(b) that he has on such a previous conviction been found to be a habitual criminal and sentenced to preventive detention.

(4) In the proceedings on the indictment the offender shall in the first instance be arraigned on so much only of the indictment as charges the crime and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to being a habitual criminal, be charged to inquire whether he is a habitual criminal and in that case it shall not be necessary to swear the jury again:

Provided that a charge of being a habitual criminal shall not be inserted in an indictment

(a) without the consent of the Director of Public Prosecutions; and (b) unless not less than seven days' notice has been given to the proper officer of the court by which the offender is to be tried and to the offender that it is intended to insert such a charge;

and the notice to the offender shall specify the previous convictions and the other grounds upon which it is intended to found the charge.

(5) Without prejudice to any right of the accused to tender evidence as to his character and repute, evidence of character and repute may, if the court thinks fit, be admitted as evidence on the question whether the accused is or is not leading persistently a dishonest or criminal life.'

By (6), 'crime' in this s. means what it does in 34-5 V. 112, 20, that is to say

any felony,

uttering false or counterfeit coin,

possessing counterfeit gold or silver coin,

obtaining goods or money by false pretences,

conspiracy to defraud,

being armed by night with intent to break or enter, or any other offence under (now) s. 28 of Larceny A. 1916.

Indictment] Though not strictly necessary it is better to aver that prisoner is a habitual criminal: C. Smith, 1909.

Trial] must immediately follow that of the primary charge: Jennings, 4 Cr. A. R. 120; 74 J. P. 213; 26 T. L. R. 266, 1910. Two persons indicted jointly must not be tried jointly on this allegation: G. Blake, 4 Cr. A. R. 275; 74 J. P. 336, 1910; but this is not an absolute rule: E. Taylor, &c., 5 Cr. A. R. 168, 1910; cf. Chatway, ib. 151. Sentence on the primary charge should not be given till after the trial of this charge: A. Walker, 5 Cr. A. R. 231; 27 T. L. R. 51, 1910: sentence reduced. See A. Harding, 1920 (15 Cr. A. R.).

Jury] may be sworn as in felony or misdemeanour: E. Turner, 1909.

Age sixteen] There must be some evidence of age in all cases where the jury would not be prepared to act on their own view without evidence': E. Turner, 1909. As a rule persons under thirty are not indicted as habitual criminals: J. Saunders, 7 Cr. A. R. 271, 1912.

Three convictions] Convictions on three separate indictments for similar offences all committed within a few days (and tried at or about the same time) are not, perhaps, within this s.: Raybould. The three convictions may be enough evidence in a proper case': Waller,

'Dishonest or Criminal Life.'

699

1909; J. Kelly, 3 Cr. A. R. 248; 74 J. P. 167; 26 T. L. R. 196, 1909. That is especially so 'where the crimes are, so to say, professional, as in coining cases: per Darling J., Baggott, 4 Cr. A. R. 67; 74 J. P. 213; 26 T. L. R. 266, 1910; shop-breaking is not of this nature. 'Much depends on the nature of the offences; where an offence requires no preparation or deliberation and there was no evidence of a system, probably the three convictions would not, without other evidence, be sufficient. But when they require deliberate and systematic planning and are repeated at the earliest opportunity after release, they may be sufficient material for a jury to consider as evidence of an intention to live by crime alone': Everitt, 6 Cr. A. R. 267; 27 T. L. R. 570, 1911.

See Proof of Previous Conviction and Other Grounds, below.

Consent of the Director of Public Prosecutions] For proof, see under Documentary Evidence.

'Leading persistently,' &c.] This is the more important part of the definition': Raybould. The important thing' is to bring the evidence' down to date': E. Turner, 1909. Such evidence of accused's life before the last conviction is not necessarily inadmissible; if, for example, he is now doing precisely' what he used to do when beyond doubt he was a habitual criminal,' it is admissible; in each case it depends on the facts: Ib.

Under this head the nature of the previous convictions must be carefully looked at: Baggott, above, where c. q. as habitual criminal. The time to be considered is the date of the primary offence: Baggott. Substantially the evidence must be brought down to the last arrest: Brummitt, 1910; it need not stop at the date of the crime primarily charged: E. J. Wood, 12 Cr. A. R. 29, 1916. The onus of proof is on the crown; where the direction was that accused must show he was leading an honest life, c. q.: A. Stewart, 1910. See Onus, below. Where there was no reference at all in the notice to the last interval of freedom, but evidence of crimes was given, c. q.: J. H. Wilson, 28 T. L. R. 561; 8 Cr. A. R. 20, 1912.

The jury must be expressly directed to evidence tending to prove honesty of purpose: G. Sullivan (ii): c. q. in view of interval of seven weeks. The evidence need not be confined to the last interval of freedom: J. H. Wilson, 1912.

