such an abuse. In such a case it would not be unreasonable to ask the court to try each case [count or each set of counts] separately.' For other instances, see Law Journal newspaper, June 1, 1907, p. 359. In Warren, 1907, Bosanquet C.S. quashed embarrassing counts for misdemeanour as an abuse of the process of the court.

In an indictment for murder there ought not to be a count for a crime of violence: J. Jones, 13 Cr. A. R. 86, 1918: c. for latter q.

Trial] When under R. 3, Ind. A., charges are 'joined,' all the counts should be tried together: Ailes, 13 Cr. A. R. 173, 1918.

Compound felonies] Some charges have always involved more than one felony: see 2 Hale, P. C. 173; Mr. Greaves's note above; and Form 10 under the Ind. A. 1915, where three (or four) are included in one count.

Embarrassment-misjoinder in felonies] In practice, where a defendant was charged with several felonies in one indictment, and had pleaded, or the jury had been charged, the court had a discretion to quash the indictment-if he would be embarrassed in his defence; or if the fact was not found out till after the jury was charged, would compel the prosecutor to elect on which charge he would proceed. Young, 3 T. R. 98, 1789; 1 Lea. 505; 1 R. R. 660; 2 East P. C. 828, 833; East P. C. 935, cf. 515.

The only general rule that can be laid down to guide the judge's discretion is that of L. Ellenborough, cited above, in Whiley. Where the first count was for breaking and entering a shop and stealing therein, the second for receiving the stolen property, and the third for receiving bank-notes, proceeds of the larceny, and the judge made the prosecution elect, and the third count was withdrawn, the C. C. A. refused to interfere on the ground that the indictment was bad: H. Elliott, 1908, 2 K. B. 452; 21 Oɔx C. C. 666; 1 Cr. A. R. 15; 72 J. P. 285; 24 T. L. R. 645; 99 L. T. 200.

In Rye, 2 Cr. A. R. 155, 1909, the allegation was stealing various articles between Oct. 21 and Feb. 9,' no other date being alleged; most of the larcenies were on Feb. 9, and the rest between Oct. 21 and Oct. 31, but there was nothing to show more than three takings, and though the C. C. A. thought there ought strictly to have been one count for each date (Feb. 9 and Oct. 21-31), yet it summarily dismissed the appeal.

Even before the Indictments A. the C. C. A. would not interfere on a technical ground where there were no merits, though the indictment was bad, i.e. it applied the proviso to s. 4 of the Crim. Ap. A.: J. Harris, 5 Cr. A. R. 285, 1910, where no objection was taken at the trial-unlike Edwards and Gilbert, 1913, 1 K. B. 287; 82 L. J. K. B. 347; 23 Cox C. C. 380; 77 J. P. 135; 108 L. T. 815; 29 T. L. R. 181; 8 Cr. A. R. 128, which was decided on a s. now rpd., but is useful as illustrating the C. C. A.'s view of embarrassment. Appellants were indicted, with two others (who were acquitted), on one count against one appellant for stealing five sacks of wheat on Oct. 22, on another the same appellant and one of the acquitted men for stealing four sacks, &c. on Oct. 29, and on a third that the other appellant and the other acquitted man received four of the sacks-all being laid as the property of the same firm-well knowing, &c. The chairman refused to make the prosecution elect and declined to quash either of the larceny counts. 'Both the alleged receivers,' said the court,

were embarrassed by the addition of the charges made against the defendant acquitted of the larceny'; it declined to hold that there had been no substantial miscarriage of justice,' and quashed the convictions, especially as the chairman below thought that appellants were unduly prejudiced.

But in J. A. Thompson (incest), 1914, 2 K. B. 99; 83 L. J. K. B. 643; 78 J. P. 212; 24 Cox C. C. 43; 110 L. T. 272; 30 T. L. R. 223; 9 Cr. A. R. 252, the court (five judges) followed Harris; one count alleged the offence on divers dates between January, 1909, and the 4th of October, 1910'; a second alleged the like on divers days between the 4th October, 1910, and the end of February, 1913'; at the trial the judge refused to quash on the ground of duplicity; general verdict; the court held that defendant had not in fact been embarrassed or prejudiced.

