2. The names of the persons so summoned shall be added to the general panel, for the purposes of the trial, and the same proceedings shall be taken as to calling and challenging such persons and as to directing them to stand by as are herein before provided for with respect to the persons named in the original panel. R. S. C. c. 174, s. 168.

This is a re-enactment.

JURORS NOT TO SEPARATE. (New).

673. The trial shall proceed continuously, subject to the power of the court to adjourn it. Upon every such adjournment the court may in all cases, if it thinks fit, direct that during the adjournment the jury shall be kept together, and proper provision made for preventing the jury from holding communication with any one on the subject of the trial. Such direction shall be given in all cases in which the accused may upon conviction be sentenced to death. In other cases, if no such direction is given, the jury shall be permitted to separate.

2. No formal adjournment of the court shall hereafter be required, and no entry thereof in the Crown book shall be necessary. R. S. C. c. 174, s. 169.

JURORS MAY HAVE FIRE, ETC. (New).

674. Jurors, after having been sworn, shall be allowed at any time before giving their verdict the use of fire and light when out of court, and shall also be allowed reasonable refreshment. 53 V. c. 57, s. 21.

SAVING CLAUSE.

675. Nothing in this Act shall alter, abridge or affect any power or authority which any court or judge has when this Act takes effect, or any practice or form in regard to trials by jury, jury process, juries or jurors, except in cases where such power or authority is expressly altered by or is inconsistent with the provisions of this Act. R. S. C. c. 174, s. 170.

Section 673 alters the law; s. 674 was first enacted in

1890.

On a trial for felony the jury could not be allowed to separate during the progress of the trial, and where such separation took place it was a mis-trial, and the court then directed that the party convicted be tried again as if no trial had been had in such case: R. v. Derrick, 23 L. C. J. 239.

It seems to have always been admitted that in misdemeanours the jury might be allowed to separate during the trial: R. v. Woolf, 1 Chit. Rep. 401; R. v. Kinnear, 2 B. & Ald. 462.

There is no doubt that, generally speaking, the judge ought not to allow the jury to separate in cases where the

punishment may be for over five years' imprisonment. In fact, some judges never allow the jury to separate and if it can be done without too much inconvenience, this is, perhaps, the best practice. When, however, such separation is permitted, the judge ought to caution the jury against holding conversation with any person respecting the case, or suffering it in their presence, or reading newspaper reports or comments regarding it, or the like: see 1 Bishop, Cr. Proc. 996. They are not allowed to separate after they have retired to consider their verdict: s. 727.

The doctrine that "a jury sworn and charged in case of life or member cannot be discharged by the court, but they ought to give a verdict," is exploded, and it may now be considered as established law that a jury sworn and charged with a prisoner, even in a capital case, may be discharged by the judge at the trial without giving a verdict, if a necessity-that is a high degree of need-for such discharge is made evident to his mind. If after delib erating together the jury say that they have not agreed, and that they are not likely to agree, the judge may discharge them. It lies absolutely in his discretion how long they should be kept together, and his determination on the subject cannot be reviewed in any way: R. v. Charlesworth, 2 F. & F. 326, 1 B. & S. 460; Winsor v. error), 7 B. & S. 490, 10 Cox, 276; s. 728 post.

R. (in

In the course of the trial one of the jurors had, without leave, and without it being noticed by any one, left the jury box and also the court-house, whereupon the court discharged the jury without giving a verdict, and a fresh jury was empannelled. The prisoner was then tried anew, and convicted before the fresh jury: Held, by the Court of Criminal Appeal, that the course pursued was right: R. v. Ward, 10 Cox, 573.

If a juryman is taken ill, so as to be incapable of attending through the trial, the jury may be discharged, and the trial and examination of witnesses begun over

again another juror being added to the eleven; but in that case the prisoner should be offered his challenges over again as to the eleven, and the eleven should be sworn de novo: R. v. Edwards, R. & R. 224; see also R. v. Scalbert, 2 Leach, 620; R. v. Beere, 2 M. & Rob. 472; R. v. Gould, 3 Burn, 98.

In R. v. Murphy, 2 Q. L. R. 383, after the prisoner had been given in charge to the jury, the case was adjourned for one day on account of his counsel's illness.

But when such a trial has to be begun over again it is not regular, whether the prisoner assents to it or not, instead of having the witnesses examined anew viva voce, to simply call and swear them over again and then read over the notes of their evidence taken by the judge on the first trial, even if, then, each witness is asked if what was read was true, and is submitted at the pleasure of the counsel on either side to fresh oral examination and cross-examination: R. v. Bertrand, 10 Cox, 618.

