city of Quebec, in and for the said district of Quebec, on

the year of our Lord

, upon the oath of (insert the

names of the grand jurors) good and lawful men of the said district, now here sworn and charged to inquire for our Sovereign Lady the Queen, and for the body of the said district, it is presented in the manner following, that is to say: (this ends the caption).

Then the record continues to recite the indictment, etc., as follows, and by s. 726, may commence here :

District of Quebec.-The Jurors for our Lady the Queen present, that John Jones, on the fifth day of June, in the year of our Lord one thousand eight hundred and seventy, wilfully and unlawfully did kill and murder one Patrick Ray, whereupon the sheriff of the aforesaid district is commanded, that he omit not for any liberty in his bailiwick, but that he take the said John Jones, if he may be found in his bailiwick, and him safely keep to answer to the murder whereof he stands indicted. And afterwards, "to wit, at the same term of the said Court of Queen's Bench, before the said Court of Queen's Bench, on the said day of in the said year of our Lord here cometh the said John Jones under the custody of William Brown, Esquire, sheriff of the district aforesaid (in whose custody in the gaol of the district aforesaid, for the cause aforesaid, he had been before committed), being brought to the bar here in his proper person by the said sheriff, to whom he is here also committed. And he, the said John Jones, forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, saith that he is not guilty thereof, and therefore he puts himself upon the country. And the honourable George Irvine, AttorneyGeneral of our said Lady the Queen, who prosecutes for our said Lady the Queen in this behalf, doth the like. Therefore let a jury thereupon immediately come before the said

court of free and lawful men of the said district of Quebec, by whom the truth of the matter may be the better known, and who are not of kin to the said John Jones, to recognize upon their oath whether the said John Jones be guilty of the offence in the indictment above specified or not guilty; because, as well, the said George Irvine, who prosecutes for our said Lady the Queen in this behalf, as the said John Jones have put themselves upon the said jury. And the jurors of the said jury, by the sheriff for this purpose empannelled and returned-to wit (naming the twelve)being called, come, who to speak the truth of and concerning the premises being chosen, tried and sworn, upon their oath, · say that the said John Jones is guilty of the offence aforesaid on him above charged, in manner and form aforesaid as by the said indictment is above supposed against him. And thereupon it is forthwith demanded of the said John Jones, if he hath or knoweth anything to say why the said court here ought not, upon the premises and verdict aforesaid to proceed to judgment against him; who nothing further saith, unless he has before said. Whereupon, all and singular the premises being seen and fully understood by the said court here, it is considered and adjudged by the said court here that the said John Jones be taken to the common gaol of the said district of Quebec, from whence he came, and that he be taken from thence to the place of execution, on Friday, the day of , next ensuing, and there be hanged by the neck until he be dead; and the court orders and directs the said execution to be done on the said John Jones in the manner provided by law.

If the defendant against whom an indictment has been found happen to be present in court, or in the custody of the court, he may at once be arraigned upon the indictment without previous process: 1 Chit. 338; Archbold, 78.

Then the record, when made up, instead of the words "whereupon the sheriff of the aforesaid district is com manded," etc., as in the above form, must read "Where

term of the said Court of Queen's Bench, before the said Court of Queen's Bench here cometh the said John Jones under the custody of William Brown, Esquire, sheriff of the district aforesaid (in whose custody, in the gaol of the district aforesaid, he stood before committed)," etc.

In the report of the case of Mansell v. R., Dears & B. 375, may be seen a lengthy form of a record with all the proceedings on the challenges of jurors; also in R. v. Fox, 10 Cox, 502; Whelan v. R., 28 U. C. Q. B. 2; Holloway v. R., 2 Den. 289; and 4 Blacks. Appendix.

By s. 673 no formal adjournment need be entered.

In the case of Whelan v. R., cited supra, it was held in Upper Canada that if, notwithstanding s. 52, c. 99, Con. Stat. Can), (now s. 726 of this Code) a formal caption is prefixed to the indictment this caption may be rejected if it proves defective.

In R. v. Aylett, 6 A. & E. 247, note, and R. v. Marsh, 6. A. & E. 236, it was held that it is not necessary to name the grand jurors in the caption.

JURY RETIRING.

727. If the jury retire to consider their verdict they shall be kept under the charge of an officer of the court in some private place, and no person other than the officer of the court who has charge of them shall be permitted to speak or to communicate in any way with any of the jury without the leave of the court.

