Preliminaries to Trial: Postponement.

255

the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session without entering into any fresh recognisance for that purpose.' Thus, the old traverse (= postponement: O. French traverser, to deny) is abolished, and misdemeanours are put on the same footing as felonies in this respect.

Absence of witness] The trial may be postponed where it appears by affidavit that a necessary witness for defendant is ill. Hunter, 3 C. & P. 591, 1829. Other grounds are that a witness is unavoidably absent, or is kept out of the way by the contrivance or at the instigation of defendant-unless it appear that the requirements of justice can be satisfied by reading the witness's depositions. See Stokes and other cases for discharge of jury on postponement.

Where the C. Č. A. thought that there should have been an adjournment below in order to call witnesses, it granted leave to appeal and heard the witnesses: J. A. Gray, 1 Or. A. R. 154, 225, 1908; so where defendant, a foreigner, tried three days after the offence, had no time to call his evidence for an alibi: Malvisi, 2 Cr. A. R. 192, 251, 1909: c. q.

If, in felony, the prosecution wishes to put off the trial on this ground, if the absentee has not made a deposition, the judge will require an affidavit stating the points which he is expected to prove, in order to judge whether he is material' or not. Savage, 1 C. & K. 75, 1843. An affidavit of a surgeon, that the witness's unweaned child is afflicted with an inflammation, &c., and could neither be brought to the assize town nor separated from the mother without danger to life, is a sufficient ground. Ib. Where defendant's counsel moved to postpone a trial for murder, on an affidavit which stated that one of the witnesses for the prosecution, who had been bound over to appear at the assizes, was absent, and that on cross-examination this witness could give material evidence for the defence, this was held a sufficient ground for postponing the trial, without showing that the defence had at all endeavoured to procure his attendance, as they might reasonably expect that a witness bound over would appear. Macarthy, Carr. & M. 625, 1842. In Palmer, 6 C. & P. 652, 1834, the judges at the C. C. C. postponed until the next session the presentment of a bill for murder, on the affidavit of the attorney for the prosecution, that a * material' witness was too ill to attend, and they refused to refer to his deposition when it was stated that he did not depose to material facts. When, after the close of the defence, there was an adjournment to call witnesses (to prove ownership, in a receiving case), counsel having taken the point that it was not properly proved, but he was allowed to deal with their evidence, the C. C. A. thought the judge had a discretion to adjourn: W. Jackson, 14 Cr. A. R. 41, 1919.

In general, a trial will not be postponed before a bill is found and plea pleaded. Heeson and Bolam, 1839. But where the prosecution desired to try Doran, 10 Cr. A. R. 67, 1914, with other persons not yet committed, a successful application to postpone his trial till the next sessions, in case a bill-there being none at the time-should be found against him, was approved by the C. C. A. In Chapman, 1838, the trial was postponed after bill found because a material witness, taken ill or worse before the grand jury, could not, according to two surgeons sent by the court, give evidence. Abinger C.B. (below) said that he could not grant bail after bill found in murder, though if the postponement had been made before, he might have done so: the discretion in such a case had never been exercised. But where there was an affidavit

that the attendance of witnesses from a workhouse in which small-pox had broken out, was necessary, Baggallay L.J. did not require any bill to be sent up, but postponed the trial to the next assizes, admitting defendant-who seems to have made no objection to this course-to bail. Taylor, 15 Cox C. C. 8, 1882. The C. C. A. regretted that Q. S. had not postponed a trial when counsel, who was defending from the dock but had a good reason for being absent, made the application: W. Morse, 4 Cr. A. R. 51, 1910.

Miscellaneous grounds] In Johnson, 1847, Alderson B. refused to postpone the trial of a murder, on the ground that an opportunity might be therefore afforded of investigating the evidence and the characters of certain persons not before the magistrate, who were to be called to prove previous attempts by defendant on the life of the deceased; but a trial for murder was postponed on an affidavit of a medical man that a witness was unable to travel, although he was not before the magistrate, and although the trial had been fixed for a particular day. Lawrence, 4 F. & F. 901, 1866.

