favourable to one side than the other, and this is reason for a challenge to the favour. The causes of favour are infinite, and in these inducements to suspicion of favour, the question is, "whether the juryman be indifferent as he stands unsworn;" for a juryman ought to be perfectly impartial to either side. (i) As the challenge to the array must be before any of the Time of chaljury are sworn, so challenge to the polls must be before lenge. the particular jurors are sworn. (j) After a challenge to the array, the party may challenge the polls, but after a challenge to the polls, there can be no challenge to the array; and he who has more than one cause of challenge against a juror, must take them all at once: but if he challenge a juror, and the cause be found insufficient, he may nevertheless afterward challenge him peremptorily, for perhaps the very challenge may create a prejudice in the mind of the juror so challenged. (k) A challenge to the array must be in writing, but a chal- One challenge lenge to the polls is merely a verbal intimation of objec- in writing, the tion. (1) other verbal. A principal cause of challenge being grounded on a How challenges manifest presumption of partiality, if it be found true, it to be deterunquestionably sets aside the array, without any other trial mined. than its being made out to the satisfaction of the Court, before which the panel is returned. But a challenge to the favour, when the partiality is not apparent, must be left to the discretion of the triers. (m) If the array be challenged, it lies in the discretion of the Court to determine how it shall be tried : sometimes it is done by two attornies, sometimes by two coroners, and sometimes by two of the jury; with this difference, that if the challenge be for kindred in the sheriff, it is most fit to be tried by two of the jurors returned; if the challenge be on account of partiality, then by any other two assigned thereunto by the Court. (n) When a challenge is made to the array for favour, the prosecutor may either confess it, or plead to it; if he plead, the judges assign triers to try the array, who seldom exceed two, who being chosen and sworn, the clerk of the peace declares to them the challenge, and concludes to them thus,-" and so your charge is to inquire whether it be an impartial array, or a favourable one;" (i) Co. Lit. 157. (b.) (j) Bul. N. P. 307. Swearing the jury in felony. Swearing the jury in misde meanors. and if they affirm it, the clerk enters underneath the challenge," affirmatur;" but if the triers find it favourable, then thus, "calumnia vera," or words to that effect. (0) As to challenges to the polls; if a juror be challenged before any juror is sworn, two triers are appointed by the Court; and if he be found indifferent, and sworn, he and the two triers shall try the next challenge; and if he be tried and found indifferent, then the two first triers shall be discharged, and the two jurors tried and found indifferent shall try the rest. But if the prosecutor challenge ten, and the prisoner one, and the twelfth be sworn, then he that remains shall have added to him one chosen by the prosecutor, and another by the prisoner, and they three shall try the challenge; and if six be sworn and the rest challenged, the Court may assign any two of the six sworn to try the challenges. (p) The truth of the matter alleged as cause of challenge must be made out by witnesses to the satisfaction of the triers; also the juror challenged may on a voir dire (veritatem dicere, to speak the truth) be asked such questions as do not tend to his disgrace. But a juror may not be asked whether he have been whipped for larceny, convict of felony, and such questions as tend to discover matters of infamy or shame. (q) Nor may a juror be asked whether he has expressed an opinion or determination hostile to the party challenging. (r) The challenges being now supposed to have been waived or determined, and the jury full, the clerk of the peace calls the jury to be sworn, every man severally, and this is done, in case of felony, in the following manner : "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." The crier then counts the jurors, as the clerk of the peace reads their names, and asks them" if they are all sworn." In cases of misdemeanor, the jurors are sworn four at a time, in the following terms : "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." In cases of felony, after the jury are sworn, the crier Proclamation. makes proclamation in this manner: "If any one can inform my lords the King's justices, the King's attorney-general, or the King's serjeant, or this inquest now to be taken, of any felonies or misdemeanors done or committed by the prisoner at the bar, let him come forth, and he shall be heard; for the prisoner now stands at the bar on his deliverance; and they that are bound to prosecute and give evidence, let them come forth and prosecute and give evidence, or they will forfeit their recognizances." A like form, with the omission of the term felony, the substitution of the word defendant for prisoner, and the omission of the standing at the bar, &c. is employed in cases of misdemeanor. The prosecutor and his witnesses are then called by name, and, if they appear, take their places in court. In cases of misdemeanor, the trial at once now begins Charging the by the opening of the prosecutor's counsel. But in felo- jury with the nies there is yet a further preliminary form to be used, prisoner in case termed charging the jury. This consists in the clerk of the peace again desiring the prisoner to hold up his hand; and addressing the jury: "Gentlemen of the jury, look on the prisoner and hearken to his charge; he stands indicted by the name of A. B. late of the parish of Sonning, in the county of Berks, labourer, for that he, on &c. (read ing the indictment to the end). Upon this indictment he hath been arraigned; upon his arraignment he hath pleaded not guilty; your charge, therefore, is to inquire whether he be guilty or not guilty." In addition to