Now, by R. 5 (1), there may be alternative allegations in a count. 'Duplicity'] Where there were two counts for larceny of a postal packet in transmission under the P. O. A. 1908 (property of postmastergeneral), and receiving the same, two similar offences under 24-5 V. 96 (property in the consignee), and two under (rpd.) 59-60 V. 52, for receiving here goods stolen abroad and unlawful possession thereof, the judge refused election; conviction on counts one and two; and appeal on the ground of embarrassing misjoinder, the C. C. A. said: *The main proposition . . . is that there were in this case three distinct and separate felonies alleged in the counts,' reviewed the line of cases and denied that the judge is bound in law to quash or to put to election; the rule is one of practice and procedure devised.. for the purpose of protecting prisoners from embarrassment and oppression'; in order to exercise his discretion the essential thing for the judge is to determine whether the overt acts relied upon in support of the offences charged in the counts are in substance the same for each offence.' However, on the evidence the court thought that all four defendants ought not to have been convicted both of larceny and receiving, but as this informality did not affect the sentences no relief was given: Grizzard, Lockett, &c., 1914, 2 K. B. 720; 83 L. J. K. B. 1193; 78 J. P. 196; 24 Cox C. C. 114; 110 L. T. 398; 30 T. L. R. 233; 9 Cr. A. R. 268. The matter is within the discretion of the judge: E. Curtis, below; Yousry.

The prosecutor may be permitted to elect out of several indictments, one for a lesser offence, even though there are some on a capital charge: The Bank Prosecutions, where each of five counts charged the firing of a house of a different person, and it was opened that the five houses were in a row, and that one fire burnt them all; Erskine J. refused to put the prosecutor to his election, as it was all one transaction,' adding, I shall take care that as the case proceeds the prisoner is not tried for more than one felony.' Trueman, 8 C. & P. 727, 1839, a good illustration of L. Ellenborough's dictum in Whiley. So Davis, 3 F. & F. 19, 1862. Cf. Brannon.

The leading case, Heywood, L. & C. 451, 1864, is, since the Indictments A., of little importance.

Indictments and counts not elected for prosecution] Where there has been an election and an acquittal, there should be an acquittal on the indictments and counts not prosecuted, as is the practice of the C. C. C. After convictions, such non-elected indictments and counts are only exceptionally prosecuted: cf. Britton, 1833. The practice

here mentioned is important technically in view of 11-12 V. 42, 3,

Joinder: Misdemeanours.

267

whereby any prosecutor' may obtain from the clerk of the court at 'the end of the sessions' a certificate that a person indicted has not duly 'already appeared and pleaded to such indictment,' and if he shall then be at large' he may be arrested (if necessary, on warrant) and committed for trial. If he is not at large, procedure is simpler.

* Remaining on the file'] The crown may formally declare its refusal to go on (nolle prosequi, which see), or may simply abstain from going on, in which case the indictment remains on the file.' In the latter case it seems that the defendant has no right to a trial on such indictment, and, therefore, not to an acquittal. But occasionally a defendant after conviction (and sentence) on one indictment has been allowed, on his application, to be arraigned on such indictment and, no prosecutor appearing, to be formally acquitted. Boyle, C. C. C. June, 1919, cor. Fulton, Recorder. In such a case the court must satisfy itself that the prosecution does not intend to proceed. In other cases such an application has been refused: V. Woolf, C. C. C., June, 1915, cor. Lush J. But the C. C. A. has no power to order an indictment to be taken off the file: Laws, 1 Cr. A. R. 8; 72 J. P. 271; 24 T. L. R. 630, 632, 1908.

