the C. C. A. observed: 'In many cases this is a matter of the highest importance, but in this . . not. . . of any.'

Good character] Strictly it is only in cases of doubt that a jury is entitled to take this into consideration: Bliss Hill, 13 Cr. A. R. 125, 1917. In offences which lead to doubts of the offender's sanity, no inference can be suggested on this ground: Brownhill, above.

Reasonable doubt] So long as this point is properly made, the wording is unimportant: Sykes.

Habitual criminal] See that title.

l'erdict not clear] For the powers of the judge, see Verdict.

No summing-up] A judge may, in a simple case, invite the jury to say that they do not want one: Newman, 9 Cr. A. R. 136, 1913.

Interruption of summing up] Except to correct a clear mistake of the judge, this is not permitted: L. Preston, below; Layer, at 293, 1722; H. Hunt, at 485, 1820; Kams, 4 Cr. A. R. 8, 1916-counsel ought to correct an obvious mistake; W. Butler, 4 Cr. A. R. 145, 1910; Mowbray, 8 Cr. A. R. 9, 1912.

Amicus curiae] is first mentioned in 1586: 4 R. 39 b; Crompton, Fitzherbert's Justice, 33 b, 41.

No address to jury after summing up] 'It is contrary to the course of all proceedings in such cases to have anything said to the jury after the court has summed up the evidence. it is not the course to reply upon the court': per Holt L.C.J., L. Preston, at 743, 1691, who was undefended and as a favour was allowed to address the court and not the jury at this stage.

Witness called after summing up] This is occasionally permitted: Sullivant. Care must be taken to enable the other side to crossexamine and rebut, if it wishes: Howarth, 1918: c. q.

vi.

Discharge of jury without verdict (a) before deliberating] If a juryman be taken ill so as to be in competent opinion incapable of attending through the trial, the jury may be discharged and the defendant tried de novo: another juryman may be added to the eleven; but in that case the defendant should be offered his challenges over again to the eleven, and they should be re-sworn and the trial begin again de novo. Edwards, R. & R. 224, 1812; 4 Taunt. 309; 2 Lea. 621 n.; 3 Camp. 207; Ashe, 1 Cox C. C. 150, 1845; cf. Gould, in 1763, 18 St. Tr. 415 n.-juror carried out of court not being in custody of a bailiff the whole jury was necessarily discharged.

This course was taken in Lawrence, 25 T. L. R. 374, 1909: murder, the judge reading his notes to the witnesses who were asked to confirm them. If the juror retires temporarily from the box in the custody of a bailiff it is advisable, though not essential, to swear the latter to keep him strictly apart (except from a doctor): Crippen.

Where, in a felony, it was discovered that defendant had a relative on the jury. Erskine J. (and Tindal C.J.) held that he had no power to

discharge the jury, but that the trial must proceed. Wardle, C. & M. 647, 1842.

Absent witness] In manslaughter, it was discovered, after the swearing of the jury, that the surgeon who had examined the body was absent, and as defendant prayed that the jury might be discharged, they were discharged accordingly, and he was tried the next day. Stokes, 6 C. & P. 151, 1833. But the C. C. A., following Charlesworth and Winsor, below, and admitting that the discharging of a jury without a verdict is entirely within the discretion of the judge, thought that it should not take place in order to allow the prosecution to present a stronger case on another trial'; and disapproved of what was done in R. Lewis, 2 Or. A. R. 180; 73 J. P. 346; 78 L. J. K. B. 722; 25 T. L. R. 582; 100 L. T. 976, 1909, where the prosecution, in the middle of its case, owing to the absence of witnesses, had obtained an adjournment, and the jury was discharged.

When a juror during the hearing, unobserved, left the box and the court, the jury was discharged and a new trial had: the C. for C. C. R. approved. Ward, 10 Cox C. C. 573, 1867.