Interval of release from prison] Where this was six days, about which there was no evidence, the court refused to interfere: H. Foster, 3 Cr. A. R. 173, 1909. But prisoner's conduct during this interval is so important on the question of persistence that the jury must be pointedly directed thereon: J. Kelly, 1909: c. as habitual criminal q. Where the interval was from Feb. 16th to Oct. 12th and there was no evidence about it except prisoner's statement, but (apparently) though the notice did not specify this period some questions were put about it, the C. C. A., being satisfied that there was no 'miscarriage of justice,' applied the proviso to s. 4 (1) of the C. A. Act: H. Rowland, 3 Cr. A. R. 277; 102 L. T. 112, 1909. Mere shortness of interval is no bar to a conviction: Condon, 4 Cr. A. R. 109, 1910: six and a half weeks; cf. Everitt, 1911, above. 'Where there has been a substantial interval, added to the fact that the prisoner has done work,' the court must draw attention to it': G. Wells, 5 Cr. A. R. 33, 1910.

In J. Heard, 22 Cox C. C. 725; 76 J. P. 232; 28 T. L. R. 154;

6

7 Cr. A. R. 80, 1911, nine months, though a considerable interval' (as is six), did not lead to quashing, because the primary crime showed skill and plan, and there was scant evidence of work done. In C. Mitchell, 76 J. P. 423; 23 Cox C. C. 284; 28 T. L. R. 484; 7 Cr. A. R. 283, 1912, the interval was five and a half months, and though prisoner's record was as bad as it could possibly be,' there was no evidence against him during that time except failure to report to the police: c. q. and primary sentence reduced. Where the interval was thirteen months and a considerable amount of work was done, but the primary charge, horse-stealing, and other facts pointed to a relapse into criminal life,' a conviction was upheld: F. Williams, 8 Cr. A. R. 49, 1912: cases of sudden temptation' do not prove the charge.

Proof of honest occupation] To be a habitual criminal it is not necessary that the man should never do anything honest': W. J. Hadley, 4 Cr. A. R. 39, 1909; so Jennings, 1910. The work may be a mere cloak: Hayden, 6 Cr. A. R. 214, 1910. In G. Martin, 5 Cr. A. R. 31, 1910, the interval was fourteen months and some work was done, but this is not conclusive.' Whether the work is an evasion or not is for the jury: J. Martin, 7 Cr. A. R. 227, 1912. Cf. Keane and Watson, 8 Cr. A. R. 12, 1912: six months' interval. In a two months' interval there was evidence of six weeks' work, but also in that period of association with ex-convicts; conviction upheld: J. Smith, 8 Cr. A. R. 150, 1913. An isolated act of theft in the course of regular work is not enough: Dorrington. Defendant does not lose the benefit of this plea because it refers to a time when he was evading arrest: A. Brown, 78 J. P. 79; 23 Cox C. C. 615; 30 T. L. R. 40; 9 Cr. A. R. 161: c. q. Whether this kind of evidence negatives habitual criminality is a question of fact, not of law: J. Bennett, 1913. For inability to work, see Stockdale.

Evidence of character and repute] This may include convictions other than and not so strictly proved as the three statutory: G. Franklin, 74 J. P. 24; 3 Cr. A. R. 48, 1909, where, after notice, nine convictions were proved only by the production of a register by the police, Alverstone L.C.J. saying that sub-s. 10 (5) was intended to permit this as otherwise the A. would be unworkable. A conviction abroad (France) may be proved: J. Heard, above. A witness for the crown has a right, in view of these words, to express an opinion favourable to prisoner: G. Sullivan (ii). Summary convictions are admissible under this head: P. Summers, 10 Cr. A. R. 11, 1914. So is evidence of warrants issued against accused since his last release, provided there is a direction that guilt is not assumed: H. Macdonald, 12 Cr. A. R. 127, 1916. But where notice was given of the issue of one warrant and evidence of others was also given, though prisoner had been acquitted of all the charges, and it was also proved that since his arrest a certain kind of robbery had ceased, c. as habitual criminal q. C. Russell, 12 Cr. A. R. 27, 1917; even if such evidence was of character and repute' notice ought to have been given.

Previous conviction as habitual criminal] displaces the requirements of 8 E. 7, 59, 10 (2) (b).

Notice] See under Documentary Evidence. To the offender.' Secondary evidence of the contents may be given without any notice to produce, but there must be proof that a proper statutory notice was

given before the three convictions can be proved: E. Turner, 1909. To the officer of the court.' This is presumed unless challenged: Westwood, 1913. Objections to sufficiency of time must be taken at the trial: J. Weston, 3 Cr. A. R. 53, 1909; E. Jones, 5 Cr. A. R. 29, 1910. This apparently does not apply to the substance of the notice: J. H. Wilson, 1912, where there was no objection, but c. q. The notice must be as specific as possible: E. J. Wood, 1916. Apparently where it is possible it should cover the evidence of 'character and repute': C. Russell, 1917, above.

If a trial is postponed till the next assize the notice is good: Conduit, 11 Cr. A. R. 38, 1914. Surplusage does not invalidate a notice: Webber, below.

