6. The Record.

The following is the form of the record when made up :

Warwickshire Be it remembered that at [&c., as in the to wit. Scaption of the indictment, ante, pp. 76, 77: then copy the indictment to the end. Then state the arraignment, &c., thus: Afterwards to wit at the same sessions of the Lady the Queen of oyer and terminer [or sessions of the peace] holden as aforesaid on Friday the - day of in the year of the reign aforesaid, the said A. B. being brought to the bar of the court here, and the indictment aforesaid being read unto him, and being demanded concerning the premises in the said indictment above specified whether he is guilty or not guilty thereof, saith that he is not guilty thereof, and thereof puts himself upon the country: therefore let a jury thereupon here immediately come before the said justices of the Lady the Queen, of free and lawful men of the county of Warwick aforesaid, by whom the truth of the matter may be the better known, and who are not of kin to the said A. B., to recognize upon their oath whether the said A. B. be guilty of the [felony and murder] in the said indictment aforesaid above specified, or not guilty: and the jurors of the said jury for this purpose by the sheriff of Warwickshire impanelled and returned, to wit G. H., [&c., stating the names of the jurors,] being called, come, who being elected, tried and sworn to speak the truth of and concerning the premises, upon their oath say that the said A. B. is guilty of the [felony and murder] aforesaid, on him above charged in manner aforesaid, as by the indictment aforesaid is above supposed against him: [And upon this it is forthwith demanded of the said A. B. if he hath or knoweth anything to say, wherefore the said justices here ought not upon the premises and verdict aforesaid to proceed to judgment and execution against him; who nothing further saith, unless as he before had said:] Whereupon all and singular the premises being seen, and by the said justices here fully understood, it is considered by the court here that the said A. B. [be taken to the gaol of the said Lady the Queen of the said county of Warwick, from whence he came, and from thence to the place of execution, and there be hanged by the neck until he be dead.

Where there are two or more counts in the indictment, care must be taken in entering the verdict and judgment. Where an indictment against principal and receiver, contained two counts against the principal, one for stealing a bank note, and

k

the other for stealing a pocket book, and the receiver was charged with knowingly receiving them; and the principal was found guilty on the second count only, and the receiver found guilty" of the offence aforesaid," this was holden bad, for it was uncertain to which offence the finding referred. R. v. Graham, 1 Leach, 82; 2 Hawk. c. 25, 8. 72, n. ; and see R. v. Salamans, 1 T. R. 149. So where there were two counts for felony in the indictment, and the jury process was to try whether the prisoner was guilty "of the felony aforesaid,” and the verdict was, that he is guilty "of the felony aforesaid; this was holden bad, for the word "felony " is not nomen collectivum. 10 Shaw's J. P. 327.

SECTION V.

Appeal to the Criminal Appeal Court.

The court and its judges.] The establishment of a criminal court of appeal, by stat. 11 & 12 Vict. c. 78, is the greatest improvement which has perhaps ever been made in the administration of our criminal law, so far as relates to indictable offences. It gives a defendant the full effect of a writ of error, speedily, and with little expense to either party; and the doubt or difficulty being pointed out by the judge who tried the case, affords the judges of the appeal court the best assurance they can have, that no frivolous objections will be submitted to them.

The judges of the court comprise the whole of the fifteen judges of the courts of common law at Westminster,-the justices of the court of Queen's Bench, the justices of the common pleas, and the barons of the exchequer. But by the 3rd section of the Act "the jurisdiction and authorities by this Act given to the said justices of either bench, and barons of the exchequer, shall and may be exercised by the said justices and barons, or five of them at the least, (of whom the Lord Chief Justice of the court of Queen's Bench, the Lord Chief Justice of the court of common pleas, and the Lord Chief Baron of the court of exchequer, or one of such chiefs at least, shall be part), being met in the exchequer chamber or other convenient place. 11 & 12 Vict. c. 78, s. 3.

Appeal, in what cases.] By stat. 11 & 12 Vict. c. 78, s. 1, "when any person shall have been convicted of any treason, felony, or misdemeanor, before any court of oyer and terminer or gaol delivery, or court of quarter sessions, the judge or commissioner or justices of the peace before whom the case shall have been tried, may, in his or their discretion, reserve any question of law, which shall have arisen on the trial, for

the consideration of the justices of either bench and barons of the exchequer ;-and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided, as he or they may think fit;-and in either case the court, in its discretion, shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case may be." Although justices of the peace are alone mentioned here with reference to a court of quarter sessions, yet it has been holden that a recorder at a borough sessions may reserve a question for the opinion of the judges of this appeal court. R. v. Masters, 2 Car. & K. 930.

R. v.

Under this section, the judge, justices, or recorder may reserve "any question of law, which shall have arisen upon the trial;" even a question upon the form of the indictment. Vide infra; and see R. v. Webb, 2 Car. & K. 933; R. v. Martin, Id. 950. So, a question which at the trial was made the subject of a motion in arrest of judgment, may be reserved. Martin, 2 Car. & K. 950. But the court, under this Act, have no authority to review the judgment given by any judge, justices, or recorder upon demurrer; R. v. Faderman et al., 19 Law J. 147 m; indeed it is now declared, by a rule of this court, "that no case be heard upon any demurrer to the pleadings." Rule Tr. T. 13 Vict. 19 Law J. xv.