So where in the course of a trial for murder a juryman separated himself from his fellows and mingled with the public during an adjournment, Kennedy J. discharged the jury, and a fresh jury being subsequently impannelled defendant was tried and convicted. Macrae, Northampton Assizes, December, 1892. When a juror, on the retirement, left the court for about ten minutes the C. O. A. declined to consider whether defendant was prejudiced by the act or not: c. q. Ketteridge, 1915, 1 K. B. 467; 84 L. J. K. B. 352; 79 J. P. 216; 31 T. L. R. 115; 11 Or. A. R. 54: rape; distinguished from Twiss, 13 Cr. A. R. 177, 1918, where during an adjournment a juror spoke to a witness about the case.

(b) When the evidence on both sides is closed, and, indeed, when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till they have given in their verdict, but are to consider of it and deliver it in with the same forms, as upon civil causes. . . . But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court.' 4 Bl. Com. 360. Of. Wade, 1825. The ancient practice is illustrated by Watts v. Brains, Oro. Eliz. 778, 1600, appeal of murder; ten jurors found 'not guilty,' two 'because they could not endure or hold out any longer ultimately consented, but if the court disliked thereof, then they should all change the verdict.' 'The court much misliking thereof, being contrary to their direction, examined every one of them by the poll': a verdict of guilty was then found, and all the ten were fined and imprisoned.

Custody of the jury] Lilburne, 4 St. Tr. 1404, 1649: treason to the Commonwealth, when the jury were retiring, said: 'I understand the officer that is to keep their door hath declared something of bitterness of spirit against me; I desire, therefore, he may have some indifferent man joined with him to see I have fair play'; 'which was granted and he sworn.' That jury, on retiring, 'desired to drink a cup of sack, for they had sat long,' but the court refused, saying, 'in ordinary juries they have been permitted to drink before they went from the bar; but in case of felony or treason. . . never.' Ib. 1404. But they were allowed a light. Even in modern times juries are sometimes

without refreshment for undue periods: e.g. in J. Flood, 10 Cr. A. R. 227, 1914.

By 33-4 V. 77, 23: 'Jurors after being sworn may, in the discretion of the judge, be allowed, at any time before giving their verdict, the use of a fire when out of court, and be allowed reasonable refreshment, such refreshment to be procured at their own expense.' In O'Connell, &c., 1 Cox C. C. 411, 1843: misdemeanour, at 6 p.m. on the twentyfourth day of the trial, the summing up being concluded, the jury asked leave to go home, but Penne father C.J. said he had no power to permit them; they must go to the jury-chamber unless by consent' (which was not forthcoming) they were brought to a convenient place in the custody of the sheriff. They were, however, allowed to go to church on Sunday, in his care. In Stone, 1796: treason, L. Kenyon did not ask for any consent,' but the jury retired to an adjoining tavern,' and some such practice is invariable in England. In O'Connell, 'temperate refreshment' was allowed in the jury-room. It being Saturday, there was some doubt whether the verdict could be received on Sunday, and it was not, though found. In 4 Steph. Comm. 361, 1914, it is positively stated that it may not be given on Sunday.

No communication whatever may be made to a jury deliberating except by the consent of the judge, and when a clerk of assize, sent to them by the judge to know if they were agreed, answered questions of and advised some jurors, c. q.: Willmont, 10 Cr. A. R. 173; 78 J. P. 352; 30 T. L. R. 499, 1914.

In misdemeanours the practice has been to allow the jury to separate. See Kinnear, 2 B. & Ald. 462, 1819. Now, in England, by 60-1 V. 18, the Juries Detention A. 1897: Upon the trial of any person for a felony other than murder, treason or treason felony, the court may, if it see fit, at any time before the jury consider their verdict. permit the jury to separate in the same way as the jury upon the trial of any person for misdemeanour are now permitted to separate.'