Local feeling] Where, in a murder committed in Newcastle-uponTyne, which had created great excitement, several local journals down to the time of the assizes had published paragraphs, implying or tending to show the guilt of an accused person, and it appeared that the jurors at such assizes were chosen from within fifteen miles round Newcastle, where such papers chiefly circulated, but that at the summer assizes they would be taken from the more distant parts of the county (the indictment had been removed from the county of the town of Newcastle, a grand jury of which had found it, into the county of Northumberland), Alderson and Parke BB. postponed the trial until the following assizes, the latter being chiefly moved by the prospect of the trial being before persons living in the midst of this excitement,' and saying, The publication of the evidence given before the coroner was, in itself, highly improper, and might have been made the ground of indictment against the publisher.' Alderson B. said, 'I yield to the peculiar circumstances of the case, wishing it to be understood that I am by no means disposed to encourage a precedent of this sort.' Bolam, 2 Moo. & R. 192, 1839. See also Jolliffe, 1791.

Costs Where defendant applies to postpone the trial, he may be admitted to bail, but never on condition that he pay the costs of the prosecutor, a matter which is not considered till the trial. Hunter, 1829. Nor does he receive them when the prosecution postpones: Crowe, see below; in such case, the court in its discretion will either detain defendant in custody, or admit him to bail, or discharge him on his own recognisance. Beardmore, 7 C. & P. 497, 1836; Parish, ib. 792, 1837; Osborne, ib. 799, 1837; see also Crowe, 4 C. & P. 251, 1829; whence it may be gathered that where defendant is suspected of colluding with the absent witness, the terms imposed on him, in case of a postponement, are heavier.

At

At the spring assizes a bill was found against A. for shooting B. The trial was postponed till the summer, on the ground that B. (who shortly afterwards died) was too ill to attend. those assizes a bill was found against A. for the murder, and an application was made by the prosecution to put off the trial until the following spring on account of the illness of a material witness. Williams J. granted the application, which was opposed, and held that A. was not entitled to his discharge under 31 Car. 2, 2,

Preliminaries to Trial: Pleas.

257

saying: 'Who can prevent such an occurrence as this?' That A. 'is a humar law and must be humanly interpreted his trial must be subject to human contingency.' Bowen, 9 C. & P. 509, 1840; see Chapman, 1838.

Adjournment at common law] The application should be made before defendant is given in charge to the jury (below), as it is very doubtful whether, if the adjournment of the trial involves a discharge of the jury, it would be granted. It seems that, after that stage in felony, a judge has no authority at common law to adjourn the trial till another day on account of the absence of witnesses, but only to keep the jury in the box (or locked up) the same day. Foster, 3 C. & K. 201, 1848; Parr, 2 F. & F. 861, 1862; but see now 60 V. 18. Adjournment for convenience-from day to day] For a long time criminal trials were concluded within the day, but in Stone, 1796, 'The court having sat on the first day [of the two] of the trial from nine o'clock in the morning till ten o'clock at night without any interruption or refreshment, and the attorney-general stating that his evidence would occupy four hours more, and some of the jury being very much exhausted and incapable, as they declared, of keeping up their attention much longer, the court adjourned till 9 o'clock the next morning: Lord Kenyon observing that necessity justified what it compelled: 6 T. R. 530; 25 St. Tr. 1295, 1796, where it appears from a note that 'cases of such extraordinary length' were only known in 'modern times,' and other instances are given. In Sheares, 27 St. Tr. 364, 1798; treason, Curran, for defendant, was refused an adjournment after a sitting of sixteen hours, with only twenty minutes' interval, as the A.-G. would not consent, though L. Carleton C.J. said that he was as much exhausted' as any one else; the trial duly proceeded, the verdict being delivered 'near eight o'clock' the next morning, sentences being postponed till 3 p.m. Of. Langhorn, at 497, 1679, and Hardy, 1794, at 414.

