that there was an acquittal of forging and uttering: Hutchinson, 7 Cr. A. R. 19, 1911. So the C. C. A. interpreted as guilty of murder (not manslaughter) the verdict in Philpot, 1912. On a charge of encouraging the defilement of his child, the finding was guilty of negligence (the mother being guilty of criminal neglect on all counts); the judge objected to this form, and guilty of criminal neglect was then found, when the judge asked: Do you mean he

meant

by his neglect caused' the defilement of her?-the foreman assented. The C. C. A. doubted whether the jury 'ever to convict him' of the offence charged; it would have been better to take the words in which they found their verdict: c. q. Chainey, 1914, 1 K. B. 133; 83 L. J. K. B. 306; 23 Cox C. C. 620; 78 J. P. 127; 30 T. L. R. 51; 9 Cr. A. R. 179; so Lomas, p. 368. See also M. Johnson, 1913. When in receiving two of the findings were • the explanation given by defendant may reasonably be true and such explanation is not true in fact,' c. q.: A. J. Norris, 12 Cr. A. R. 156, 1916.

Statutory 'special' verdict] By 46-7 V. 38, 2, (1) Where

it

is given in evidence on the trial. . . that he [the accused] was insane, so as not to be responsible according to law for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission.' By (2) he is a criminal lunatic.' See below and Machardy. It is an acquittal: Felstead, 1914, A. C. 534; 78 J. P. 313; 24 Cox C. C. 243; 10 Cr. A. R. 129.

Judge's power] A judge is not bound to receive the first verdict which the jury give unless the jury insist on having it recorded. He may direct them to reconsider it, and the verdict ultimately returned is the true verdict. F. Smith, 1804; Meaney, 32 L. J. M. C. 24; L. & C. 213; 9 Cox C. C. 231, 1862, when Channell J. refused to accept guilty,' but the jury persisted: c. q.: Dollery, 6 Cr. A. R. 255, 1911; see below. But where, in larceny, the jury being unable to agree, were asked whether they believed the evidence for the prosecution and replied that they did, on which a verdict of guilty was entered, c. q., as the jury had not found animus furandi. Farnborough, 1895, 2 Q. B. 484; 64 L. J. M. C. 270; 18 Cox C. C. 191: C. C. R. In Jameson and Others, Report from Shorthand Notes, pp. 395-6, 1896, the jury answered the categorical questions of the court, and at first declined to find a general verdict, but ultimately did so on the direction of the court.

Inconsistent verdict] The verdict must be consistent: Muirhead, above; Charlton, below. Wilful neglect through ignorance' is a verdict of guilty: Petch, 2 Or. A. R. 71; 25 T. L. R. 401, 1909; cf. Gray, 1891. 'Guilty, but done in ignorance' (viz. trees destroyed); this finding was refused, the jury being told that though defendant thought that the trees were his property, yet if he destroyed them maliciously, he was guilty: c. q. because the C. C. A. could not tell from the shorthand note whether the finding did not intend to negative malice; 'We do not say that in such a case defendant might not be

rightly convicted': Rutter, 1 Cr. A. R. 174; 73 J. P. 12; 25 T. L. R. 73, 1908; cf. Syme, 1911: threat. 'Guilty,' with a recommendation to mercy because we have doubts on various points' is not an inconsistent verdict: Charlton, 6 Cr. A. R. 119, 1911; nor on the ground of defendant's ignorance of the law: Crawshaw, 1860. For findings technically inconsistent, see under Summing Up.

In Crisp, 7 Cr. A. R. 173, 1912, attempted suicide, the first finding was guilty, but of unconscious mind,' explained thus: 'You would not call that insane-we say he is guilty but unconscious of his act at the time'; the final verdict was guilty; the C. C. A. thought that they intended at first to acquit and might have insisted on doing so, but they accepted the judge's invitation to reconsider.