Although each juryman may apply to the subject before him that general knowledge which any man may be supposed to have, yet if he be personally acquainted with any material particular fact he is not permitted to mention the circumstance privately to his fellows, but he must submit to be publicly sworn and examined, though there is no necessity for his leaving the box, or declining to interfere in the verdict: R. v. Rosser, 7 C. & P. 648; 2 Taylor, Ev. par. 1244; 3 Burn 96; see R. v. Petrie, 20 O. R. 317.

A juror was summoned in error but not returned in the panel, and in mistake was sworn to try a case during the progress of which these facts were discovered. The jury were discharged and a fresh jury constituted: R. v. Phillips, 11 Cox, 142. It is not necessary when a jury are discharged without giving a verdict to state on the record the reason why they are so discharged: R. v. Davison, 2 F. & F. 250, 8 Cox, 360.

The rule is that the right to discharge the jury without giving a verdict ought not to be exercised except in some

case of physical necessity, or where it is hopeless that the jury will agree, or where there have been some practices to defeat the ends of justice. If after the prisoner is given in charge, though before any evidence is given, it is discovered that a material witness for the prosecution is not acquainted with the nature of an oath, it is not a sufficient ground for discharging the jury so that the witness might be instructed before the next assizes upon that point, and a verdict of acquittal must be entered if the prosecution has no other sufficient evidence: R. v. Wade, 1 Moo. 86. R. v. White, 1 Leach, 430, seems a contrary decision, but is now overruled by the above last cited case. Where during the trial of a felony, it was discovered that the prisoner had a relation on the jury, Erskine, J., after consulting Tindal, C.J., held that he had no power to discharge the jury but that the trial must proceed: R. v. Wardle, Car. & M. 647.

If it appear during a trial that the prisoner, though he has pleaded not guilty, is mad, the judge may discharge the jury of him, that he may be tried after the recovery of his understanding: 1 Hale, 34: see post, sections 737, et seq., and remarks thereunder.

In Kinloch's case, Fost. 16, 23, et seq., it was held that a jury can be lawfully discharged in order to allow the defendant to withdraw his plea of "not guilty," and to plead in bar.

On a writ of error the record showed that on the trial the judge discharged the jury after they were sworn, in consequence of the disappearance of a witness for the crown, and the prisoner was remanded. Held, that the judge had a discretion to discharge the jury which a court of error could not review; that the discharge of the jury without a verdict was not equivalent to an acquittal, and that the prisoner might be put on trial again: Jones v. R., 3 L. N. 309.

A jury had been sworn on the previous day to try the prisoner on an indictment for murder. In the course of the

trial one of the jurors was discharged because he came from a house where there was small-pox.

The case being resumed before a new jury the prisoner contended that, having been once put in jeopardy of his life, no new trial could be had. The court overruled the objection: R. v. Considine, 8 L. N. 307.

A juror may be a witness. He is then sworn without leaving the jury box: 2 Taylor, Ev., par. 1244. See R. v. Rosser, 7 C. & C. 648. Under s. 675 it seems that the whole of s. 7 of the 27 & 28 V. c. 41 (1864), is still in force in the Province of Quebec, (see remarks under s. 664, ante), except s-s. 8 & 9 thereof, which are repealed by 49 V. c. 4 (D.).

PROCEEDINGS WHEN PREVIOUS CONVICTION CHARGED.

676. The proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows, that is to say: the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence, and if he pleads not guilty, or if the court orders a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concerning such subsequent offence only; and if the jury finds him guilty, or if on arraignment he pleads guilty, he shall then, and not before, be asked whether he was so previously convicted as alleged in the indictment; and if he answers that he was so previously convicted the court may proceed to sentence him accordingly, but if he denies that he was so previously convicted, or stands mute of malice, or will not answer directly to such question, the jury shall then be charged to inquire concerning such previous conviction or convictions, and in such case it shall not be necessary to swear the jury again, but the oath already taken by them shall, for all purposes, be deemed to extend to such last mentioned inquiry: Provided, that if upon the trial of any person for any such subsequent offence, such person gives evidence of his good character, the prosecutor may, in answer thereto, give evidence of the conviction of such person for the previous offence or offences before such verdict of guilty is returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence. R. S. C. c. 174, s. 207.

See s. 628, ante, and remarks thereunder: R. v. Woodfield, 16 Cox, 314.

WITNESSES' ATTENDANCE.

677. Every witness duly subpoenaed to attend and give evidence at any criminal trial before any court of criminal jurisdiction shall be bound to attend and remain in attendance throughout the trial. R. S. C. c. 174, s. 210.