Counts for receiving] By 24-5 V. 96, 92, 'In any indictment containing a charge of feloniously stealing any property, it shall be lawful to add a count or several counts for feloniously receiving the same or any part or parts thereof knowing the same to have been stolen,' and vice versa; and where any such indictment shall have been preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property, or of receiving the same or any part or parts thereof knowing the same to have been stolen; and if such indictment shall have been preferred and found against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving the same or any part or parts thereof knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same or any part or parts thereof knowing the same to have been stolen. For earlier cases, see under Receiving.

Misdemeanours] The general rule-of avoiding embarrassmenthas always been the same in misdemeanours, but naturally in practice there has been more latitude.

The C. C. A. strongly objects to complaint of misjoinder of misdemeanours being deferred to the appeal: Stoddart, 2 Cr. A. R. at 237; though it said, ib. 'It may well be that in a particular case it is undesirable that an investigation of more than one misdemeanour should proceed at the same time.' But in E. Curtis, 1913, it saw no objection to three charges of indecent assault on different persons on three different days. For old common law cases see, for instance, Benfield, 2 Burr. 984, 1780; Young, 31 T. R. 103, 1789; Darley, 4 East, 179, 1803; Kingston, 8 East, 46, 1806; and Towle, 2 Marsh. 466, 1816; and cf. Judgment.

In Trevelli, 15 Cox C. C. 289, 1882, there were eleven defendants charged in one indictment (of ninety-four counts, some against all jointly, some against several jointly, others against most of them in

dividually, and alleging different days of commission of offences) with obtaining by false pretences and with conspiracy to defraud: cf. Warren, 1907. In G. W. Norman, 1915, 1 K. B. 341; 84 L. J. K. B. 440; 79 J. P. 221; 31 T. L. R. 173; 24 Cǝx C. C. 681; 11 Cr. A. R. 58, the C. C. A. disapproved of a trial on six counts charging the obtaining both chattels and credit by false pretences, and reduced the sentence to the maximum for the lesser charge; there ought to have been election.

Where two defendants were indicted for a conspiracy, and also for a libel, and at the close of prosecution there was evidence against both of the conspiracy, but no evidence against one of the libel, Coleridge J. put the prosecutor to his election before counsel opened the defence. Murphy, 1837. In conspiracy to defraud an insurance company, one set of counts alleged a fire on the 7th June, and another one on the 25th of November; the prosecution was made to elect, Martin B. ‘prohibiting counsel in his opening speech from travelling into matters irrelevant to it.' Barry, 4 F. & F. 389, 1865. Cf. Burch, ib. 407, 1865. It is unusual to charge in the same indictment, misdemeanours of a different nature as assault, false pretences, and libel.' Saunders on Indictments, 3rd ed. 1914, p. 28. A prosecutor cannot maintain two indictments against a bankrupt, one for concealing and embezzling his effects, the other for the same and not disclosing and not delivering his effects, both substantially for the same transaction, and he must elect to proceed with the one and abandon the other: i.e. the judge who had no power to quash either, as both were good, agreed with counsel before plea pleaded that he would not try the one unless the prosecution would abide by the event of it... both in lictments ought not to hang over the defendant.' Britton, 1 Moɔ. & R. 297, 1833. But cf. Leatham, 1860, and Handley, 1833.

It has been said that it is not usual to put the prosecutor to his election immediately on the case being opened. Wigglesworth, 1834; Hindmarch's Suppl. to Deacon's Crim. L. 1583; but cf. Britton, above. And semble, that the election ought to be made before defendant is called on for his defence at the latest. Ib.

