ÆäÀÌÁö À̹ÌÁö
PDF
ePub

counsel for the prisoner addresses the jury, and what has just been said on the defence generally applies to the address to the jury, whether made before or after the exam ination of witnesses.

A person on his trial defended by counsel is not entitled to have his explanation of the case to the jury made through the mouth of his counsel, but may, at the conclusion of his counsel's address, himself address the jury and make such statements subject to this, that what he says will be treated as additional facts laid before the court, and entitling the prosecution to the reply.-R. v. Shimmin, 15 Cox, 122. See reporter's note.

In R. v. Weston, 14 Cox, 346, the prisoner's counsel was allowed to make a statement on behalf of his client.

Per Stephen J.-A prisoner may make a statement to the jury, provided he does so before his counsel's address to the jury.-R. v. Masters, 50 J. P. 104.

A prisoner on his trial defended by counsel may, at the conclusion of his counsel's address, make a statement of facts to the jury, but the prosecution will be entitled to reply.-The Queen v. Rogers, 2 B. C. L. R. 119.

In R. v. Taylor, 15 Cox, 265, the prisoners were allowed to address the jury after their counsel. See R. v. Mill house, 15 Cox, 622, where the judge said that could be allowed only where the prisoner called no witnesses.

The Reply. If the defendant brings no evidence, the counsel for the prosecution is not allowed to reply, except if he be, according to sec. 179 of the Procedure Act, the attorney general or solicitor general, or a Queen's counsel acting on behalf of the crown. And in the interpretation of this clause, these words "acting on behalf of the crown" must be read as applying to the attorney-general or solicitorgeneral, as well as to a Queen's counsel, so that, if not act

ing on behalf of the crown in a case, the attorney general or solicitor general would not be entitled to a reply, if no evidence is adduced by the defence.-3 Russ. 354, note.

On this privilege to reply, in cases instituted by the crown, it is said in 1 Taylor, Ev., par. 362: “But as this is a privilege, or rather a prerogative which stands opposed to the ordinary practice of the courts, the true friend of justice will do well to watch with jealousy the parties who are entitled to exercise it. Mr. Horne, so long back as the year 1777, very properly observed that the attorney-general would be grievously embarrassed to produce a single argument of reason or justice on behalf of his claim, and, as the rule which precludes the counsel for the prosecution from addressing the jury in reply, when the defendant has called no witnesses, has been very long thought to afford the best security against unfairness in ordinary trials, this fact raises a natural suspicion that a contrary rule may have been adopted, and may still be followed in State prosecutions, for a different and less legitimate purpose. It is to be hoped that ere long this question will receive the consideration which its importance demands, and that the Legislature, by an enlightened interference, will introduce one uniform practice in the trial of political and ordinary offenders."

If the defendant gives any evidence, whether written or parol, the counsel for the prosecution has a right to reply. If witnesses are called merely to give evidence to character, the counsel for the prosecution is strictly entitled to reply, though in England, in such cases, the practice is not to reply.

In R. v. Bignold, 4 D. & R. 70, Lord Tenderden revived an important rule, originally promulgated by Lord Kenyon, and by which a reply is allowed to the counsel

for the prosecution, if the counsel for the defendant, in his address to the jury, states any fact or any document which is not already in evidence, although he afterwards declines to prove the fact or put it in writing.-5 Burn, 357. See R. v. Trevelli, 15 Cox, 289; R. v. Stephens, 11 Cox, 669; R. v. Burns, 16 Cox, 195.

