Adjournment. Decision. the proceedings shall be stayed, and a new trial shall be held with the aid of fresh Assessors. (5 of 1876, s. 127.) 137. The Court may in its discretion from time to time adjourn the trial, if necessary. In the event of adjournment the Assessors shall be required to attend at the adjourned sitting, and at every subsequent sitting till the conclusion of the trial. (5 of 1876, s. 128.) 138. The opinion of each Assessor shall be given orally, and shall be recorded in writing by the Court, but the decision shall be vested exclusively in the Judge. Any Assessor dissenting from any decision of the Court, or from any punishment awarded, may record in the Minutes his dissent and the grounds thereof. (5 of 1876, s. 129.) Depositions, when admissible. Accused on examination. DEPOSITIONS AND STATEMENTS. 139. The Deposition of any witness taken by the Court at the investigation of the charge, or in accordance with the provisions of this Ordinance respecting the preservation of testimony, in the presence of the accused person, such accused having had full opportunity of cross-examining such witness, may be given in evidence if the witness be dead, or the Court be satisfied that for any sufficient cause his attendance cannot be procured. (5 of 1876, s. 130.) Statements of 140. Any statement made by the accused at the preliminary examination in answer to any questions put to him by the Court may be given in evidence, if the Court before which the trial is had thinks fit. (5 of 1876, s. 131.) Proof of Depositions and Statements. Dying Examination 141. The signature, or signature and attestation, of the Commissioner or Judge shall be sufficient primâ facie proof of any deposition or statement, and that the same was taken in all respects according to Law, and such attestation and signature shall be admitted without proof unless the Court shall see reason to doubt the genuineness thereof. (5 of 1876, s. 132.) 142. Upon a trial where the cause of death of a deceased person comes into question, the declaration of such deceased person, whether it be made in the presence of the accused person or not, may be given in evidence if the deceased person at the time of making such declaration believed himself to be in danger of approaching death, although he entertained at the time of making it hopes of recovery. (5 of 1876, s. 133.) INTERROGATION OF PRISONERS. 143. The Judge presiding at any Criminal trial may, if he shall of Accused think fit, from time to time, at any stage of the case for the proby Judge, secution, examine the accused person and may in like manner question him generally on the case after the witnesses for the prosecution have been examined, and before he enters on his defence, and may also put any question to him he may think fit after his defence has been concluded, but shall not interrogate him during his defence. (5 of 1876, s. 134.) MISCELLANEOUS PROVISIONS. 144. If on the trial of any person charged with any offence it The Person shall appear upon the evidence that the defendant did not complete accused of the offence charged, but was guilty of attempting to commit the any offence may be consame, or to cause such offence to be committed, and in such victed of attempt doing an act towards the commission of such offence, such attempt. defendant shall not be acquitted, but a verdict may be returned of not guilty of the offence charged, but guilty of an attempt to commit the same, and thereupon the defendant shall be punished as if convicted on an information for attempting to commit such offence; and no person so tried as herein last-mentioned shall be afterwards prosecuted for an attempt to commit the offence for which he was so tried. (5 of 1876, s. 135.) included in 145. When a person is charged with an offence, and part of the When offence charge is not proved, but the part which is proved amounts to a proved is different offence, he may be convicted of the offence which he is offence proved to have committed, although he was not charged with it. (5 charged. of 1876, s. 136.) Misde meanour 146. If, on any trial for misdemeanour, the facts given in Partly inevidence amount to a Felony, the defendant shall not be therefore dicted for acquitted of such misdemeanour, and no person tried for such misdemeanour shall be liable afterwards to be prosecuted for not to be Felony on the same facts; unless the Court shall think fit, in its acquitted if offence proved discretion, to discharge the Jury from giving any verdict on such Felony, unless trial, and to direct such person to be prosecuted for felony, where- Court so upon such person may be dealt with as if not previously put on trial for misdemeanour. (5 of 1876, s. 137.) directs. 147. If on any trial for burglary, stealing in a dwelling-house, Persons or breaking and entering and stealing in a shop, warehouse or charged with Burglary, counting-house, or a building within the curtilage of a dwelling- &c., may be house, the facts proved in evidence authorize a conviction for some convicted of other of the said offences, and not the offence wherewith the Stealing in defendant is charged, a verdict shall be returned against him of Dwellingguilty of the said other offence, and thereupon he shall be punished as if he had been convicted on an Information charging him with such offence. (5 of 1876, s. 138.) house, &c. Form of Sentence of Where body of person executed to be buried. Judge to report to Governor. Governor to make Order. Governor may PART V.-PROCEEDINGS AFTER TRIAL. CAPITAL SENTENCES. 148. Every sentence of death shall direct that on a day, not less than fourteen nor more than twenty-one days after the date thereof, the person condemned shall be hanged by the neck until he is dead, but shall not state the place of execution. A certificate under the hand of the Registrar, that such sentence has been passed, and naming the person sentenced, shall be sufficient authority for the detention of such person. (5 of 1876, s. 139.) 149. The body of every person executed for murder shall be buried in such place as the Governor shall order and the sentence of the Court shall so direct. (5 of 1876, s. 140.) 150. So soon as conveniently may be after sentence of death has been pronounced, the Presiding Judge shall forward to the Governor a copy of the Minutes and of his Notes of Evidence taken on the trial, with a Report in writing signed by him, containing any recommendation or observations on the case which he thinks fit to make. (5 of 1876, s. 141.) 