stat. 7 G. 4, c. 64, s. 19, "for preventing abuses from dilatory pleas," it is enacted" that no indictment or information shall be abated by reason of any dilatory plea of misnomer, or of want of addition, or of wrong addition of the party offering such plea;" but in such case the Court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded."

Plea of Not Guilty.] Upon being asked whether he is guilty, or not guilty, the defendant may plead ore tenus" Not guilty," and the clerk of the peace afterwards, in making up the record, will put it into proper form. See the form, ante, p. 31. Formerly the clerk of the peace asked the defendant also "How will you be tried;" and he answered, “ By God and my Country." But now, by stat. 7 & 8 G. 4, c. 28, s. 1, if any person, not having privilege of peerage, being arraigned upon any indictment for treason, felony or piracy, shall plead thereto a plea of "Not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial; and the Court shall, in the usual manner, order a jury for the trial of such person accordingly.

If instead of pleading "Not guilty," the defendant say that he is "Guilty," this is a confession of the offence, which subjects him to precisely the same punishment, as if he were tried and found guilty by verdict. But as defendants often imagine that, by pleading guilty, they are likely to receive some favour from the Court in the sentence that will be passed upon them, it is usual for the chairman or recorder, before the confession is recorded, to undeceive the defendant in this respect, and apprize him that his pleading guilty will make no alteration whatever in his punishment. If, however, he still persist in his plea of guilty, it is then recorded by the clerk of the peace.

Auterfois acquit.] That the defendant was formerly indicted for the same offence, and acquitted, is a good plea in bar to a subsequent indictment for the same offence; 2 Hal. 241, 242. 2 Hawk. c. 35, s. 10; for the law will not suffer a man to be twice put in jeopardy for one offence. This plea sets out the former record of acquittal, to the end of the judgment: see R. v. Wilday, 1 Maule & S. 183; and it must appear, either from such record or by averment, that both indictments were for the same offence, see R. v. Cogan, 1 Leach, 448. R. v. Taylor, 3 B. & C. 502. R. v. Clarke, 1 Brod. & B. 473. R. v. Emden, 9 East, 437, and that the defendant in the present case, was also the defendant in the former. The former indictment must also appear to be a good and valid indictment for the offence, which might be supported by the same evidence as would be necessary to

prove the present one. R. v. Vandercombe, 2 Leach, 708. and see Vaux's Case, 4 Co. 45, a. Wigges' Case, 4 Co. 46, b. As this plea very seldom occurs at Sessions, I have not thought it necessary to give a precedent for it in this work.

Auterfois attaint.] Auterfois attaint of the same offence, is a good plea in bar to a subsequent indictment for the same offence. 2 Hal. 253. and see R. v. Scott, 1 Leach, 401. R. v. Bowman, 6 Car. & P. 337. So formerly auterfois attaint of another felony, was a bar to any subsequent indictment for felony, whilst the former attainder continued in force. But now, by stat. 7 & 8 G. 4, c. 28, s. 4, " no plea, setting forth any attainder, shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment."

Plea of Pardon.] A pardon may be pleaded in bar of an indictment for any felony or other offence previously committed. Formerly a pardon could not be pleaded, unless it were under the great seal. But now, by stat. 7 & 8 G. 4, c. 28, s. 13, and 6 G. 4, c. 25, s. 1, where the King, by warrant under his sign manual, countersigned by one of his principal secretaries of state, shall grant to any felon a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, as to the felony for which such pardon shall be granted; but no pardon shall affect or mitigate the punishment of the offender for any felony committed by him after the granting of such pardon. And by stat. 9 G. 4, c. 32, s. 3, offenders convicted of felonies not punishable with death, who shall have undergone the punishment adjudged for the offence, the punishment so endured shall have the like effects and consequences as a pardon under the great seal, as to the felony whereof the party was so convicted. This latter statute, however, was made, more for the purpose of restoring such parties to their civil rights, without putting them to the expense of a formal pardon, than with any reference to the pleading of this matter in bar of any subsequent indictment; for the parties in such cases might plead auterfois attaint. Vide supra.

Demurrer.] As demurrers very seldom occur at Sessions, I have not thought it necessary to give a precedent of one in this work. Indeed they very seldom occur in practice at the assizes, or even in the Court of King's Bench: they are very seldom pleaded to indictments, because a defendant may have the same advantages by a motion in arrest of judgment after he has been convicted by verdict; whereas upon demurrer, in a case of a misdemeanor, the judgment is final, and not merely that the party

shall answer over; Per Lawrence, J. in R. v. Gibson, 8 East, 112; and demurrers to other pleadings occur still more seldom, as special pleadings scarcely ever occur in practice, except in prosecutions for the non-repair of highways or bridges.

A demurrer in criminal cases, has the effect of opening the whole record to the Court; and therefore upon arguing it, a defendant may take objections, as well to the jurisdiction of the Court where the indictment was found, as to the subject-matter of the indictment itself. R. v. Fearnley, 1 T. R. 316.

4. Petty Jury Sworn and Charged.

Swearing the Jury.] Upon a full petty jury appearing, and the prisoners, who have been arraigned, being at the bar, the clerk of the peace, in cases of felony, addresses the prisoners thus: "Prisoners: these good men who shall now be called, are the Jurors who are to pass between our Sovereign Lord the King, and you upon your [respective] trials; if therefore you [or either of you, or any of you] will challenge them or any of them, you must challenge them as they come to the book to be sworn, and before they are sworn, and you shall be heard."

The names of the jurors are then separately called over by the clerk of the peace, and the crier of the Court administers the oath thus: "You shall well and truly try, and true deliverance make, between our Sovereign Lord the King and the prisoners at the bar, whom you shall have in charge, and a true verdict give according to the evidence: So help you God." As to the affirmation of Quakers, Moravians, and Separatists, see ante, p. 145.