this charge, the jury were formerly charged, if they found the prisoner guilty, to inquire of his lands and tenements, goods and chattels; and if they found him not guilty, to inquire whether he fled, and if he fled, to inquire of his goods and chattels; but these unmeaning forms, which had fallen into disuse, were expressly abolished by 7 and 8 Geo. 4. c. 28. s. 5. which enacts, "that where any person shall be indicted for treason or felony, the jury empowered to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony." The jury being thus charged, the trial commences. In Commencement important cases of misdemeanor, where there are two or of the trial. more counsel for the prosecution, the junior states the substance of the indictment, which the jury have not yet Opening of proheard; but this is superfluous in felony, where the indict- secutor's ment has been already twice read in the hearing of the jury; and, though formerly observed, is now generally counsel. disused in sessions' practice. The leading counsel then opens the case for the prosecution, according to his instructions, unless it be of so plain a nature as to require no opening, which will often occur at sessions. When be addresses the jury in a case of felony, he ought to confine himself to a simple detail of the facts which he expects to prove; because the prisoner has no opportunity of laying his case before the jury by his counsel; and even the privilege of stating circumstances, however dryly, in such order and connexion as may tend most directly to a particular conclusion is, in itself, no small advantage accorded to the prosecutor, and certainly should be exercised with great forbearance and caution. It is especially right for counsel to refrain from stating any part of the case the proof of which, from his own brief, may appear doubtful; because he may thus produce an erroneous impression on the minds of uncultivated men which the mere failure of the evidence may not remove, and on which the prisoner is generally quite unable to comment. For the same reason he should always forbear from stating confessions, which often turn out to be inadmissible; and should very rarely detail conversations, which are peculiarly liable to be misunderstood, and the whole bearing of which may be altered by the omission or transposition of a word. In cases of misdemeanor, the prosecuting counsel is not thus restricted, because here the defendant is allowed to make a real defence by his counsel, and, therefore, here the counsel for the prosecutor may not only state his facts, but reason upon them, and anticipate any line of defence which his opponent may probably adopt; but, even here, he should refrain from indulging in invective, and from appealing to the prejudices or passions of the jury; for it is neither in good taste nor in right feeling to struggle for a conviction, as an advocate in a civil cause contends for a verdict. Where no counsel is engaged for the prosecution there is, of course, no opening; for a prosecutor is never allowed personally to address the jury. The cause is not his cause, but that of the crown, though conducted at his instance, and therefore he can only be examined on his oath in the box like another witness. (s) Where there is no counsel, the duty of examining the witnesses devolves on the chairman. In cases of felony, he is assisted in this duty by the depositions, which ought therefore always to be returned by the magistrate before (s) See ante, p. 84. whom they are taken. In cases of misdemeanor he can merely call on the witnesses upon the back of the indictment to be sworn and give their own narrative. Here, then, we must give a general outline of the law as it respects the parts of the charge which must be established, the degree and nature of proof required, and the rules affecting the admissibility of witnesses and of documents. (t) § 5. OF THE PARTS OF THE CHARGE WHICH MUST BE SUPPORTED BY PROOF. In order to convict the prisoner or defendant, the prosecutor must always prove so much of the indictment as will amount to a complete allegation of an offence of the same degree of which he is indicted, but it need not be proved to the full extent charged. Thus, on an indictment for felony, if a misdemeanor only be proved, the prisoner must be acquitted; but he may be found guilty of a felony of lesser atrocity, as, on an indictment for murder, he may be convicted of manslaughter; on an indictment for breaking a house and stealing, of simple larceny. So on an indictment for misdemeanor, in assaulting a constable, in the discharge of his duty, the defendant may be convicted of a common assault. But where it may be doubtful whether the aggravations of the offence will be proved, it is always well to insert a count without them, on which, without difficulty, a verdict may be taken. We have already seen that there are averments in the What averments indictment, which, though required by the technical require proof. accuracy of the law to be inserted, need not be proved. Thus, the day or hour of committing the offence is never material. Where, indeed, time is of the essence of the offence, it must appear to have been done at such an hour as will constitute the crime; but it need not be proved even then at the precise hour laid in the indictment. Thus, on a prosecution of a person for being found armed at night, with intent to kill game, it must be shewn that (t) It is obviously impossible to give in this abridgment more than a general outline of the law upon so extensive a subject. The reader who wishes to possess an ample and lucid exposition of the law of evidence, as especially applicable to criminal cases, will find it in the sixth book of Mr. Serjeant Russell's excellent work on crimes and misdemeanors, which has been supplied for the last edition by Mr. E. V. Williams, the son of the learned annotator on Saunders' Reports; and who, in this compendious treatise, has exhibited much of that power of legal understanding and accurate discrimination which distinguish the works of his father. |