Case] In order to obtain the opinion of the court of appeal "the judge or commissioner or court of quarter sessions shall state, in a case signed in the manner now usual, the question or questions of law which shall have been so reserved, with the special circumstances upon which the same shall have arisen; and such case shall be transmitted to the said justices and barons." 11 & 12 Vict. c. 78, s. 2.

The case must briefly state the question or questions of law reserved, and such facts only as raise the question or questions submitted; if the question turn upon the indictment, or upon any count thereof, then the case must set forth the indictment, or the particular count. It must state, also, whether judgment on the conviction was passed, or postponed, or the execution of the judgment respited, and whether the person convicted be in prison or has been discharged on recognizance of bail to appear and receive judgment, or to render himself in execution. Rule Tr. T. 13 Vict. 19 Law J. xv.

The original case, signed by the judge, or commissioner, or chairman of sessions, and seventeen copies of the same, one for each judge, and one for each party, shall be delivered to the clerk of the court at the exchequer chamber, Westminster,

at least four days before the day appointed for the sitting of the court; and the fee thereon, payable to the clerks of the said judges, shall not exceed the fee payable on demurrer or other paper books [28.] as contained in the table of fees allowed and sanctioned by the judges, pursuant to stat. 1 Vict. c. 30. Rule Tr. T. 13 Vict. 19 Law J. xv.

Also, when any case is intended to be argued by counsel or by the parties, notice thereof must be given to the clerk of the court, at least two days previously to the sitting of the court. Rule Tr. T. 13 Vict. 19 Law J. xv.

Hearing and judgment.] Upon the case being thus transmitted, "the said justices and barons shall have full power and authority to hear and finally determine the said question or questions, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment or inquisition on the trial whereof such question or questions have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the said justices and barons the party convicted ought not to have been convicted, or to arrest the judgment,-or order judgment to be given thereon at some other session of oyer and terminer or gaol delivery, or other sessions of the peace, if no judgment shall have been before that time given, as they shall be advised, or to make such other order as justice may require. 1112 Vict. c. 78, s. 2.

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If the case be argued by counsel, they must confine themselves to the case as stated, and argue it upon the facts therein mentioned. R. v. Smith, 2 Car & K. 882. And if the judge, chairman, or recorder who reserved the case, shall have omitted any matter which may be deemed material, the counsel, before the case comes on for argument, should apply to him to insert it. Id.

Also, the judges shall have the power, if they think fit, to cause the case to be sent back for amendment; and thereupon the same shall be amended accordingly, and judgment shall be delivered after it shall have been amended. 11 & 12 Vict. c. 78, 8. 4.

The "judgment or judgments of the said justices and barons shall be delivered in open court, after hearing counsel or the parties, in case the prosecutor or the person convicted shall think it fit that the case shall be argued, in like manner as the judgments of the superior courts of common law at Westminster are now delivered." 11 & 12 Vict. c. 78, s. 3.

Subsequent proceedings.] "Such judgment and order, if any, of the said justices and barons, shall be certified under the hand of the presiding chief justice or chief baron, to the

clerk of assize or his deputy, or to the clerk of the peace or his deputy, as the case may be, who shall enter the same on the original record in proper form; and a certificate of such entry, under the hand of the clerk of assize or his deputy, or the clerk of the peace or his deputy, as the case may be, in the form, as near as may be or to the effect mentioned in the schedule annexed to this Act, with the necessary alterations to adapt it to the circumstances of the case, shall be delivered or transmitted by him to the sheriff or gaoler in whose custody the person convicted shall be; and the said certificate shall be a sufficient warrant to such sheriff or gaoler, and all other persons, for the execution of the judgment, as the same shall be so certified to have been affirmed or amended, and execution shall be thereupon executed on such judgment,-and for the discharge of the person convicted from further imprisonment, if the judgment shall be reversed, avoided, or arrested, and in that case such sheriff or gaoler shall forthwith discharge him, and also the next court of oyer and terminer and gaol delivery or sessions of the peace shall vacate the recognizance of bail, if any;-and if the court of oyer and terminer and gaol delivery or court of quarter sessions shall be directed to give judgment, the said court shall proceed to give judgment at the next session.

The following is the form, given in the schedule to the Act, of the

Certificate of the Clerk of Assize or Clerk of the Peace.

Whereas at the session of the peace for the county of held on, before — and others their fellows, [or at the session of oyer and terminer and gaol delivery held for the county of on, before, among others, Sir A. B., knight, one of the justices of the court of and [here name the quorum commissioners,] justices of oyer and terminer and gaol delivery,] A. B., late of - labourer, having been found guilty of felony, and judgment thereupon given, that [state the substance], the court before whom he was tried reserved a certain question of law for the consideration of the justices of either bench and the barons of the exchequer, and execution was thereupon respited in the meantime:

This is to certify, that the said justices and barons having met in the exchequer chamber at Westminster, on the day of it was considered by the said justices and barons there that the judgment aforesaid should be annulled, and an entry made on the record, that the said A. B. ought not, in the judgment of the said justices and barons, to have