custody the person convicted is; and the said certificate is a CH. XXIV. sufficient warrant to all persons for the execution of the judgment or for the discharge of the prisoner from further imprisonment, as the case may be: And where necessary, the next court of oyer and terminer and gaol delivery or sessions of the peace must vacate the recognizance of bail, if any, and give judgment as may be directed.

The Court for Crown Cases Reserved may send back the case or certificate for amendment, and after the same has been amended will give judgment. (11 & 12 Vict, c. 78, s. 4.)

The J. Acts do not affect the practice and procedure with respect to crown cases reserved.

PART VI.

When granted.

CHAPTER XXV.

NEW TRIAL.

A NEW trial will not be granted in a case of felony (Att.Gen. of New South Wales v. Bertrand, L. R. 1 P. C. 520; 36 L. J. P. C. 51). A motion for a new trial can only be made where the indictment has been preferred for a misdemeanor in the Q. B. division of the High Court of Justice, or has been removed there by certiorari. A new trial after conviction may be moved for, on the ground that the prosecutor has omitted to give due notice of trial, or that the verdict was contrary to the evidence, or to the direction of the judge, or for the improper reception or rejection of evidence, or other mistake or misdirection of the judge, or for any gross misbehaviour of the jury among themselves, or for surprise, or for any other cause where it appears to the court that a new trial will further the ends of justice. (2 Hawk. P. C. c. 4, s. 12, R. v. Fowler, 4 B. & Ald. 273.) In general after an acquittal of the defendant, a new trial will not be granted (a). (R. v. Mann, 4 M. & Sel., 337.) In cases where the object of the proceeding substantially is to try a civil right, and the verdict would bind the right, as in cases of indictments for non-repair of a highway or a bridge, a new trial may be had after verdict for the defendant, if evidence has been improperly received, or there has been misdirection, or a verdict contrary to the evidence. (R. v. Chorley, 12 Q. B. 515; R. v. Cricklade, 3 E. & B. 947 n; R. v. Russell, 3 E. & B. 942; 23 L. J. M. C. 173.) In cases of treason and felony, as well as misdemeanor, where there has been a mis-trial, a venire de novo will be awarded and a fresh trial had thereon; as where a challenge has been improperly disallowed. (Witham v. Lewis, 1 Wils. 48; R. v. Yeadon, L. & C. 81; 31 L. J. M. C. 70.)

It is a rule that where there is only one defendant, he must be present in court when a motion is made for a new

(a) According to R. v. Duncan, 14 Cox C. C. 571, a new trial can not be granted after an acquittal where the defendant has been in peril of imprisonment,-this was an indictment for obstructing a highway.

trial (b). And where several defendants are convicted CH. XXV. upon an indictment for a misdemeanor removed into the Queen's Bench Division all must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance (c). But where a defendant has been found guilty of an offence, e.g., a nuisance, for which he is not liable to personal punishment but only to a fine, it is not necessary that he should be present in court when a motion is made for a new trial (d). Before the Judicature_Acts, when it was intended to move the Court of Queen's Bench for a new trial in a criminal case, either the motion should be made within the first 4 days of term, or during those days an intimation must have been given to the court that counsel was prepared to make the motion (e). As to the practice on moving for a new trial in a criminal case, see Corner's Crown Practice.

The decision of the Q. B. Division is final.

(b) R. v. Caudwell, 17 Q. B. 503; 21 L. J. M. C. 48; Howard v. Reg. 11 Law T. 629.

(c) Rex v. Teal, 11 East, 307.

(d) Reg. v. Parkinson, 2 Den. C. C. 459, 21 L. J. M. C. 38, note (r). (e) Reg. v. Newman, 1 E. & B. 268, 22 L. J. Q. B. 156.

PART VI.

CHAPTER XXVI.

WRIT OF ERROR (a).

Definition

of.

A WRIT of error is an original writ (which before the J. A. issued from the common law side of the Court of Chancery), and is directed to the judge or judges of an inferior court, requiring him or them to send the record and proceedings of the indictment, inquisition or information on which judgment has been pronounced, and in which

(a) The following is taken from p. 37, of the report made by the Criminal Code Commissioners :-"Proceedings in error are proceedings. by which the Queen's Bench Division of the High Court is called upon to reverse a judgment on the ground that error appears on the record,- -a writ of error being granted only on the attorney general's fiat. An appeal lies ultimately to the House of Lords. The record, however, is so drawn up that many matters by which a prisoner might be prejudiced, indeed the matters by which he is most likely to be prejudiced, would not appear upon it: for instance, the improper reception or rejection of evidence, or a misdirection by the judge would not appear upon the record. This remedy therefore applies only to questions of law and only to that very small number of legal questions which concern the regularity of the proceedings themselves, e.g., an alleged irregularity in impannelling the jury (Mansell v. R.), or in discharging a jury (Winsor v. R.), or a defect appearing upon the face of the indictment. (Bradlaugh v. R.) The result is that the remedy by writ of error is confined to a very small number of cases of rare occurence. It must be added that the procedure in writs of error is extremely technical. It is necessary in such cases to draw up the record, and this is an extremely formal and prolix document, though the materials from which it is complied are simply short notes in a rough minute book kept by the officer of the court. When the record is drawn up, the Court of Appeal cannot look beyond it, but is tied down to the matters expressly entered in it. The proceedings on special verdicts and demurrers to evidence have practically fallen into disuse."

error is alleged, to the court authorized to review the same, CH. XXVI. and is in the nature of a commission from the Queen to the judges of the superior court, by which they are authorized to examine the record upon which judgment was given in the inferior court, and on such examination and a consideration of the errors assigned, to affirm or reverse the judgment according to law.

lies.

A writ of error lies from all inferior criminal jurisdictions When it to the Q.B. division of the High Court of Justice, for every substantial defect not cured by verdict, appearing on the face of the record, for which the indictment might have been quashed, or which would have been fatal on demurrer, or in arrest of judgment. We have already noticed when formal defects must be taken advantage of and what defects are cured by verdict (ante). If in an indictment for burglary it appears that the prisoner broke and entered the dwelling house with intent to commit a trespass only, and not a felony error will lie (R. v. Powell, 2 Den. 403); so, also, where a challenge to the array is improperly overruled, error will lie. (O'Connell v. R. 11 C. & Fin. 155.) Error also may be assigned on a special verdict, where judgment has been. passed on the defendant. (2 Ld. Raym. 1514; R. v. Chadwick, 11 Q. B. 205; 17 L. J. M. C. 33.) If a general judgment be given on the whole of an indictment containing several counts, one of which is bad in substance (O'Connell v. R. 11 C. & Fin. 155); or if an indictment be preferred at the quarter sessions for an offence not there cognizable, and the defendant be convicted and judgment passed upon him, the proceedings will be reversed on error. (4 Mod. 379.)

writ of

error

Before bringing a writ of error in a case of felony or mis- Proceeddemeanor application must be made to the attorney-general ings on for his fiat; and for this purpose a certificate signed by the prisoner's counsel, accompanied by an affidavit if error in fact be alleged, should be submitted to the attorney-general. A præcipe, together with the attorney-general's fiat, must be taken to the proper office before the writ of error can be issued. Upon delivering the writ to the clerk of the peace or other officer of the court to which it is directed, he will make up the record, and make out the return. When the writ is addressed to the justices in quarter sessions the return is signed and sealed by the chairman. The record and proceedings are returned to the Court of Error. If the whole record be not certified, or not truly certified, the plaintiff in error, may allege a diminution of the record, showing that part of the record has been omitted and remains in the inferior court not certified, and a certiorari will be awarded