Verdict founded on extraneous matters] Where it appeared that some of the jurors were influenced to convict by the suspicion of one that defendant was an old offender, though there was no evidence thereof, c. q.: J. Newton, 7 Cr. A. R. 214, 1912. So Gaskell, 1912: c. q.

Verdict against the weight of evidence] The C. C. A. is extremely slow to reverse a verdict on the facts; nor will it do so merely because the judge disapproves of the verdict: Gaskell, above; J. Smith, 10 Cr. A. Ř. 232, 1914: conviction affirmed; cf. Berwick, 12 Cr. A. R. 37, 1916. For an instance, see Schrager, 6 Cr. A. R. 253, 1911, where all the magistrates present at Q. S. had reported that they were not satisfied with the conviction; cf. Bennett, 1912, where the C. C. A. thought that the jury 'gave a guess' (though a correct one); in J. Flood, 10 Cr. A. R. 227, 1914, the verdict being for common assault, though the facts pointed to a graver offence, and there being great doubts on other points, c. q. Where the jury found receiving, of which the C. C. A. thought there was no evidence on a charge of stealing (of which there was evidence) and receiving, c. q.: T. Evans, 12 Or. A. R. 8, 1916: strongly condemning a compromise' verdict. A 'special verdict in murder was substituted by the C. C. A. in Gilbert, 84 L. J. K. B. 1424; 112 L. T. 479; 24 Cox C. C. 586; 11 Cr. A. R. 25, 1914.

Disagreement at first] When in such an alleged case the chairman recalled a witness and then' the jury, on being informed that they would be locked up for two hours, eventually agreed,' the C. C. A. thought that the procedure was regular, and the jury were not coerced: Hartleigh, 1 Cr. A. R. 17, 1908.

Recommendation to mercy] is no part of the verdict: Trebilcock; Crawshaw; Charlton, 1911.

Perverse verdict] may, probably, be defined as one that is not only against the weight of evidence, but is altogether against the evidence': Stroud, Jud. Dict.; perhaps Dollery, above, is an instance.

Acquittal] There is no means of reviewing an acquittal: Simpson, &c., Ex p. Smithson, 1914, 1 K. B. 66; 78 J. P. 55; 23 Cox C. C. 739; 83 L. J. K. B. 233; 30 T. L. R. 31: K. B. D. (summary jurisdiction). In Parry, 1837, Park J. said: 'I never intermeddle with an acquittal,' though he asked juries to reconsider convictions of which he disapproved; ' and a judge might do it on an acquittal.' L. Denman O.J.: And in many cases ought.' But after acquittal a judge should

Arraignment on Previous Conviction.

307

not refer to accused's character because there may be other indictments pending: H. Smith, 13 Or. A. R. 9, 1917.

Statement by juror pending trial] It is unwise for an individual juror to talk about the case he is hearing to a non-juror: Syme, 79 J. P. 40; 112 L. T. 136; 30 T. L. R. 691; 10 Cr. A. R. 287, 1914. Q. S. quashed a verdict where this was done during retirement: Fowler, 4 B. & Ald. 273, 1821.

Statement by juror after trial] L. Mansfield refused to hear a juror's affidavit on motion for a new trial (libel) on a point of law, whatever may be the case of his affidavit tending to rectify a mistake in fact: per Aston J., Almon, 5 Burr. 2688, 1770. In Melik, 11 Cr. A. R. 100, 1915, the court refused to consider a letter from a juror to the trial judge; presumably it depends on the nature of the statement whether any action should be taken on it.

Second summing up and verdict after a good verdict] When defendant was convicted and sentenced, and counsel argued that the conviction was bad, whereupon the chairman read the evidence to and asked the jury a specific question on the issue raised, and they convicted, the O. C. R. affirmed and, though it was not necessary to pronounce on the procedure, evidently disapproved of it: Baines, 69 L. J. Q. B. 681; 19 Cox C. C. 524; 64 J. P. 408, 1900.

