is obvious that there is no more evidence than in the first

case.

If a prisoner indicted for any felony, or the offense of uttering false or counterfeit coin, or of possessing counterfeit gold or silver coin, or of obtaining goods or money by false pretenses, or of conspiracy to defraud, or of any misdemeanor under 24 and 25 Vict., c. 96, § 58,(b) has been found guilty, then, if he has been previously convicted of any of the above crimes, he is asked whether he has been so previously convicted, the previous conviction being also alleged in the indictment. If he admits it, the court proceeds to sentence him. But if he denies it, or will not answer, the jury are then, without being again sworn, charged to inquire concerning such previous conviction; the point to be established being the identification of the accused with the person so convicted. (c) The only case in which evidence of a previous conviction may be given before the subsequent conviction is found is when the prisoner gives evidence of character. In this case the jury are to inquire of the previous conviction and the subsequent offense at the same time.(d)

(b) v. p. 243.

(c) 34 and 35 Vict., c. 112, 2? 18, 20; see also 24 and 25 Vict., c. 96, 116; c. 97, 37.

(d) Arch. 231. Though the previous conviction does not fall within the scope of the above provision, the judge has before him a record of it, and all other occasions on which the accused has been before a criminal court. See p. 182, as to evidence of certain previous convic tions on an indictment for receiving.

CHAPTER XIX.

JUDGMENT.

BEFORE judgment, in cases of treason and felony, the prisoner is supposed to be asked whether he has any thing to say why the court should not proceed to pass sentence upon him. But, in actual practice, this is not always done.

The interval between conviction and judgment is the time for the defendant to move the court in arrest of judg ment. The motion must be grounded on some defect apparent on the face of the record, and not on some irregularity in the proceedings. The objection must be a substantial one, such as want of sufficient certainty in the indictment as to the statement of facts, etc. But judgment will not be arrested, if the defect has been amended during the trial, or is such an one as is aided by verdict. The court itself will arrest judgment, if it is satisfied that the defendant has not been found guilty of any offense in law. If judgment is arrested, the proceedings are set aside, no judgment is given, and the prisoner is discharged. But, unlike an ordinary acquittal, the defendant may be indicted again on the same facts.

[In Ohio, a motion in arrest of judgment may be granted, if the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; or if the facts stated in the indictment do not constitute an offense.(1) The provision in the statute of Indiana is the same. (2) In Kentucky, the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the

(1) 66 Ohio L. 359.

(2) Rev. Stat. (1876), vol. 2, pp. 409, 410.

court.(1) In Iowa, judgment may be arrested upon any ground which would have been ground of demurrer; and also when, upon the whole record, no legal judgment can be pronounced.(2) In Kentucky, Indiana, and Iowa, the court may, without motion by defendant, arrest judgment upon the same grounds. In all four states, if the court is of opinion, upon the evidence, that he is guilty of an of fense, the defendant shall be held for further indictment.

In Ohio, motion in arrest of judgment can not be made after three days after the verdict is rendered. In Kentucky and Iowa, the motion can be made at any time before judgment, or after judgment at the same term.]

Judgment may be postponed, if the court wishes to reserve any point of law for the consideration of the court for crown cases reserved.(e)

If the defendant has been found guilty of a misdemeanor, in his absence (in felonies, he must be present), process issues to bring him to receive judgment; and, on nonappearance, he may be prosecuted to outlawry.(f) If he has been allowed to leave the court, on entering into recognizances to come up for judgment when called for, and he fails to come up, his recognizances will be forfeited, and a warrant issued for his apprehension.

Judgment or sentence is given by the court, the judge adding such remarks as he thinks proper. Formerly, in all capital felonies, when the court thought that the person convicted was a fit subject for royal mercy, it was lawful, instead of publicly giving sentence of death, to enter it on the record, the effect being the same.(g) But it seems that now, by virtue of 24 and 25 Vict., c. 100, § 2, sentence of death must be pronounced on conviction for murder.

[The right to include several counts in an indictment for felony is limited to presenting the same transaction in different forms. A general verdict on such an indictment is the fore a finding of guilty of a single transaction. As

(f) v. p. 291.

(e) v. p. 410. (g) v. 4 Geo. 4, c. 48, 2 1; 6 and 7 Wm. 4, c. 30, 2; 24 and 25 Vict., c. 95.

(1) Crim. Code, & 276.

(2) Rev. Stat. (1873), p. 693.

such a verdict finds proved all the material averments well charged, the sentence, while it can be for only one offense, may be for the highest offense well charged.(1) But, in Pennsylvania, it was held that where the counts charge several offenses committed in a single transaction—as a breaking with intent to steal and an actual larceny-there may be separate sentences on the separate counts.(2) And, in Massachusetts, where, contrary to the prevailing rule, distinct felonies, committed at different times, may be charged in one indictment, (3) there may be, in such case, on a general verdict of guilty, a single sentence, awarding the aggregate punishment that could be imposed for the separate offenses. (4) When sentence has been pronounced upon a general verdict of guilty, and it appears that some of the counts are good and some bad, the sentence is held to apply to and be supported by the good counts, and be valid. The ruling to the contrary, that the sentence, in such cases, is erroneous, made by the majority of the house of lords, in O'Connell's case, 11 Cl. & Fin. 15, made under the stress of political circumstances, excited surprise in the profession in England, and has not been followed in this country.

The rule of pleading above stated is modified by the statutes which permit several distinct larcenies or embezzlements to be charged in one indictment.

Several distinct misdemeanors may be joined in one indictment. But it was held, in New York, that, upon a verdict of guilty of all, the sentence can not be greater than if there were but a single count.(5)]

(1) Commonwealth v. Hope, 22 Pick. 1; Commonwealth v. Kirby, 2 Cush. 577; People v. McGeery, 6 Parker, C. C. 653; People v. Bruns Ib. 657; Manly v. State, 7 Md. 135; Bullock v. State, 10 Ga. 47.

(2) Commonwealth v. Burdsall, 69 Penn. St. 482.

(3) Commonwealth v. Hills, 10 Cush. 530.

(4) Carleton v. Commonwealth, 5 Metc. 532. (5) Tweed v. People, 60 N. Y. 559.

CHAPTER XX.

INCIDENTS OF TRIAL.

SOME miscellaneous points connected with a criminal trial remain to be noticed, now that we have viewed the general order of proceedings.

Defense in forma pauperis.-In cases of extreme poverty (that is, when the defendant will swear that he is not worth £5 in the world, besides his wearing apparel, after paying his debts) the defendant may petition the queen's bench division to be allowed to defend himself as a pauper. His petition must be verified at the same time by an affidavit. It (the petition) is presented either to a judge at chambers or in court. On the prayer of the petition being granted, a rule is drawn up by the judge's clerk, mentioning the name of the counsel and attorney assigned for the defense; and this must be produced when the pauper requires any thing to be done without payment of fees.(h)

There is also a custom of a similar nature. In cases where there is a special difficulty, or where the conse quences are very serious, and therefore usually on indictments for murder, if the prisoner is not defended by counsel, the judge requests some barrister to give his honorary services to the prisoner. Of course this request is always complied with.

[In Ohio,(1) Illinois, (2) and Iowa, (3) the court assigns counsel to defendants who are too poor to employ any. Counsel, as used in these statutes, includes counsel, attorney, and barrister, named in the text, there being no distinction in most of the states between attorneys and barristers.]

(h) Arch. 151. R. v. Dugdale, Corner's Cr. Prac. 167. (1) 66 Ohio L. 340.

(2) Rev. Stat. (1877), p. 405.

(3) Rev. Stat. (1873), p. 673.