Jury disagreeing] In Davison (by certiorari in the C. C. C.), defendant demurred on the ground that he had been tried before for the same offence, the jury having disagreed and been discharged; they had deliberated for five hours till all other business was finished. Three judges held, however, that the discharge of the jury was a matter for the discretion of the judge, and must be assumed to be for some valid reason, though no reason for the discharge appears on the record. 2 F. & F. 250; 8 Cox C. C. 360, 1860.

The power to discharge a jury was very much discussed in Charlesworth, 31 L. J. M. C. 25; 1 B. & S. 460; 8 Jur. N. S. 1091; 5 L. T. 150; 9 W. R. 842; 9 Cox C. C. 44; 2 F. & F. 326, 1861-an information for bribery; at the trial a witness (Fernandez) refused to give evidence. Hill J. committed him to prison, and a conviction being impossible, discharged the jury; the defendant objected, and applied for leave to place on the record a plea setting out these facts, but this the court refused on the ground that there was already a plea of not guilty on the record, and that in misdemeanour there could not be two different pleas; but they said the facts stated in the plea might be so recorded as part of the proceedings, which was accordingly done. A rule was then obtained, calling on the crown to show cause why judgment quod eat sine die should not be entered for defendant, and why the award of jury process and all other proceedings should not be set aside. The rule was discharged, the court being of opinion that,

whether the judge had power to discharge the jury or not, the defendant was not entitled to final judgment, and that the new trial ought to proceed; it being open to the defendant to take advantage of the objection (if any) on a writ of error.

Necessity] The weight of opinion seems to incline to that power being limited in law only by the discretion of the judge; but that it ought not to be exercised, except in some cases of physical necessity; or where it is hopeless that the jury will agree, or where there have been practices to defeat the ends of justice. Much reliance is placed by the court on the opinion of Crampton J. (set out in L. J. report), in Conway v. R., 7 Ir. Law Rep. 149; 1 Cox C. C. 210, 1845, who differed from his brethren, and took substantially the view afterwards taken by the Q. B. in England in Charlesworth.

The point was fully discussed in Winsor v. R., L. R. 1 Q. B. 289; 35 L. J. M. C. 121; 7 B. & S. 490; 12 Jur. N. S. 561; 14 L. T. 567; 14 W. R. 695; 10 Cox C. C. 327, 1866: murder, where after five hours' deliberation (at the end of the assizes) the jury could not agree; it was held by the Ex. Ch. that a judge had power to discharge the jury before verdict, when a high degree of need' for such discharge was made evident to his mind from the facts which he had ascertained; and that the exercise of this discretion could not be reviewed by a court of error, and that such a discharge-even if the discretion was improperly exercised-did not prevent defendant from being tried a second time.

No verdict on one defendant] Scroggs L.C.J. stopped the case (treason) against Whitebread and another, among several defendants, on a legal point expressly without an acquittal, and they were tried on another indictment for that crime later: 7 St. Tr. 120, 1678. But as early as 1696 this precedent was condemned by A.-G. Trevor in Rookwood, at 166. Now there would be an acquittal.

Quarter sessions] A court may discharge a jury which disagrees, though the individual justices did not try the case: Richardson, 8 Cr. A. R. 159, 1913; but it seems that defendant should be present.

Verdicts] If by mistake the jury deliver a wrong verdict (e.g. where it is delivered without the concurrence of all), and it is recorded, and a few minutes elapse before they correct the mistake, the record of the verdict may also be corrected. Parkin, 1 Moo. C. C. 46, 1824. But when the foreman returned guilty of making a false statement,' and the C. C. A. doubted whether the whole jury had considered the intent to defraud: c. q. W. Hunt, 1918. But a verdict delivered in their presence without their dissent, is presumed to be theirs. In Vodden, D. & P. C. C. 229; 6 Cox C. C. 226; 23 L. J. M. C. 7, 1853, a verdict of not guilty' was entered by the clerk purely by mistake, and defendant was discharged; the mistake was immediately corrected, and he was brought back and sentenced. The C. for C. C. R. held that the verdict was properly amended, and insisted on the value of the formula after verdict: And that is the verdict of you all.' Of. Watts v. Brains.