The necessity of adjournment-in long cases-was defended by Eyre L.C.J. in Horne Tooke, at 130, 1794; the court sat from 9 a.m. to 9 p.m., with the interval of a quarter of an hour.

VII.

the

Pleas] There are several pleas in criminal cases, but the only ones that are at all likely to occur in ordinary practice are those 'in bar, guilty,' the three special pleas, autrefois acquit, autrefois convict and pardon (for a fourth, justification, see Libel), and the general issue of not guilty. A plea in bar means a substantial defence, and a general plea in bar raises the 'general issue' and traverses whole indictment by alleging that the defendant is not guilty": Kenny, Outlines, 468. See generally, 1 Russ. Cri. 38. Pleas in abatementare founded either on some defect apparent on the face of the indictment, without reference to any extrinsic fact, or are founded upon some matter of fact, extrinsic of the record which renders the indictment insufficient.' 1 Chitty, Crim. L. 445: e.g. in C. Knollys or the Earl of Banbury, 1692, Holt C.J. ruled that as he was indicted by the former name, it was a misnomer, and the indictment must be abated': Skinner, 527.

Pleas to the jurisdiction] The objection that the court has no jurisdiction to try the indictment may be simply stated in this form: cf. Britton, 1833; or, in abatement, by a peer: E. of Banbury, above;

or by demurrer or motion in arrest of judgment or to quash the indictment or under 'not guilty '—the two latter forms being the commonest. Even before the Indictments A. Prof. Kenny observed that the two pleas of jurisdiction and abatement have been rendered obsolete by the powers now given to the courts to amend indictments': Outlines, 468.

Guilty] A plea of guilty does not necessarily admit the truth of the facts contained in the depositions. It is simply an admission that defendant is guilty of the offence charged in the indictment and nothing more: per Hawkins J., Riley, 1896. See Guilty, in Index.

By 4-5 G. 5, 58, 39 (1): 'Where a prisoner is arraigned on an indictment for any offence, and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence.' If the other offence' is known to the prosecution, in all probability it could, since the Indictments A., be charged in a count.

Withdrawal of plea] Where one defendant of three jointly indicted for conspiracy pleaded guilty and the other two not guilty, and the latter were acquitted, the former had a right to withdraw his plea and to be acquitted. Plummer, 1902, 2 K. B. 339; 71 L. J. K. B. 805; 66 J. P. 647; 20 Cox C. C. 269: C. C. R. But it will require a very strong case and exceptional circumstances to induce the O. C. A. to allow an appeal against conviction after a plea of guilty: Lucas, 1 Cr. A. R. 62, 1908; but it did so in Verney, 2 Cr. A. R. 107, 1909: c. q., where the confession was false. Cf. Admissions.

The C. C. A. has heard appeals after plea of guilty in the following cases-all of alleged mistake: Baker, 7 Cr. A. R. 217; 28 T. L. R. 333, 1912: defendant said, 'guilty of having' coining moulds in possession'; this was mistaken for a plea of guilty, but it appeared that there was a defence: c. q., but defendant remained in custody to plead again to indictment. Ingleson, below. Rhodes, 11 Cr. A. R. 33, 1914, larceny: appellant said his plea was taken as guilty by mistake, but, on the facts, the court was not satisfied of this statement: appeal dismissed. Golathan, 11 Or. A. R. 79; 84 L. J. K. B. 758; 112 L. T. 1048; 79 J. P. 270; 31 T. L. R. 177, 1915: entering a house by night with intent to steal; entering admitted, but not the intent; plea entered for full offence: c. q.: no other order. In L. Alexander, 7 Cr. A. R. 110; 23 Cox C. C. 138; 76 J. P. 215; 28 T. L. R. 200; 107 L. T. 240, 1912: abduction: defendant, during the course of the trial, after certain remarks by the judge on the law, pleaded guilty; the law having been misstated, c. q. In H. Taylor, 11 Cr. A. R. 198, 1915, where defendant pleaded guilty, but despite his counsel's protest Q. S. entered a plea of not guilty, and the verdict was that he was insane, the C. C. A. declined to interfere.