151. The Governor, after considering the said Report in Council, shall communicate to the said Judge, or his successor in office, a copy under his hand and the Seal of the Colony of any Order he may make thereon, which Order, if the sentence is to be carried out, shall state the place and time where the execution is to be had, which time may be either the same as expressed in the sentence, or at any later date as may be requisite; and if the sentence is commuted into any other punishment, shall state that punishment, or if the person sentenced is pardoned, shall state the fact. (5 of 1876, s. 142.) 152. The Governor may leave the time at which any sentence of leave time of death is to be carried into effect, at any Province where he may not be, to be fixed by the Judge by whom the person was sentenced, or his successor in office, who shall fix and state in the warrant such time on being so required thereto. (5 of 1876, s. 143.) Execution to be fixed by Judge. Governor's Order to be entered, and Warrant in conformity issued. Warrant to be 153. On receiving the Governor's Order, the Judge shall cause the effect thereof to be entered on the Record of the Court, and if the sentence is to be carried out shall cause a warrant of execution under his hand and the Seal of the Court to be issued, setting out the place and time where and when the execution is to be had, as prescribed in the Order of the Governor, or as fixed as to the time by himself in pursuance of such Order. (5 of 1876, s. 144.) 154. Such warrant shall be directed to the Sheriff or to any carried out by Officer executing the Office of Sheriff in the Province where the sentence is to be carried out, and the Sheriff or such Officer, as the Sheriff or case may be, shall act in accordance therewith. (5 of 1876, s. 145.) Under Sheriff. 155. If a woman sentenced to death be alleged to be pregnant, Pregnant the Court shall inquire into the fact; and if there is reasonable Women. cause for believing it, shall order the sentence to be postponed till the result of the pregnancy be known, and shall report such order to the Governor. (5 of 1876, s. 146.) SENTENCES OTHER THAN CAPITAL. The provisions of the following enactments respecting sentences and their execution apply in the case of Convictions and Orders upon Summary Trial, as well as in the case of sentences upon Trial or Information. Sentences not 156. A warrant under the hand of the Judge or Commissioner Authority for by whom any person shall have been sentenced, ordering that the carrying out sentence shall be carried out in any Prison within the jurisdiction Capital. of the Supreme Court, shall be full authority to the Keeper of such Prison and to all other persons for carrying into effect the sentence described in such warrant, not being a sentence of death. Every sentence shall be deemed to commence from, and to include, the whole of the day of the date on which it was issued. (5 of 1876, s. 147.) Moneys 157. Where the Court orders money to be paid by a person Levying of convicted, or by a prosecutor, for penalty, compensation, expenses, ordered to or otherwise, the money may be levied on the moveable and be paid. immoveable property of the person ordered to pay the same by distress and sale under warrant. If he shows sufficient moveable property to satisfy the Order his immoveable property shall not be sold. (5 of 1876, s. 148.) 158. Such person may pay or tender to the Officer having the Payment or execution of the warrant, the sum therein mentioned, together Tender. with the amount of the expenses of the distress up to the time of payment or tender, and thereupon the Officer shall cease to execute. the same. (5 of 1876, s. 149.) for want of distress. 159. If the Officer having the execution of the warrant returns Commitment that he could find no goods, or no sufficient goods whereon to levy the money mentioned in the warrant with expenses, the Court may by the same or a subsequent warrant commit the person ordered to pay to prison, with or without hard labour, for a time specified in the warrant, unless the money and all expenses of the distress, commitment, and conveyance to prison, to be specified in the warrant, are sooner paid. (5 of 1876, s. 150.) 160. Where it appears to the Court that distress and sale of Commitment goods would be ruinous to the person ordered to pay the money, distress. in lieu of Payment after Commitment. Limitation of Imprisonment. Conviction without order ing Payment of Money. Sentence may expiration of previous sentence. and his family, or (by his confession or otherwise) that he has no goods whereon a distress may be levied, or other sufficient reason (recorded in the Minutes) appears to the Court, the Court may, if it thinks fit, instead of or after issuing a warrant of distress commit him to prison, with or without hard labour, for a time specified in the warrant, unless the money and all expenses of the commitment and conveyance to prison, to be specified in the warrant, are sooner paid. (5 of 1876, s. 151.) 161. Any person committed for non-payment may pay the sum mentioned in the warrant, with the amount of expenses therein authorized (if any), to the person in whose custody he is, and that person shall thereupon discharge him if he is in custody for no other matter. (5 of 1876, s. 152.) 162. No commitment for non-payment shall be for a longer period than three months, except where the law under which the conviction has taken place enjoins or allows a longer period. (5 of 1876, s. 153.) 163. Where a sentence or conviction does not order the payment of money, but orders that the offender be kept in penal servitude, or be imprisoned with or without hard labour, the Court shall issue a warrant of commitment accordingly. (5 of 1876, s. 154.) 164. *Where any person ordered to be imprisoned or kept in commence on penal servitude is at the date of such order undergoing imprisonment or penal servitude for any other offence, the Court may order that such imprisonment or penal servitude shall commence. immediately upon the expiration of the term of imprisonment or penal servitude to which such person was previously sentenced. (5 of 1876, s. 155.) Error or omission not to affect legality of execution. FORMAL DEFECTS. 165. The Court may at any time amend any defect in substance or in form in any order or warrant, and no omission or error as to time and place, and no defect in form in any order or warrant given under this Ordinance, shall be held to render void or unlawful any act done or intended to be done by virtue of such order or warrant, provided that it is therein mentioned, or may be inferred therefrom, that it is founded on a conviction or judgment, and there be a valid conviction or judgment to sustain the same. (5 of 1876, s. 156.) A sentence for escape is to commence upon the expiration of former sentence, unless otherwise ordered: No. 9 of 1876, s. 24. |