[ocr errors]

Evidence in reply.—Whenever the defendant gives evidence to prove new matter by way of defence, which the crown could not foresee, the counsel for the prosecution is entitled to give evidence in reply to contradict it, but then he does not address the jury in reply before going into that evidence. The general rule is that the evidence in reply must bear directly or indirectly upon the subject-matter of the defence, and ought not to consist of new matter unconnected with the defence, and not tending to controvert or dispute it. This is the general rule, made for the purpose of preventing confusion, embarrassment and waste of time; but it rests entirely in the discretion of the judge whether it ought to be strictly enforced or remitted, as he may think best for the discovery of truth and the administration of justice.-2 Phillips' Ev. 408; R. v. Briggs, 2 M. & Rob, 199; R. v. Frost, 9 C. & P. 159. Where the counsel for the crown has, per incuriam, omitted to put in a piece of evidence before commencing his reply, and the course of justice might be interfered with if the evidence were not given, the court may permit the evidence to be given.-R. v. White, 2 Cox, 192. If evidence of his good character is given on behalf of a prisoner, evidence of his bad character may be given in reply: R. v. Rowton, L. & C. 520, overruling R. v. Burt, 5 Cox, 284.

Defendant's reply on evidence adduced in answer to his own. When evidence is adduced for the prosecution in reply to the defendant's proof, the defendant's counsel

has a right to address the jury on it, confining himself to its bearings and relations, before the general replying address of the prosecution.-Dickinson's Quart. Sess. 565.

Witnesses may be recalled.-R. v. Lamere, 8 L. C. J. 380; R. v. Jennings, 20 L. C. J. 291. 2 Taylor, Ev. 1331.

Charge by the judge to the jury.—It is the duty of the president of the court, the case on both sides being closed, to sum up the evidence. His address ought to be free from all technical phraseology, the substance of the charge plainly stated, the attention of the jury directed to the precise issue to be tried, and the evidence applied to that issue. It may be necessary, in some cases, to read over the whole evidence, and, when requested by the jury, this will, of course, be done; but in general, it is better merely to state its substance.-5 Burn, 357; 1 Chit. 632.

[ocr errors]

In 12 Cox, 549, the editors reported a case from the United States, preceding it with the following remarks: Although an American case, the principles of the criminal law being the same as in England, and the like duties and powers of the judge being recognized, a carefully prepared judgment on an important question that may arise here at some time has been deemed worthy of a place for any future reference."

The case is Commonwealth v. Magee, Philadelphia, December, 1873, decided by Pierce, J., who held that a judge may, where the evidence is clear and uncontradicted, and the character of the witnesses unimpeached and unshaken, tell the jury in a criminal case that it is their duty to convict,

For the same reason which induced the editors of Cox's Reports to insert this case in their columns, the full report thereof is given here.

"This was a motion for a new trial and in arrest of judgment on the ground of misdirection in the charge to the jury.

[ocr errors]

'Pierce, J., in his judgment, said: The evidence against the defendant was clear and explicit by two witnesses, who testified to having bought and drunk liquors at the defendant's place within this year. The defendant offered no testimony.

[ocr errors]

"There was nothing in the manner or matter of the witnesses to call in question their veracity, or in the slightest degree to impugn their evidence; the counsel for the defence did not in any manner question the truth of their evidence, but confined his address to the jury to an attack upon the law and the motives of the prosecutors. Were the jury, under these circumstances, at liberty to disregard their oaths and acquit the defendant? They had been solemnly sworn to try the case according to the evidence, and a regard to their oaths would lead them but to one conclusion, the guilt of the defendant. The counsel for the Commonwealth states the charge to have been: 'The judge declared that he had no hesitation in saying, that, under the evidence, it was the duty of the jury to render a verdict of guilty under the bill of indictment.' But no matter which form of expression was used, it was the evidence to which I had just called their attention that indicated their duty, and in view of which the remark was made. I perceive no error in this. It was not a direction to the jury to convict the defendant. It was simply pointing them to their duty. Jurors are bound to observe their oaths of office, whether it will work a conviction or acquittal of a defendant, and they are not at liberty to disregard uncontradicted and unquestioned testimony at their mere will and pleasure. Where, however, the testimony is contra

EEE

« ÀÌÀü°è¼Ó »