Arraignment on previous conviction] Pp. 190, 244. By 24-5 V. 96, 116 (larceny, &c.), 'the proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows: (that is to say) the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence,' and after plea or verdict of guilty on subsequent offence, The shall then, and not before, be asked whether he had previously been convicted as alleged in the indictment, and if he answer that he had been so previously convicted the court may proceed to sentence him accordingly, but if he deny that he had been so previously convicted, or stand mute of malice, or will not answer directly to such question, the jury shall then be charged' to inquire whether he has been so convicted. (The earlier part of the s. is set out p. 244 and the later is identical with s. 37, below.) The words 'any offence' are perfectly general, and are not limited to offences under the A. Faulkner v. R., 1905, 2 K. B. 76; 74 L. J. K. B. 562; 69 J. P. 241; 20 Cox C. C. 838: attempt at larceny-not within the A.-where defendant was arraigned on and pleaded not guilty to three counts, the last for a previous conviction; the trial was stopped, and remitted to the next sessions, when he was tried, without a fresh plea or arraignment, on one count and convicted: c. q. by K. B. D. on error. When defendant was not arraigned on the previous conviction the C. C. A. reduced the sentence: Metcalfe, 9 Or. A. R. 9, 1913; the habit of acting on statements

in the calendar' is 'irregular': 29 T. L. R. 512. So precisely 24-5 V. 99, 37, in coinage offences: see Coining and Martin, L. R. 1 O. C. R. 214; 11 Cox C. C. 343; 39 L. J. M. C. 31, 1869, and crimes under the Prevention of Crime A. 1871, by s. 9. When there were three indictments, to the third of which under s. 7 defendant pleaded guilty, but to the first of which he pleaded not guilty, and was tried and convicted on it, the O. C. A. pointed out that to avoid

the jury knowing that he confessed a previous conviction alleged in the third indictment, he might have asked the officer of the court' not to call on him to plead to the third till the first had been tried (and seemed to think that that course might have been adopted): Froggatt. On this analogy two previous convictions for poaching were not proved till after the third, though the A. did not require this: Woodfield, 1887.

Trying another indictment] On an acquittal for stealing from the person, another jury convicted on exactly the same evidence, under 34-5 V. 112, 7, of being in a public place with the intention of committing the felony of which there had been an acquittal (the indictment using the same words as the previous one); the C. C. A. refused to interfere, saying that after the acquittal the judge could suggest that it should make an end of the whole case': F. Miles, 3 Cr. A. R. 15, 1909.

When per incuriam no verdict was taken on two out of three counts and that on the third was quashed, the C. C. A. (ordered (?) or) advised that those two should be tried again, and they were tried and a conviction obtained: B. Myro Smith, 14 Cr. A. R. 83, 1919.

vii.

Conviction-what is] It is not necessary that judgment should have been given on the primary charge. 5 Eliz. 14 (rpd.) made a second conviction for forgery capital. Hale (I. 686) says of it: By conviction, I conceive, is intended not barely a conviction by verdict where no judgment is given'; the party is concluded... by the record of that [the former] conviction.' If defendant either pleaded or was found guilty, that amounts to a conviction, though only a recognisance to come up for judgment was entered into: Miles, 1890; Blaby, 1894, 2 Q. B. 170; 63 L. J. M. C. 133; 18 Cox C. C. 5; 58 J. P. 576; 70 L. T. 89: C. C. R. So a ticket-of-leave' man (under 27-8 V. 47, 4, 1) who is bound over is 'convicted': Rabjohns, 1913, 3 K. B. 171; 82 L. J. K. B. 994; 77 J. P. 435; 23 Cox C. C. 553; 29 T. L. R. 614; 9 Or. A. R. 33. At common law 'conviction' implies a judgment: Burgess v. Boetefeur, 7 Man. & Gr. 481, 1844.

Previous conviction of defendant] Apart from Habitual Criminals the law stands thus:

A. Before verdict on plea of not guilty.

1. On a trial under s. 7 of the Prevention of Crimes A. proof may be given as part of the case of the prosecution, as this is of the gist of the offence: Penfold; but only under this s.

