pleaded, the jury, with the consent of the attorney-general, was discharged, and the prisoners allowed to plead de novo, specially; and they were afterwards tried by another jury. R. v. Alexander & Charles Kinloch, Fost. 16, 1 Wils. 157. On the other hand, where a person is indicted for a misdemeanor, and upon the evidence it turns out to be a felony, the judge may discharge the jury, and order the party to be indicted for the felony; 14 & 15 Vict. c. 100, s. 12; or the jury may find him guilty of the misdemeanor. Id. And lastly, where an indictment for a misdemeanor was clearly bad upon the face of it, Abbott, C.J., discharged the jury from giving any verdict upon it. R. v. Deacon, Ry. & M. N. P. C. 27. R. v. Hollis, 2 Stark. 536.

Delivery of the verdict.] If the jury retire, then, upon their afterwards returning into court, the clerk of arraigns at the assizes, or the clerk of the peace at sessions, addresses them thus: "Gentlemen of the jury, answer to your names;" he then calls over their names, and the jurors respectively answer. They should all be in court at the time the verdict is given.

As soon as the jury are ready to deliver their verdict, the clerk of arraigns or clerk of the peace addresses them thus: "Gentlemen, have you agreed upon your verdict? Who shall say for you? Your foreman. How say you, do you find the prisoner [or defendant] A. B. guilty of the [felony] whereof he stands indicted, or not guilty? Do you find the prisoner C. D. guilty of the [felony] whereof he stands indicted, or not guilty."

The jurors answer "guilty," or "not guilty;" or they may say, "We find him guilty of stealing, but not in the dwelling house to the value of five pounds," or "not guilty of burglary, but guilty of the stealing," or the like. The verdict must be delivered openly in court. 2 Hawk. c. 47, s. 2. Co. Lit. 227. 3 Inst. 110.

For a less offence than is charged.] There are several cases where a greater offence includes a less; and upon an indictment for the greater offence, the jury may find the prisoner guilty of the less. As for instance,—

Upon an indictment for murder, the jury may find the prisoner not guilty of the murder, but guilty of manslaughter. 2 Hawk. c. 47, 88. 4, 5.

Upon an indictment for burglary and larceny, the jury may find the prisoner not guilty of the burglary, but guilty of the larceny. 2 Hawk. c. 47, s. 11.

Upon an indictment for breaking a house, shop, or warehouse, and stealing therein, the jury may find the prisoner not guilty of the breaking and entering, but guilty of the simple larceny, or (in the case of a dwelling-house) of stealing in the dwelling-house to the value of 51.

Upon an indictment for stealing from a dwelling-house to the value of 51., or some person therein being put in fear, the jury may find the prisoner guilty of the simple larceny. See 2 Hawk. c. 47, s. 12.

Upon an indictment for robbery, the jury may find the prisoner not guilty of the robbery, but guilty of stealing from the person, R. v. Walls et al., 2 Car. & K. 214, or guilty of an assault with intent to rob. 14 & 15 Vict. c. 100, s. 11.

Upon an indictment for any felony or misdemeanor, the jury may find the prisoner not guilty of the felony or misdemeanor, but guilty of an attempt to commit it. 14 & 15 Vict. c. 100, 8. 9. Formerly, upon all indictments on stat. 1 Vict. c. 85, for stabbing, cutting, wounding, &c., or for any felony which included an assault, the defendant might be acquitted of the felony, and found guilty of the assault; 1 Vict. c. 85, 8. 11; but that section is now repealed; indeed it was no longer necessary, when the more general enactment above-mentioned was made, that upon an indictment for any felony, &c., the defendant may be found guilty of an attempt to commit it.

For another offence than that charged.] Upon an indictment for embezzlement, the jury may find the prisoner not guilty of the embezzlement, but guilty of simple larceny, or guilty of larceny as a clerk or servant. 14 & 15 Vict. c. 100, 8. 13.

Upon an indictment for larceny, the jury may find the prisoner not guilty of the larceny, but guilty of embezzlement. 14 & 15 Vict. c. 100, s. 13.

Upon an indictment for a larceny at one time, the jury may find the prisoner guilty generally, although the prosecutor gave evidence of three different takings of parcels of the goods within six months. See 14 & 15 Vict. c. 100, s. 17. See ante, p. 95.

Upon an indictment against two or more for jointly receiving stolen goods, the jury may find all or any of them guilty, who shall be proved to have separately received any portion of the goods, knowing the same to have been stolen. 14 § 15 Vict. c. 100, 8. 14.

Upon an indictment against a woman for murder of her child, the jury may find her not guilty of the murder, but guilty of concealing its birth. 9 G. 4, c. 31, s. 14.

For the offence charged, though another proved.] Upon an indictment for obtaining money by false pretences, the jury may find the prisoner guilty, although the offence upon the evidence turn out to be larceny. 7 & 8 G. 4, c. 29, s. 53. But if he be indicted for a larceny, the jury cannot find him guilty, if the offence upon the evidence turn out to be an obtaining of money or goods by false pretences.

Upon an indictment for a misdemeanor, the jury may find the defendant guilty, though the evidence prove a felony. 14 15 Vict. c. 100. s. 12. See ante, p. 95. The court, however, may in such a case discharge the jury, and order the defendant to be indicted for the felony. Id.

Upon an indictment against a party as principal in a felony or misdemeanor, the jury may find him guilty, although the evidence prove that he was not present at the time the offence was committed, but merely incited, procured, or advised another party to commit it. See ante, pp. 16. 96.