Seven days] clear: Conduit. Where there was one day's notice of one previous conviction the court applied the proviso to s. 4 (1) of C. A. A. 1907: E. Jones, above.

Other grounds] The notice need not specify' the evidence of 'dishonest life,' but the ground on which it is intended to found the charge must be given in a real and substantial form': E. Turner, 1909. It need not refer to other grounds' if the prosecution only relies on the previous convictions: Waller, 1909.

Other convictions may be proved before verdict: A. Stewart, 4 Cr. A. R. 175; 74 J. P. 246, 1910: c. q.; Brummitt, 4 Cr. A. R. 192, 1910. The evidence of these other need not be so strict as of the three (Stewart in 4 Cr. A. R. is wrong): Chatway, 5 Cr. A. R. 155, 1910; and see G. Franklin; P. Summers. This point seems finally so settled by Westwood, 77 J. P. 379; 8 Cr. A. R. 273, 1913, where proviso of C. A. A. was applied. If this evidence is given without notice the conviction will be quashed: F. Fawcett, 5 Cr. A. R. 91, 115; 74 J. P. 441, 1910, where prisoner was notified that between certain dates he was given various opportunities of earning an honest living; nevertheless you returned to your criminal. . . life'; held not to let in evidence that he was an associate of thieves': see below. The same evidence when no other grounds' were specified led to quashing: J. Moran, 5 Cr. A. R. 219, 1910, where the judge read to the jury a list of convictions, none of which was proved: c. as habitual criminal q.: Culliford, 6 Cr. A. R. 142; 75 J. P. 232, 1910. Fawcett and Moran were followed in Maxfield, 7 Cr. A. R. 230; 28 T. L. R. 404, 1912, where, without notice, evidence was given of association with a convicted coiner (interval of twenty months and evidence of work done); and in P. Neilson, 78 J. P. 158; 23 Cox C. C. 685; 30 T. L. R. 125; 9 Cr. A. R. 218, 1913. Evidence of convictions and charges not included in the notice, especially of those in. the last interval of liberty, led to quashing: G. Fowler, 77 J. P. 379; 29 T. L. R. 422; 8 Cr. A. R. 240, 1913; such inadmissible evidence is not within the proviso to s. 4 (1) of C. A. A. See, however, Heron, 9 Cr. A. R. 29, 1913. A previous conviction as a habitual criminal, if quashed, should not be given in evidence: G. Sullivan (ii).

P.

Associating with criminals] See Other Grounds,' above. Summers is, perhaps, an authority that the names of the alleged associates (and dates and places connected) should be given in reasonable time, and that an adjournment should be granted if accused asks for it to meet the allegations. The notice and the evidence must refer

to the last interval of freedom, and if they do not the conviction will be quashed: Stockdale, 11 Cr. A. R. 108, 1915.

Onus] of proof is on the crown; that accused must show that he was leading an honest life is a misdirection: A. Stewart, 1910: c. q. So J. Young, 78 J. P. 80; 23 Cox C. C. 624; 30 T. L. R. 69; 9 Cr. A. R. 185, 1913. There cannot be a conviction merely because he gives no account of his last interval of liberty: Webber, 1913, 1 K. B. 33; 23 Cox C. C. 323; 76 J. P. 471; 8 Cr. A. R. 59, 1912; consequently it is a misdirection to ask the jury to consider whether accused has made up his mind to reform. But the mere fact that he has given no account of his last liberty (five months) does not prevent his conviction: G. Wilson, 12 Cr. A. R. 95, 1916.

Evidence for prisoner] The probation officer, if there is one, should be called: G. Sullivan, 7 Cr. A. R. 269, 1912: c. q.

Sentence] See Primary Sentence under Term of Sentence. Sentence on the primary charge should not be pronounced before the trial of the second charge: E. Turner, 1909. Where prisoners are young preventive detention should begin as soon as possible: Taylor, &c., 1910: sentences of p. s. reduced to three years'. The usual period of preventive detention is five years: reduced to that from ten in H. Hamilton, 9 Cr. A. R. 89, 1913; Loftus, 12 Cr. A. R. 238, 1917; but there is no rule of law: Crowley, 83 L. J. K. B. 298; 24 Cox C. C. 13; 30 T. L. R. 94; 9 Cr. A. R. 200, 203, 1913, where ten was upheld; G. Sullivan, ib. But the maximum should not be imposed except for specific reason: Beavan, 12 Cr. A. R. 18, 1916: ten reduced to five. J. Bennett, 9 Cr. A. R. 225, 1913, is an instance of no preventive detention being imposed. Cf. J. Thompson, 1914.

Where the only evidence of habitual criminality is a previous conviction therefor, it seems that great caution should be exercised: G. Harris, 13 Cr. A. R. 190, 1918: c. q. and primary sentence reduced.

HABITUAL DRUNKENNESS.

See Drunkenness.

HALL MARKS, FORGERY OF.
See under Forgery.

HARES, LARCENY OF.

See under Animals and Game.