On a trial for murder, and verdict not guilty,' the jury must be asked, 'Do you find manslaughter?' or, at any rate, when the judge has directed them on the latter: Baxter, 9 Cr. A. R. 60, 1913.

General or partial] In the latter, the jury acquit of part of the indictment; hence, when there are several assignments in perjury and a general verdict of guilty, if one assignment was not corroborated the conviction is bad: Gaskell, 1912. When the same act was charged variously in three counts (obtaining (1) goods, (2) credit by false pretences, (3) credit by other fraud), and only one conviction was possible, but a general verdict was found, the C. C. A. assumed that a conviction on the lesser charge (viz. 3) was meant, and reduced the sentence accordingly: D. Johnston, 9 Cr. A. R. 262, 1913.

Special] The jury have a right to find either a general or a special verdict (setting forth all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated it be murder, manslaughter, or no crime at all,' as e.g. in Parkes and Brown, 1796, where the court directed a general verdict). 4 Bl. Comm. 361; 1 Chitty, C. L. 637, 642; Mayor, &c. of Devizes v. Clark, 3 A. & E. 506, 1835: jury insisting on a general verdict; Dudley, 14 Q. B. D. 273, 560; 54 L. J. M. C. 32; 52 L. T. 107; 33 W. R. 347; 15 Cox C. C. 624; 49 J. P. 69, 1884: formerly called 'a verdict at large.' And in a felony, although a judge may make the suggestion, he will not direct the jury to find special facts, and they may, if they think proper, return a general verdict, instead of finding special facts, with a view to raise a question of law: per L. Abinger C.B., Allday, 8 C. & P. 136, 1837. For an instance, see York, 1848. Pollock C.B. doubted whether the mode of putting questions to the jury, and then recording a verdict without taking a direct answer of guilty or not guilty, was correct; and in Davies, 1897, 2 Q. B. 199; 66 L. J. Q. B. 513; 18 Cox C. C. 618: C. C. R., L. Russell C.J. said, ‘it is ordinarily a safer and better course to get the opinion of the jury '-guilty or not guilty: c. q.: Sleep, L. & C. 47, 1861. Such verdicts have often been corrected by the C. C. A. In T. Knight, 1 Cr. A. R. 186, 1908, the questions and answers were: Were the fowls defendant's property? Yes. If so, were they seized by the sheriff as defendant's wife's goods? Yes, under the impression that they were her goods.' (The direction had been that if they answered yes to both questions that meant guilty.') Then the jury were asked: 'Do you find defendant took away the' fowls? 'Yes.' This was entered as 'guilty,' but the C. C. A. thought it was not guilty.' In Muirhead, 1 Cr. A. R. 189; 73 J. P. 31; 25 T. L. R. 88; 53 S. J. 164, 1908, it was asked: 'Did defendant obtain credit by false pretences? Yes. Did he do so with intent to defraud? No': verdict entered as guilty was reversed. On an indictment for false pretences and fraudulent conspiracy, the finding was guilty of conspiracy without fraudulent intent,' explained to mean guilty of conspiracy only' and subsequently guilty of conspiracy with other' defendants to get possession of the premises, but not with a view to avoid payment of rent.' The judge advised the jury to find whether he was guilty of conspiring to help others to defraud; they then found guilty of conspiring with the others, but without false pretences': entered as guilty on the conspiracy count. The C. C. A. had no doubt that the jury meant to find guilty of the conspiracy (but confused offences in different counts). Rawlings, 3 Cr. A. R. 7, 1909. On four counts (forging, uttering, obtaining money, &c. under a cheque) the finding was guilty of participation in the forgery and the proceeds of the forgery, but not of forging or uttering the cheque'; Bosanquet C.Sjt. asked the jury to reconsider this finding; they then found guilty'; the C. C. A. approved, adding