As each juror is named, and before he is sworn, the prisoner may challenge him, as mentioned infra.

In misdemeanors, the jury are at once sworn, usually four jurors at a time, without giving the defendants their challenges, as above mentioned. The oath is thus: "You shall well and truly try the issue joined between our Sovereign Lord the King and the defendant, and a true verdict give according to the evidence: So help you God."

Challenges of Jurors.] Jurors must be challenged, if at all, before they are sworn.

The King or the party might challenge the whole array, for favour. 1 Inst. 156. See R. v. Edmonds, 4 B. & Ald. 471. But by stat. 6 G. 4, c. 50, s. 28, no challenge shall be taken to any panel of jurors, for want of a knight's being returned in such panel, nor any array quashed by reason of any such challenge.

The prisoner may peremptorily challenge twenty jurors, but

not more, in cases of murder or other felony. 6 G. 4, c. 50, s. 20. But there is no peremptory challenge in misdemeanors, R. v. Reading, 7 How. St. Tr. 264, nor upon the trial of collateral issues. Fost. 42. R. v. Ratcliffe, 1 W. Bl. 3. Every challenge above the number above limited, is void, and the trial may proceed as if no such challenge had been made. 7 & 8 G. 4, c. 28, s. 3.

The King has no peremptory challenge: he can challenge only for cause; 6 G. 4, c. 50, s. 29; but he is not bound to shew cause, until the whole panel be gone through, and it appear that there will not be a full jury without the person challenged. 2 Hawk. c. 43, s. 2.

The prisoner, besides his peremptory challenges, may also challenge as many of the jury as he pleases for cause, shewing the cause presently, 1 Inst. 158, and being prepared to prove it. R. v. Savage, Ry. & M. 51. Thus, he may challenge a juror, because he is a peer; 1 Inst. 156. 2 Hawk. c. 43, s. 11; or because he is one of the grand jurors who found the indictment; Lamb. 554; or because he has not the qualification required by the Jury Act, 6 G. 4, c. 50, s. 27; or because he is an alien; 1 Inst. 156; or because he is under age; 1 Inst. 157; or because he is of kindred or of affinity to the prosecutor; Semb. 1 Inst. 157; or because he has made some declaration, shewing a prejudice against the prisoner; 2 Hawk. c. 43, s. 28; or the like. As to the manner of trying the challenges, see 2 Burn, D. W. 1133. If a person serve on the jury, who has been regularly summoned, but against whom there is a cause of challenge, for which the prisoner would have challenged him if he were aware of it, still this is no ground for applying for a new trial. R. v. Sutton, 8 B. & C. 417. But where a son served on a jury for his father, at his father's request, and without collusion with either the prosecutor or the defendant, and the son was under age, and had no qualification, nor was his name upon the panel: the Court of King's Bench held this to be a mistrial, and granted a new trial. R. v. Tremearne, 5 B. & C. 254. but see stat. 7 G. 4, c. 64, s. 21, post, p.255.

No challenge can be made until a full jury appears. R. v. Edmonds, 4 B. & Ald. 471.

Jury charged.] When the challenges (if any) have been disposed of, and a full jury have been sworn, the clerk of the peace, in cases of felony, and also in cases of misdemeanor, if no counsel be employed for the prosecution, charges the petty jury with each case thus: "Gentlemen of the Jury: the prisoner stands indicted, by the name of A. B. late of," &c. "for that he, on the," [&c. as in the indictment to the end.]" Upon this indictment he has been arraigned, upon his arraignment he has pleaded not guilty, and for his trial has put himself upon his country,

which country you are: Your charge therefore is, to inquire whether he be guilty of the [felony] whereof he stands indicted, or not guilty, and to hearken to the evidence."

5. Case stated, Evidence, Defence, &c.

For the Prosecution.] If counsel be engaged for the prosecution, he addresses the jury, states the case to them, and then calls the witnesses to prove it. As to the examination of witnesses, see ante, p. 151; and as to the cross-examination, see ante, p. 153. If there be no counsel for the prosecution, the prosecutor himself has no right to address the jury as counsel, particularly if he is to be examined as a witness in the course of the trial. R. v. Brice, 2 B. & Ald. 606. R. v. Milne, Id. 606, n.

Each witness is sworn in this form: "The evidence you shall give to the Court and jury sworn, between our Sovereign Lord the King and the prisoner at the bar [or defendant,] shall be the truth, the whole truth, and nothing but the truth: So help you God." As to the affirmation of Quakers, Moravians, and Separatists, see ante, p. 145.

For the Defence.] The defendant in all cases has, and at all times had, a right to address the jury in his defence. In misdemeanors he was and is still allowed to do this by counsel. But in high treason and felony, his counsel formerly was not allowed to address the jury for him.

In high treason and misprision of teason, however, this privilege was granted to defendants, by stat. 7 & 8 W. 3, c. 3, s. 1, by which it is enacted, that every person indicted, arraigned or tried for such offences, "shall be received and admitted to make his and their full defence by counsel learned in the law; and in case any person or persons so accused or indicted, shall desire counsel, the Court before whom such person or persons shall be tried, or some judge of that Court, shall and is hereby authorized and required immediately, upon his or their request, to assign to such person and persons such and so many counsel, not exceeding two, as the person or persons shall desire, to whom such counsel shall have free access at all seasonable hours."

And in felony, by stat. 6 & 7 W. 4, c. 114, s. 1, reciting that "it is just and reasonable that persons accused of offences against the law, should be enabled to make their full answer and defence to all that is alleged against them," it is enacted" that from and after the first day of October next, all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in