jus, and ought to be exercised with great forbearance, and if the offences are really separate, the prosecuting counsel can only reply on the case of the party who has called witnesses (k). If the prisoner is not defended by counsel, he may cross-examine the witnesses for the prosecution and examine his own witnesses; and, at the end of such examination, address the jury in his own defence, either upon oath or not, as he may prefer. And if one only of two prisoners jointly indicted is defended by counsel, the undefended one may crossexamine and examine as above, and make his statement to the jury before or after the address of the counsel for the other, as the Court thinks fit. If the prisoners jointly indicted are defended by different counsel, each counsel cross-examines, either in order of seniority at the bar, or in the order of the names of the prisoners on the indictment, the latter being the more usual course. If a prisoner defended by counsel wishes to address the jury and examine and cross-examine witnesses, he may do so; and his counsel may argue points of law, and suggest questions to him in cross-examination; but he cannot, as a matter of right, have counsel to examine and cross-examine witnesses, and reserve to himself the right of addressing the jury (1), otherwise than as a witness from the witness-box.

Nevertheless in some cases the prisoner, though represented by counsel, has been allowed to make a statement not upon oath (m), though whether he should do so before or after his counsel has addressed the jury does not appear to be well settled (n).

As to the practice of allowing counsel defending a prisoner to make, in his address to the jury, a statement of facts not intended to be proved, it formerly varied (o). But with a

(k) R. v. Jordan, [1839] 9 C. & P. 118; v. also R. v. Trevelli, [1882] 15 Cox, 289; and Archbold, 223.

(1) R. v. White, [1811] 3 Camp. 97; 13 R. R. 765.

(m) R. v. Manzano, [1860] 2 F. & F. 64; R. v. Doherty, [1887] 16 Cox, 306. (n) R. v. Pope, [1902] 18 T. L. R. 717; R. v. Sherriff, [1903] 20 Cox, 334; see Archbold, 196.

(0) R. v. Weston, [1879], 14 Cox, 346.

view to settle the practice on this point, a meeting of the Judges was held on November 26, 1881, and the following resolution was come to, viz., "That in the opinion of the Judges it is contrary to the administration and practice of the criminal law, as hitherto allowed, that counsel for prisoners should state to the jury, as alleged existing facts, matters which they have been told in their instructions, on the authority of the prisoner, but which they do not propose to prove in evidence" (p). Whatever hardship this rule may have sometimes inflicted when prisoners were unable to give evidence on their own behalf, there can be none now that they may give such evidence in all cases.

It will simplify matters if we tabulate the steps in the various cases which may occur.

i. The prisoner defended by counsel and adducing evidence in defence in addition to his own evidence.

Counsel for prosecution opens his case.

Counsel for prosecution examines his witnesses, who may be then cross-examined and re-examined.

Counsel for defence opens his case.

Counsel for defence examines the prisoner (if he is called) and his other witnesses, who may be then crossexamined and re-examined.

Counsel for defence sums up his case.

Counsel for prosecution replies.

ii. Prisoner defended by counsel, but not adducing evidence except his own evidence.

Counsel for prosecution opens his case.

Counsel for prosecution examines his witnesses.

Prisoner (if he desires to do so) gives his evidence.

Counsel for prosecution sums up his case.

Counsel for defence addresses the jury.

(p) v. Archbold, 222.