[the judge's opinion must rule the verdict, the trial by jury would be useless. Yet, in many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside; and a new trial granted by the court of queen's bench (n). But there hath yet been no instance of granting a new trial, where the prisoner was found not guilty on the first (o). If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation (p). And upon such his acquittal,-or upon his discharge for want of prosecution, or upon the bill of indictment not being found by the grand jury (q),—he shall be immediately set at large, without payment of any fee to the gaoler (r). But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted (s). Which conviction, therefore, may accrue two ways, either by his confessing the offence, and pleading guilty; or by his being found so by the verdict of his country.] With such conviction of the offender two collateral cir (n) See R. v. Read, 1 Lev. 9; St. Tr. x. 416; R. v. Whitehouse, 1 Dearsley, C. C. 1. Such new trial, however, will not, it is said, be granted unless the record be in the Queen's Bench, either originally or on removal by certiorari, before verdict found. (Arch. Pl. & Ev. 15th ed. p. 160.) (0) Hawk. P. C. b. 2, c. 47, s. 11. But see R. v. Scaife and others, (17 Q. B. 238,) a recent case in which a verdict, finding one of the prisoners charged with a felony not guilty, was set aside and a new trial ordered, on the ground of misdirection as to evidence. And as to misdemeanors, there have been several instances in which a new trial has been granted after a verdict of acquittal; but chiefly in cases of indictments for nonfeasance, and such as involve civil liability, though the proceeding is criminal in form. (See The Queen v. Russell, 3 Ell. & Bl. 942.) (p) The civil law in such case only discharges him from the same accuser, but not from the same accusation. Ff. 48, 2, 7, s. 2. (4) Vide sup. p. 487, n. (y). (r) See 14 Geo. 3, c. 20; 55 Geo. 3, c. 50; 8 & 9 Vict. c. 114; R. v. Coles, 8 Q. B. 75. (s) In the Roman republic, when the prisoner was convicted of any capital offence by his judges, the form of pronouncing that conviction was something particularly delicate; not that he was guilty, but that he had not been enough upon his guard: "parum cavisse videtur.” (Festus, 325.) cumstances are connected-first, the allowance of the expenses of the prosecutor; and secondly, in case of larceny, the restitution of his goods. 1. And, first, by 7 Geo. 4, c. 64, s. 22 (t), the court before whom an indictment for any felony is preferred (u), is empowered to allow the expenses of the prosecutor and his witnesses (x),-with compensation for their trouble and loss of time (y): and this whether the case shall terminate in conviction or acquittal, or in the throwing out the bill of indictment (z). And by 10 & 11 Vict. c. 82, and 18 & 19 Vict. c. 126, similar powers are given to justices at petty (t) This Act repeals the previous enactments contained in 27 Geo. 2, c. 3; 18 Geo. 3, c. 19; 58 Geo. 3, c. 70. (u) See also 7 & 8 Vict. c. 2, s. 1, as to offences committed on the high seas; 17 & 18 Vict. c. 104, s. 267, as to offences by British seamen; 19 & 20 Vict. c. 16, s. 13; 24 & 25 Vict. c. 134, s. 223, as to prosecutions under the Bankruptcy Act; and 25 & 26 Vict. c. 65, s. 12, as to prosecutions removed for trial to the Central Criminal Court. (x) By 7 Geo. 4, c. 64, s. 28, and 14 & 15 Vict. c. 55, s. 8, the court may also order compensation to parties who have been active in the apprehension of certain offenders. (Vide sup. pp. 431, 432.) We may remark here, that costs are also in some cases allowed to defendants in criminal proceedings. For by 4 & 5 W. & M. c. 18, if the prosecutor, on an information filed by the Master of the Crown office, does not try within a year after issue joined, or if the defendant be acquitted by verdict, or a nolle prosequi be entered; the Court of Queen's Bench may award costs to the defendant,-unless the judge before whom it is tried certifies in open court on the trial, that there was a reasonable ground for the prosecution. See also 19 & 20 Vict. c. 16, ss. 25, 26; and 25 & 26 Vict. c. 65, s. 12, in reference to the expense of witnesses for prisoners, tried under those Acts. (y) By 14 & 15 Vict. c. 55, s. 4, the amount of costs and expenses to be allowed, is placed under the superintendence of the secretary of state; and the costs of prosecutions, being charged in the first instance upon the county rate, (or in the case of a borough with a separate quarter sessions on the borough rate,) are repaid to the treasurer of the county (or borough) out of monies provided by parliament. The amount of the sum granted for the year ending 31st