"And the said John Styles forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, saith, that he is not guilty thereof." And on the part of the prosecution the similiter is then added: "And John Brown (the clerk of the arraigns, or clerk of the peace) who prosecutes for our said lady the Queen in this behalf, doth the like. Therefore let a jury

come," &c. (z).

(2) For other ceremonies formerly observed, and the origin of the term "culprit," &c., v. 4 Bl. 339, or 4 St. Bl. 404, n.

CHAPTER XII.

DEMURRER.

A DEMURRER is an objection on the part of the defen- Demurrer.
dant who admits the facts alleged in the indictment to
be true, but insists that they do not in point of law
amount to the crime with which he is charged. Thus,
if a person is indicted for feloniously stealing goods
which are not the subject of larceny at common law or
by statute, he may demur to the indictment, denying
it to be a felony. It is for the court, on hearing the
arguments, to decide whether the objection be good.
The following is the form of a demurrer :-

"And the said John Styles in his own proper person
cometh into court here, and, having heard the
said indictment (or information) read, saith,
that the said indictment (or information) and
the matters therein contained, in manner and
form as the same are above stated and set
forth, are not sufficient in law, and that he the
said J. S. is not bound by the law of the land
to answer the same; and this he is ready to
verify: wherefore, for want of a sufficient
indictment (or information) in this behalf, the
said J. S. prays judgment, and that by the court
he may be dismissed and discharged from the
said premises in the said indictment (or in-
formation) specified."

demurrer.

If on the demurrer judgment is given for the defen- Judgment on dant, it is to the effect that he be discharged, provided that the objection be a substantial one; that the indictment be quashed, if it is a merely formal one. If judgment is given against the defendant, in felonies the judgment is final; in misdemeanors it is final,

Demurrers, why seldom resorted to.

Demurrer in abatement.

unless the court should afterwards permit the defendant to plead over (a).

Demurrers in criminal cases seldom occur in practice. Not only is there the risk of having final judgment against the defendant, but the same objections may be brought forward in other and safer ways. In cases of defects in substance apparent on the face of the indictment, generally the defendant may, instead of demurring, plead not guilty, and then, if convicted, move in arrest of judgment. Thus he has a double chance of getting off, first on the facts of the case, then on the point of law. But this course cannot be taken when the defect in the indictment is cured by verdict (b).

Formerly there was another kind of demurrer besides the general demurrer to which we have been referring, namely, a special demurrer, usually termed a " demurrer in abatement." This was founded on some formal defect in the indictment, whereas a general demurrer is founded on some substantial defect. But now no demurrer lies in respect of the defects specified in the 24th section of 14 & 15 Vict. c. 100 (c); and demurrers for other formal defects are practically rendered useless by sect. 25 of the same statute, which provides that every objection to an indictment for any formal defect apparent on the face thereof shall be taken by demurrer or motion to quash the indictment before the jury are sworn, and not afterwards; and the court before which such objection is taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particulars, and thereupon the trial will proceed as if no such defect had appeared.

(a) This seems to be the state of the law as settled in R. v. Faderman, 1 Den. 569; 3 C. & K. 353; though some still contend that in felonies, after judgment against the defendant, he may still plead not guilty; and a defendant has been allowed to demur and plead not guilty at the same time. (b) v. 7 Geo. 4, c. 64, s. 21. Heymann v. R., L. R. 8 Q. B. 105. R. v. Goldsmith, L. R. 2 C. C. R. 74; 42 L. J. (M.C.) 94.

(c) v. p. 328.

TRIAL.

of trial.

Ir will not be necessary to describe the various modes Obsolete forms of trial which have long been abolished, namely, the ordeal, the corsned, trial by battle (d). The last of these was suppressed by 59 Geo. 3, c. 46, in consequence of a case (e) in which the person accused demanded the settlement of the question by a fight.

The only modes of trial which now remain are:

A. Trial of peers in the Court of Parliament or the Court of the Lord High Steward, of which enough has been said above.

B. Trial by jury (or by the country—per patriam)— the trial by his peers which every Englishman is entitled to claim (f). This of course is the ordinary mode of trial, both at the sessions, the assizes, the Central Criminal Court, and the Queen's Bench Division. It is this with which we have now to deal, taking the various steps in their order.

(d) A full account will be found in the various editions of Blackstone, Hallam's Middle Ages, Reeves's History of English Law, and the other works dealing with the history of the law.

(e) Ashford v. Thornton, 1 B. & Ald. 405.

(f) Nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ.-Magna Charta.

The existing forms.

Petty jurors, who are liable.

CHAPTER XIII.

THE PETTY JURY.

WHEN the prisoner has put himself upon the country, the petty jurors are called by the clerk to answer to The list which is thus called over is the panel returned by the sheriff.

their names.

Who are liable to serve on the petty jury, and how are they returned? The law on this subject is contained chiefly in two statutes, the Jury Act, 1826 (g), and the Juries Act, 1870 (h). The qualification of common jurors is the following:-Every man between the ages of twenty-one and sixty, residing in any county in England, who has in his own name, or in trust for him, within the same county, £10 by the year above reprises in lands or tenements, or in rents therefrom, or in such lands and rents taken together, in fee simple, fee tail, or for the life of himself or some other person or lands to the value of £20 a year held by lease for twenty-one years or longer, or for a term of years determinable on any life or lives; or who, being a householder, is rated or assessed to the poorrate or to the inhabited house duty, in Middlesex to a value of not less than £30, or in any other county not less than £20; or who occupies a house containing not less than fifteen windows-is qualified to serve on petty juries at the courts at Westminster, in the counties palatine, and at the assizes, and also at both the grand and petty juries at the county

(g) 6 Geo. 4, c. 50.
(h) 33 & 34 Vict, c. 77.