Upon an indictment against a man as principal in the first degree, the jury may find him guilty, though the evidence prove him to have been a principal in the second degree; and upon an indictment against a man as principal in the second degree, the jury may find him guilty, although the evidence prove him to have been a principal in the first degree. Ante, p. 13. Where two were indicted for murder, A. in the first count being indicted as principal in the first degree, and B. as being present aiding and abetting, and in the second count B. was indicted as principal in the first degree, and A. with being present aiding and abetting; and the jury found them guilty, but said that they were not satisfied as to which of them actually committed the murder: the judges (Maule, J., dis.) held, that the jury were not bound to find the defendants guilty on one of the counts only, but might find them guilty on both. R. v. Downing et al., 1 Den. CC. 52.

On several counts.] By stat. 11 & 12 Vict. c. 46, s. 3, which enables a prosecutor to include a count for stealing money or goods, and a count for receiving the same knowing them to have been stolen, in the same indictment against the same person or persons,-it is enacted, that "where any such indictment shall be preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury, who shall try the same, to find a verdict of guilty, either of stealing the property or of receiving it knowing it to have been stolen; and if such indictment shall have been proferred and found against two or more persons, it shall be lawful for the jury who shall try the same, to find all or any of the said persons guilty, either of stealing the property or of receiving it knowing it to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving it knowing it to have been stolen."

In other cases, where there are two or more counts in the indictment, if the prosecutor be not put to his election to say on which he will proceed, the jury may convict on any one of them, or on all. If, however, they find a general verdict of guilty on all, and one count turns out to be bad,—although

this cannot be made matter of objection in arrest of judgment, Grant v. Astle, 2 Doug. 730. Ayrey et al. v. Fearnsides et al., 4 Mus. § W. 168. Lewin v. Edwards, 1 Dowl. N. C. 639. Chadwick v. Trower et al., 8 Law J. 286 ex; it will be bad on error. O'Connell's case, Ho. Lords, 1844. In order to avoid this, it is usual to have a separate judgment on each count, and as all will take effect at the same time, the punishments will not be cumulative, and if one of the counts be bad, it will not affect the others. Where in one count A. B. was indicted for the murder of J. N. by a blow of a stick, and C. D. and E. F. indicted as being present aiding and abetting, and in a second count C. D. was indicted for the murder by throwing a stone, and A. B. and E. F. as being present aiding and abetting, and a general verdict given: this was objected to, as it left it uncertain whether the stick or stone caused the death; but the judges held it immaterial, the mode of death in both counts being substantially the same. R. v. O'Brian et al., 1 Den. CC. 9. See also R. v. Downing et al., supra.

Against some of several.] If several be jointly indicted for an offence, which in its nature may be committed by one person or several, the indictment is considered in law as a several indictment against each, and one may be convicted on it and the rest acquitted. 2 Hawk. c. 47, s. 8; R. v. Taggart, 1 Car & P. 201. But there are certain offences which cannot be committed by less than a certain number of persons: for instance, a riot, which cannot be committed by less than three persons; and a conspiracy, not by less than two. And therefore if several be indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it be charged in the indictment and proved, that they committed the riot together with some other person not tried upon that indictment. 2 Hawk. c. 47, s. 8. So, if upon an indictment for a conspiracy, the jury acquit all the defendants but one, they must acquit that one also, however criminal they may think him, unless it be charged in the indictment and proved, that he conspired with some other person, not tried upon that indictment. Id. So if a principal, and accessory either before or after the fact, be tried together upon the same indictment, if the jury acquit the principal, they must acquit the accessory also; but they may acquit the accessory, and find the principal guilty.

Special verdict.] The jury may find a special verdict in criminal cases, as well as in civil actions; they may do so even in capital cases. 2 Haw. c. 47, ss. 3, 9. But in modern practice this is very unusual.

SECTION IV.

Judgment, &c.

I shall treat of the proceedings from the verdict to the judgment and allowance of costs, &c., under the following heads :

A new trial cannot be granted in a case of felony, even by the court of Queen's Bench. R. v. Mawbey, 6 T. R. 638. That court may indeed grant it in the case of a misdemeanor; Id. See R. v. Simmons, 1 Wils. 329; but they have always refused to do so, where the defendant has been acquitted; R. v. Brice, 2 B. § Ald. 606; R. v. Mann, 4 M. & S. 337; R. v. Cohen, 1 Stark. 516; R. v. Praed, 4 Burr. 2256; R. v. Reynell, 6 East, 315; and this even in the case of an indictment for non-repair of a highway. R. v. Silverton, 1 Wils. 298; R. v. Burbon, 5 M. § S. 392; but see R. v. Wandsworth, 1 B. § Ald. 63; R. v. Sutton, 5 B. § Ad. 52. In these latter cases, indeed, instead of granting a new trial, the court stayed the entry of judgment, until the prosecutor should have an opportunity of preferring and trying a fresh indictment, to prevent the parish from pleading the former acquittal in bar; and even this they have done in very few cases. court of oyer and terminer or general gaol delivery, however, or the court of quarter sessions, have no power to grant a new trial; at least such is generally understood to be the case. And where, upon an indictment for the non-repair of a bridge being tried on the crown side at the assizes, and the defendants convicted, they moved for a certiorari to remove the record into the court of King's Bench, in order that they might move for a new trial, the court refused it, Lord Ellenborough, C. J., saying,-"I would not have the notion for a moment entertained, that we have the power of entering into the merits of verdicts, and granting new trials, in proceedings before inferior jurisdictions. R. v. Inhabitants of Oxfordshire, 12 East,411. But where two persons were indicted at sessions for stealing oats, and convicted; and it appearing afterwards that, upon the jury