2. If defendant gives evidence of his good character by his crossexamination or his own witnesses, such proof may be given (in felony under 6-7 W. 4, 111, and) in felony or misdemeanour under 24-5 V. 96, 116: Faulkner v. R. (which relied on the words, the proceedings upon any indictment as follows,' with which words in 24-5 V.

99, 37, passed the same day, are identical).

3. If defendant is a witness, proof is regulated by the Criminal Evidence A.: at the most he may be cross-examined on the point.

4. If defendant does not give evidence of any sort of his good character, a previous conviction (as such) cannot be proved. See p. 115.

Previous Conviction of Defendant.

B. After plea or verdict of guilty.

309

1. If the indictment alleges a previous conviction, that issue, unless defendant confesses it, must be tried. The procedure is stated above; defendant must be identified and a certificate of conviction produced. No other proof of any conviction is legal. See Metcalfe, 1913. But in the last quarter of a century a practice has sprung up of so proving one such conviction strictly and then in addition of the same witness or another, sometimes even by hearsay, giving a list of previous convictions; and sometimes not even one such conviction is strictly proved. In the cases where there is no allegation in the indictment, there is obviously no issue before the court.

2. If no previous conviction is so alleged, strictly none can be proved after verdict, and no sentence legally dependent on a previous conviction can be imposed. In Willis, L. R. 1 Ĉ. C. R. 363; 41 L. J. M. C. 102; 12 Cox C. C. 192, 1872, several such convictions were proved but not alleged, and the C. for C. C. R. reduced the sentence of seven years penal servitude-the maximum, under a repealed s., after a previous conviction-to five, saying: 'prisoner was entitled to have his identity tried by a jury, which could not be, as the previous conviction was not upon the record'; following Summers, L. R. 1 C. C. R. 182; 38 L. J. M. C. 62; 12 Cox C. C. 248, 1869. The court, therefore, which always has defendant's 'record' before it during the trial, can only inflict an aggravated sentence permitted by law after a previous conviction, when that is strictly proved; though, within the limits of the maximum legal sentence, it is, perhaps, reasonably influenced by that record': see below.

3. There may be an allegation of a previous conviction in any indictment, but it is useless to insert it unless it has a legal effect.

Evidence on oath after verdict or plea of guilty] This seems to be in the nature of a voire dire. It is either (a) in mitigation of sentence or (b) police evidence.

(a) It seems that defendant may give such evidence, not only from A. Bright, 1916, 2 K. B. 441; 32 T. L. R. 600; 12 Or. A. R. 69, where Darling J. in effect overruled his own judgment to the contrary in Hodgkinson, 64 J. P. 808, 1901, but from C. Wheeler, 86 L. J. K. B. 40; 33 T. L. R. 21; 61 S. J. 100; 12 Cr. A. R. 159, 1916, where defendant had pleaded guilty in summary jurisdiction, had then given such evidence in mitigation of punishment and had been convicted of perjury in respect thereof: the C. C. A. held that he was 'lawfully sworn within 1-2 G. 5, 6, 1 (1), describing the effect of the Criminal Ev. A. thus: 'Wherever the defence can be heard, the prisoner can be a witness on his own behalf.' The law must be the same on the trial of an indictment, but it is difficult to see how an issue between defendant and the prosecution is to be tried at that stage: apparently in the form of an indictment for perjury. Cf. B. 1, above.

In Bright defendant pleaded guilty to an offence under the Defence of the Realm Regulations, 1914, and was sentenced to p. s. for life: had the court' found that there was an intent to assist the enemy the sentence might have been of death. There was no indictment of intent, but two soldiers who had been in the cells with defendant gave evidence that he had suggested mutiny to them. The judge did not doubt that the jury would have found the intent. The C. C. A. thought that he was right in hearing that evidence to decide on the degree of