society, but because he was a foreigner, and several of the documents in the case were in a foreign language, and it would, therefore, be convenient for his counsel to have him by his side, that he might consult him during his trial: Held, that the application was one which ought not to be granted R. v. Zulueta, 1 C. & K. 215, 1 Cox, 20. A similar application by a captain in the army was also refused in R. v. Douglas, Car. & M. 193. But in misdemeanours defendant who is on bail and surrenders to take his trial need not stand at the bar to be tried: R. v. Lovett, 9 C. & P. 462.

COUNSEL'S ADDRESSES TO THE JURY. (Amended).

661. If an accused person, or any one of several accused persons being tried together, is defended by counsel, such counsel shall, at the end of the case for the prosecution, declare whether he intends to adduce evidence or not on behalf of the accused person for whom he appears; and if he does not thereupon announce his intention to adduce evidence the counsel for the prosecution may address the jury by way of summing up.

2. Upon every trial for an indictable offence, whether the accused person is defended by counsel or not, he or his counsel shall be allowed, if he thinks fit, to open his case, and after the conclusion of such opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence. If no witnesses are examined for the defence the counsel for the accused shall have the privilege of addressing the jury last, otherwise such right shall belong to the counsel for the prosecution: Provided, that the right of reply shall be always allowed to the Attorney-General or Solicitor-General or to any counsel acting on behalf of either of them. R. S. C. c. 174, s. 179. 28 V. c. 18, s. 2 (Imp.).

The words in italics in s-s. 2 seem in contradiction with the last part of s-s. 1. The corresponding section in the Imp. draft Code is differently worded. However, as it is, this 8. 661 probably bears a construction that brings no substantial change in the law. The reply is now given to any counsel acting on behalf of the Attorney-General or SolicitorGeneral instead of to any Queen's counsel acting on behalf of the Crown. The addresses of counsel are, therefore, to take place as follows:-First case: When no evidence for the defence: Counsel for the Crown opening the case: Crown's evidence. Defendant or his counsel declares that he has no evidence to adduce; counsel for the Crown

sums up defendant or his counsel addresses jury; reply of counsel for the Crown, but only by Attorney or SolicitorGeneral, or counsel, acting on behalf of either of them. Second case: where the defence adduces evidence. Crown prosecutor opens the case: evidence of the Crown; defendant or his counsel addresses the jury: defendant's evidence; defendant or his counsel sums up; reply of prosecution in all cases. In the first case, the counsel for the prosecution seldom in practice exercises both the rights of summing up and replying, and should not do so except for special reasons: R. v. Holchester, 10 Cox, 226; if the counsel, however, is not the Attorney-General or Solicitor General, or a counsel acting on behalf of either of them, he has to sum up the evidence, after it is over and before the defendant or his counsel addresses the jury, if he thinks proper to do so, as he is not allowed to reply; if he is the Attorney-General or Solicitor-General, or a counsel acting on behalf of either of them, he, in practice, does not sum up, as he is entitled to reply whether the defendant adduces evidence or not, though in England this right is very sel dom exercised where no evidence, or evidence as to character only, is offered. In the second case, in practice, the defence addresses the jury only after its evidence is over; two addresses would generally have no other result but to lengthen the trial, and fatigue judge, counsel and jury: see R. v. Kain, 15 Cox, 388, and Archbold, 178.

Opening of counsel for prosecution.-A prosecutor couducting his case in person, and who is to be examined as a witness in support of the indictment, has no right to address the jury as counsel: R. v. Brice, 2 B. & Ald. 606; R. v. Stoddart, Dickinson's Quarter Sessions, 152; R. v. Gurney, 11 Cox, 414, where a note by the reporter, supported by authorities, says that such is the law whether the prosecutor is to be a witness or not.