March, 1862, for prosecutions at assizes and quarter sessions, &c. was 167,6781. (See 25 & 26 Vict. c. 71.) (z) Even if no bill is preferred, the court before whom any person has been summoned to attend by recognizance or subpoena, may be compensated for expenses incurred and trouble and loss of time, either in attending such court or the examining justices. (7 Geo. 4, c. 64, s. 22.) sessions, dealing with offences under those Acts, in the exercise of their summary jurisdiction. Moreover, though there is no general provision on this subject with regard to misdemeanors, the costs of prosecution are provided for in the same way, in reference to a great variety of misdemeanors, by the particular Act under which the misdemeanor is punishable (a). 2. [By the common law there was no restitution of goods upon an indictment, because it is at the suit of the Crown only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again (b).] But afterwards, by statute 21 Hen. VIII. c. 11, where any person was convicted of larceny, by the evidence of the party robbed, such party was to have full restitution of his money, goods and chattels,—or the value of them out of the offender's goods, (if he had any,)-by a writ to be granted by the justices. And latterly, it became the practice for the court, [upon the conviction of a felon, to order, without any writ, immediate restitution of such goods as are brought into court, to be made to the several prosecutors (c).] And though the statute of 21 Hen. VIII. is repealed (d), a writ or order of restitution may now, in many cases, be issued under the provision of 24 & 25 Vict. c. 96, s. 100 (e); which enacts that if any person, guilty of any felony or misdemeanor mentioned in that Act (f), in stealing, taking, obtaining, extorting, (a) See the following enactments: s. 3; 19 & 20 Vict. c. 16, s. 13; 24 (b) 3 Inst. 242. As to an appeal, (c) There is no power, either at common law or by statute, for a judge to give any direction as to the disposal of chattels found on a felon, which do not belong to the prosecutor. See the Queen v. The Corporation of London, 1 Ell. Bl. & Ell. 509. (d) By 7 & 8 Geo. 4, c. 27. (e) Re-enacting 7 & 8 Geo. 4, c. 29, s. 57, repealed by 24 & 25 Vict. c. 95. (f) An exception, however, is made with regard to prosecutions of trustees, bankers and other agents for misdemeanors under the Act, in respect of goods or documents of titles entrusted to them. (24 & 25 Vict. c. 96, s. 100.) embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property, shall be indicted for the same, by or on behalf of the owner, his executor or administrator, and be convicted thereof,-the property shall in such case, be restored to the owner or such his representative; and the court shall have power to award, from time to time, writs of restitution for such property, or to order the restitution thereof in a summary manner (g). This, however, is subject to a proviso as to valuable securities, that no restitution shall be awarded if before the award thereof it shall appear that they shall have been bonâ fide paid or discharged by some person liable to the payment thereof;or, (being negotiable instruments,) shall have been bonâ fide taken by transfer or delivery, by some person for a just and valuable consideration;-without any notice or reasonable cause to suspect that they had been stolen, taken, obtained, extorted, embezzled, converted or disposed of by means of any felony or misdemeanor. It is to be observed with respect to restitution after conviction, that it [reaches the goods so stolen, notwithstanding the property of them is endeavoured to be altered by sale in a market overt (h);] a doctrine on which (g) A similar power is given to the justices of the peace, on their summarily convicting a juvenile offender of larceny, under the provisions of 10 & 11 Vict. c. 82; 13 & 14 Vict. c. 37; or on their exercising the summary jurisdiction conferred on them in certain cases of larceny, by 18 & 19 Vict. c. 126. (h) 1 Hale, P. C. 543; 4 Bl. Com. 363. Even without any award of restitution, the party may peaceably retake his goods wherever he happens to find them, unless a new property have been fairly acquired therein. And he may bring an action of trover against any one who has bought them in market overt, Blackstone remarks, that [though it may seem somewhat hard on the buyer, yet the rule of law is, that spoliatus debet, ante omnia, restitui; especially when he has used all the diligence in his power to convict the felon. And since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, -who has done a meritorious act by pursuing a felon to condign punishment,-to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction.] |