2. Disobedience to the directions of this section shall not affect the validity of the proceedings: Provided that if such disobedience is discovered before the verdict of the jury is returned the court, if it is of opinion that such disobedience has produced substantial mischief, may discharge the jury and direct a new jury to be sworn or empanelled during the sitting of the court, or postpone the trial on such terms as justice may require.

JURY UNABLE TO AGREE.

728. If the court is satisfied that the jury are unable to agree upon their verdict, and that further detention would be useless, it may in its discretion discharge them and direct a new jury to be empanelled during the sittings of the court, or may postone the trial on such terms as justice may require.

2. It shall not be lawful for any court to review the exercise of this discretion.

CRIM. LAW-54

PROCEEDINGS ON SUNDAY.

729. The taking of the verdict of the jury or other proceeding of the court shall not be invalid by reason of its happening on Sunday.

See remarks, ante, under s. 675. S. 729 removes a doubt that was raised in Winsor v. R., 10 Cox, 276; and R. v. Cropper, 2 Moo. 18.

The closing of the term discharges the jury from giving a verdict, and the defendant may be tried again: Newton's Case, 13 Q. B. 716; 3 Wharton, 3168.

That a witness is not sufficiently advanced in years or religiously instructed to understand the nature of an oath, if found out only after the jury has been sworn, is no ground for discharging a jury and ordering the trial to be postponed: R. v. Wade, 1 Moo. 86; R. v. Oulaghan, Jebb, 270. The case of R. v. White, 1 Leach, 430, does not support the summary given by the reporter.

JURY DE VENTRE INSPICIENDO.

730. If sentence of death is passed upon any woman she may move in arrest of execution on the ground that she is pregnant. If such a motion is made the court shall direct one or more registered medical practitioners to be sworn to examine the woman in some private place, either together or succes sively, and to inquire whether she is with child of a quick child or not. If upon the report of any of them it appears to the court that she is so with child execution shall be arrested till she is delivered of a child, or until it is no longer possible in the course of nature that she should be so delivered.

731. After the commencement of this Act no jury de ventre inspiciendo shall be empanelled or sworn.

This is the law in Ireland, 39 & 40 V. c. 78, s. 13, with the exception of the words " in some private place" which, it seems, were thought necessary in Canada. The oath to be administered to the medical practitioner or practitioners in open court may be as follows:

"You swear that you will search and try the prisoner at the bar whether she be with child of a quick child or not, and thereof a true verdict give according to your skill and understanding. So help you God." Quick with child is having conceived; with quick child is when the child is quickened: per Gurney, B., in R. v. Wycherley,

8 C. & P. 262; see R. v. Russell, 1 Moo. 356, and the reporter's note to R. v. Wycherley, ubi supra. S. 730 would seem to allow of the execution of a pregnant woman if the child has not quickened. That construction no court would give however. The law of England does not punish foeticide as a crime but it does not authorize it or legalise it. As a jury of matrons always did, formerly, the medical practitioner will always, when the woman is pregnant, report that she is with child of a quick child. Enceinte with a quick child, or quick with child, mean the same thing, says 2 Hale, 413. After the woman has been delivered, or when the time within which in the course of nature she should have been delivered, has elapsed she must be brought into court again to be sentenced de novo, or that a day be fixed for her execution : 1 Hale, 368. She could not, at common law, plead pregnancy a second time; but under s. 730 it seems that it could now be done.

NOLLE PROSEQUI. (New).

732. The Attorney-General may, at any time after an indictment has been found against any person for any offence, and before judgment is given thereon, direct the officer of the court to make on the record an entry that the proceedings are stayed by his direction, and on such entry being made all such proceedings shall be stayed accordingly.

2. The Attorney-General may delegate such power in any particular court to any counsel nominated by him.

The words "Attorney-General" include the SolicitorGeneral, s. 3.

On an indictment for a public nuisance or any offence of a public nature, or in which the public have an interest, the Attorney-General can proceed with the case if the private prosecutor refuses or neglects to do so: R. v. Wood, 3 B. & Ad. 657.

The Attorney-General may in his discretion, and should as a general rule, not give such a direction at the request of the defendant without hearing the private prosecutor, if any there is: R. v. Allen, 1 B. & S. 850; 1 Chit. 479; see R. v. Rowlands, 2 Den. 364.