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acquitted, though the verdict should appear to be against evidence. The motion for a new trial is made upon affidavits of the circumstances. The defendant may, at any time between conviction and sentence, but not afterwards, move the court in arrest of judgment. This motion must be grounded on objections which appear upon the face of the record itself; therefore no defect in evidence, or improper conduct at the trial, will be sufficient. Even if the defendant omits to make any motion in arrest of judgment, the court may, if they are satisfied that the defendant has not been convicted of an offence in law, arrest the judgment. If the judgment be arrested, all the proceedings are set aside, and a judgment of acquittal given. This is no bar, however, to a fresh indictment.

CHAPTER XIX.

OF JUDGMENT.

SENTENCE, in capital cases, is usually given immediately after the conviction; and it may be observed that, in all capital cases except high treason, the court before which the offender is committed is authorised to abstain from pronouncing judgment of death, if it shall be of opinion that the offender is a fit subject to be recommended for the royal mercy. Before judgment is pronounced, in such cases, upon the prisoner, the crier makes a proclamation, commanding all manner of persons

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to keep silence whilst sentence of death is passed upon the prisoner at the bar, upon pain of imprisonment. It is necessary that the prisoner should be first asked if he has anything to say why the judgment of the court should not be passed upon him; and it is necessary that this should appear upon the face of the record. It is not to be expected that, in a small work of this kind, we can enter into the various punishments inflicted by the law; and we can only refer the reader who may want further information upon this subject to Mr. Archbold's or Mr. Russell's excellent works upon Criminal Law.

When the defendant is acquitted upon the merits, the proper entry upon the record is

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Whereupon all and singular the premises being seen and fully understood by the court of our lady the Queen now here, it is considered and adjudged by the said court that the said defendant be discharged of the premises, and do depart hence without delay."

When the judgment is pronounced, it should be entered upon the record. The record so made up, in case of felony, states the session of Oyer and Terminer, the commission of the judges, the presentment of the grand jury by name, the indictment, the delivery of the indictment into court, the arraignment, the plea, the issue, the award of the jury process, the verdict, the asking the prisoner why sentence should not be passed on him, and the judgment passed by the judges.

CHAPTER XX.

OF WRIT OF ERROR.

A WRIT of error to reverse a judgment lies from all inferior jurisdictions to the Queen's Bench, and from thence to the House of Lords. Lord Mansfield, in speaking of writs of error, says, that until the reign of Queen Anne, a writ of error, in any criminal case, was held to be merely ex gratia. It was then laid down, that writs of error, in criminal cases, were not grantable ex debito justitæ, but ex gratia regis; and that, in such a case, a man ought to make application to the king, and he will refer to his counsel, and if they certify that there is cause, he will grant a writ of error.

In the third year of the reign of Anne, it was resolved by ten of the judges, that in every case under treason and felony, a writ of error was not merely a matter of favour, but of right, and ought to be granted. But even in misdemeanors, this is only to be understood to mean where there is probable cause of error. It does not issue as a matter of course, but under the fiat of the attorney-general. If probable grounds are laid before the attorneygeneral, and he improperly refuse to issue his fiat, the court will compel him so to do.

A writ of error lies, for all defects, upon the face of the indictment, and which are not cured by verdict, for any irregularity in the awarding of the jury

process, defect in the caption, for irregularity in the verdict or judgment, for the omission of the demand of the defendant what he has to say why the court should not proceed to judgment against him. In cases where a writ of error is allowed for any mis-awarding of the jury process, the court should direct the sessions to award a venire de novo.

During the time the writ is pending, in treason and felony, the prisoner remains in custody. In misdemeanors, however, he may be admitted to bail. In cases of wilful delay and neglect to prosecute the writ, the court will order it to be quashed.

CHAPTER XXI.

RECORD OF CONVICTION AND JUDGMENT

FOR MURDER.

HAVING now reviewed the proceedings from arrest to judgment, it may be as well to present the reader with a view of those same proceedings as they would appear upon a record when made up. We have taken a case in which the prisoner is supposed to have been tried and convicted of murder at the assizes, the record of which trial and conviction would be as follows:

Yorkshire to wit.

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"Be it remembered, that at the General Session of our lady the Queen, of Oyer and Terminer, holden at the castle of York, in and for the said county of York, on Friday, the twelfth

day of March, in the fifteenth year of the reign of the lady Victoria, Queen of Great Britain, before Sir Cresswell Cresswell, one of the justices of our said lady the Queen, of her Court of Common Bench, and others their fellows justices of our said lady the Queen, assigned by letters patent of our said lady the Queen, under her great seal of Great Britain, made to them the aforesaid justices and others, and any two or more of them, whereof one of them, the said Sir Cresswell Cresswell, and Sir Thomas Noon Talfourd, our lady the Queen would have to be one to inquire, by the oath of good and lawful men of the county aforesaid, by whom the truth of the matter might be the better known, and by other ways, methods, and means, whereby they could or might the better know, as well within the liberties as without, more fully the truth of all treasons, insurrections, rebellions, counterfeitings, clippings, wastings, false coinings, and other falsities of the moneys of Great Britain, and of other kingdoms or dominions whatsoever; and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful utterings of words, unlawful assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, concealments, maintenances, oppressions, champerties, deceits, and all other misdeeds, offences, and injuries whatsoever; and also the accessaries of the same within the county aforesaid, as well within liberties as without, by whomsoever and howsoever done,

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