Sergeant Talfourd, in Dickinson's Quarter Sessions, 495, on the duties of the counsel for the prosecution, says:

"When the counsel for the prosecution addresses the jury he ought to confine himself to a simple statement of the facts which he expects to prove; but in cases where the prisoner has no counsel he should particularly refrain from stating any part of the facts, the proof of which from his own brief appears doubtful, except with proper qualification; for he will either produce on the minds of the jurors an impression which the mere failure of the evidence. may not remove in instances where the prisoner is unable to comment on it with effect; or may awaken a feeling against the case for the prosecution which in other respects it may not deserve. The court, too, if watchful, cannot fail, in the summing up, to notice the discrepancy between the statement and the proof. But in all cases, as well of felony as misdemeanour, where a prisoner has counsel, not only may the facts on which the prosecution rests be stated, but they may be reasoned on, so as to anticipate any line of defence which may probably be adopted. For as counsel for parties charged with felony may now address the jury in their defence, as might always have been done in misdemeanour, the position of parties charged with either degree of offence is thus assimilated in cases where they have counsel, and it is no longer desirable for the prosecutor's counsel to abstain from observing generally on the case he opens in such manner as to connect its parts in any way he may think advisable to demonstrate the probability of guilt and the difficulty of an opposite conclusion. 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 right feeling to struggle for a conviction as an advocate in a civil cause. contends for a verdict."

On the duties of counsel, in opening the case for the prosecution, it is said in Archbold, 178: "In doing so he ought to state all that it is proposed to prove, as well declarations of the prisoners as facts, so that the jury may see if there be a discrepancy between the opening state

ments of counsel and the evidence afterwards adduced in support of them: per Parke, B., R. v. Hartel, 7 C. & P. 773; R. v. Davis, 7 C. & P. 785; unless such declarations should amount to a confession, where it would be improper for counsel to open them to the jury; R. v. Swatkins, 4 C. & P. 548. The reason for this rule is that the circumstances under which the confession was made may render it inadmissible in evidence. The general effect only of any confession said to have been made by a prisoner ought, therefore, to be mentioned in the opening address of the prosecutor's counsel."

Mr. Justice Blackburn, in R. v. Berens, 4 F. & F. 842, Warb. Lead. Cas. 237, said that the position of prosecuting counsel in a criminal case is not that of an ordinary counsel in a civil case, but that he is acting in a quasi judicial capacity, and ought to regard himself as part of the court: that while he was there to conduct his case, he was to do it at his discretion, but with a feeling of responsibility, not as if trying to obtain a verdict, but to assist the judge in fairly putting the case before the jury, and nothing more.

In R. v. Puddick, 4 F. & F. 497, it is said per Cromp ton, J.: "The counsel for the prosecution are to regard themselves as ministers of justice, and not to struggle for a conviction as in a case at nisi prius; nor be betrayed by feelings of professional rivalry to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence."

Summing up by counsel for the prosecution, where the defence brings no evidence.-It has already been remarked that in practice, if the counsel for the prosecution has the right of reply and intends to avail himself of it, it would be waste of time for him to sum up; but if the counsel has not the right of reply he will perhaps find it useful to review the evidence as it has been adduced, and give some explanations to the jury. But it has been held in R. v. Puddick, 4 F. & F. 497, that the counsel for the prosecution

ought not, in summing up the evidence, to make observations on the prisoner's not calling witnesses, unless, at all events, it has appeared that he might be fairly expected to be in a position to do so, and that neither ought counsel to press it upon the jury that if they acquit the prisoner they may be considered to convict the prosecutor or prosecutrix of perjury. Nor is it the duty of counsel for the prosecution to sum up in every case in which the prisoner's counsel does not call witnesses. The statute gives him the right to do so, but that right ought only to be exercised in exceptional cases, such as where erroneous statements have been made and ought to be corrected, or when the evidence differs from the instructions. The counsel for the prosecution is to state his case before he calls the witnesses; then, when the evidence has been given, either to say simply, "I say nothing," or "I have already told you what would be the substance of the evidence, and you see the statement which I made is correct;" or in exceptional cases, as if something different is proved from what he expected, to address to the jury any suitable explanation which may be required: R. v. Berens, 4 F. & F. 842, reporter's note; R. v. Holchester, 10 Cox, 226; R. v. Webb, 4 F. & F. 862. By the Canada Evidence Act of 1893, 56 V. c. 31, s. 4, it is enacted that the failure of the accused or of his wife or husband to testify shall not be made the subject of comment by the judge or by counsel for the prosecution in addressing the jury.

The defence. The defendant cannot have the assistance of counsel in examining and cross-examining witnesses, and reserve to himself the right of addressing the jury: R. v. White, 8 Camp. 98; R. v. Parkins, 1 C. & P. 548. But see post as to statements by him to the jury. But if the defendant conducts his own case counsel will be allowed to address the court for him on points of law arising in the case: Idem. Not more than two counsel are entitled to address the court for a prisoner during the trial upon a point of law: R. v. Bernard, 1 F. & F. 240.