Defendants jointly charged] If an offence committed jointly is alleged, defendants may be indicted in one indictment or separate indictments; but there cannot be a joint indictment for perjury: Philips, 2 Stra. 921, 1731, where the court pointed out the special danger of joint indictments: the jury on the trial of all may apply evidence to all that is but evidence against one.' This was exemplified in Rowan, 5 Cr. A. R. 282, 1910: c. q. of one defendant on this ground. But the jury may find a different offence against each: C. Connor, 8 Cr. A. R. 152; 77 J. P. 247; 29 T. L. R. 212, 1913: four defendants, three verdicts. Where several defendants were indicted separately for separate but exactly similar common law forgeries, Crompton J. permitted them, the prosecution agreeing, to be tried together: Hartshorn, 6 Cox C. C. 395, 1853. The C. C. A. favoured separate trials on a joint indictment when it appeared that the defence of one defendant was incriminatory of another: Lee and Parkes, 13 Cr. A. R. 39, 1917; but as neither appellant obtained relief, the case is not very clear. It was commented on in Gibbons and Proctor, 13 Cr. A. R. 134, 1918, when the only rule the C. C. A. laid down was that the judge's discretion must be judicially exercised; it is not enough that counsel could have defended more easily' if there had been separate trials. See 1 Stark. Crim. Pl., ch. 2.

Defective, &c. Indictments: Quashing.

269)

A joint indictment may contain counts against the individuals only as well as against all jointly: Cox, 18 Cox C. C. 672, 1897: C. C. R.,. which relied on Kingston, 1806 (highway case), where, however, of nine defendants, no count charged all and no one charged one separately, the ground for objection being clearly that there must be likely embarrassment to defendant; Lawrence J. thus stated the common law, though four for several offences may be indicted in the same indictment, it is as several indictments in law,' citing 2 Hale, 174. Hence, it is entirely within the judge's discretion whether there shall be a separate trial: Ram, 17 Cox C. C. 610, 1893. Where that discretion was not exercised, the C. C. A. thought that the jury were prejudiced against one co-defendant by evidence against another: c. q. Dibble. Where one co-defendant gives evidence for another, the jury may accept it for and acquit the former and yet convict the latter: Seddon, 7 Cr. A. R. 207, 1912.. See Trevelli and under Receiving.

S. 5 (3) of the Indictments A., though dealing primarily with joinder of offences, seems, in the words for any other reason,' to permit joined defendants being tried separately.

The C. C. A. will not entertain an appeal on this ground unless the request for severance was made at the trial: C. Baker, 2 Cr. A. R. 249, 1909: rape.

'IX.

Defective indictment] A judge may refuse to try an indictment clearly bad in point of law-a defendant has no right to be tried on a defective indictment: Dunn, 1843-and may discharge the jurythough the defendant does not move: Deacon, 1824; Tremearne, 1824; Hepper, 1825; Ry. & M. 27, 147, and 210; 1 C. & P. 608. Even when defendant waives the objection: L. Huntingtower, 1 Cox C. C. 47, 1843: error on variance in perjury: no evidence offered.

This is not technically quashing the indictment, but apparently a prevention of abuse of the process of the court. The Indictments A. has certainly not taken this power away, for s. 5 (2) clearly contemplates an indictment so defective as to be unamendable, in which case this power may be convenient. But the usual remedy is by

Quashing] This is purely matter of discretion, and the court may leave the defendant to demur or seek a writ of error (Lynch)' [below]: 7 Encyc. Laws Eng. 126, 1908 [now to appeal]. Where the court refuses to quash, the defendant, if he desires to reserve all rights, refuses to plead so as to prevent the curing of any defect, and a plea of not guilty is entered for him by the court.' By the common law, the time to move is undoubtedly before plea pleaded or jury sworn: Rookwood, 13 St. Tr. 161, 165, 174-5, 1696; cf. Foster, Cr. C. 231.

It is said that indictments for Nuisance (which see) are never quashed.

Indictments have been quashed because the facts stated in them did not amount to an offence punishable by law: Burkett, Andr. 230, 1738; Sarmon, 1 Burr. 516, 1758; Wright, ib. 543, 1758; Philpott, 1 C. & K. 112, 1843; or to an indictable offence: Hall, 1891. They may be quashed on motion. Ib. Thirteen out of thirty-three counts were quashed by Bosanquet C. Sgt. in Boughton, 1911.

Defendant moving] Where the motion is on the part of the defendant, the courts usually refuse to quash when it is preferred for some great crime, such as treason or felony, 'unless upon the clearest