.

Duty of court] The court must be satisfied that the plea is to the legal offence; when defendant pleaded guilty to stealing and receiving horses, but at the same time handed in a statement to the effect that he did not know they were stolen, it was held that a plea of not guilty should have been entered: c. q., but a venire de novo ordered at assizes, as they preceded sessions: Ingleson, 1915, 1 K. B. 512; 84 L. J. K. B. 280; 112 L. T. 313; 11 Cr. A. R. 21. Of. Baker,

Evidence after plea of guilty] In Babington, Savage, &c., 1 St. Tr. 1130, 1586, Popham A.-G. said: Albeit there were now nothing further to be done but to proceed to judgment upon' defendant's own confession, yet forasmuch as the crown desired that the hearers should be satisfied, and all the world know how justly he was to be condemned, they crave licence to give such evidence as would sufficiently and fully prove the indictment,' which was granted. Cf. Hamilton, 7 St. Tr. N. S. 1131, 1849.

Special pleas] By 14-15 V. 100, 28: In any plea of autrefois convict or autrefois acquit, it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment.' They may be pleaded orally. See Birchenough, 1836, and 8 E. 7, 67, 15. If the plea fails, defendant will be allowed-in favorem vitæ aut libertatis-to plead over in felony, but not in misdemeanours, for the plea is a plea in bar. Taylor, 3 B. & C. 502, 1824; cf. 1 Chitt. Crim. Law, 457. See below, and Charlesworth, 1861, where also see the case of a jury discharged without verdict.

The onus of proof lies on defendant. By 14-15 V. 99, 13, it is enough for him to produce a certified copy of the record. Where the record had not been made up, the court postponed the case in order that it might be done: Bowman, 6 C. & P. 101, 1833; and ultimately the K. B. granted a mandamus for that purpose. JJ. of Middlesex, 5 B. & Ad. 1113, 1834. When the second indictment is tried under the same commission as the first, see Horne Tooke and Parry, 1837, where a plea of autrefois acquit stated that the felonies, &c. in a second indictment were the same as those in the first: replication that they were not the same: issue: defendants' counsel began, put in and read first indictment and minutes of acquittal written over their names therein: no other evidence was given: verdict for defendants: fourteen judges, including the trial judge, held that the evidence was sufficient, and that if in fact there were two felonies, there was nothing to prevent a fresh indictment for the second. An acquittal for conspiracy to commit an offence is not a bar to a charge of aiding, &c. it: Kupferberg. These pleas are good in a case like Culliford.

The jury have to try these pleas as a matter of fact: Tancock. In autrefois acquit it is necessary to prove that there could have been a conviction on the first indictment of the offence charged in the second. This appears by the record, but as was pointed out by Parke B. in Bird, 2 Den. C. C. 94, 1851, at 198; 5 Cox C. C. at 89, something more is necessary; because, as the language of an indictment describing any offence is in general not material as to the date or place, or many other circumstances if in the same county, the indictment would be equally descriptive of many offences of a similar character-and an acquittal of the offence charged on one indictment, describing it in proper terms sufficient in point of law, would be an acquittal of every offence of the same sort, in the same county, and against the same person; but in order to constitute a good plea of autrefois acquit, the plea must state, and it must be proved that the offence charged in the former indictment was the same identical offence with that charged in the indictment pleaded to. This being clearly the rule, there would not be much difficulty in applying it to an ordinary charge of felonylarceny, for instance, of the goods of A. B., or an ordinary charge of assault upon A. B. The prisoner charged on such an indictment, would have to satisfy the court, first, that the former indictment, on