Taking the plea. Standing mute. disused, unless it be adopted in order to distinguish between two or more prisoners who are being arraigned at the same time. Nor is the prisoner now asked how he will be tried, it being taken for granted that he will be tried by a jury. He is to be brought to the bar without irons, or any manner of shackles or bonds, unless there is evident danger of escape. In felonies he must be placed at the bar of the court, though in misdemeanors this does not seem necessary (b). If several defendants are charged in the same indictment, they ought all to be arraigned at the same time. It is usual, for convenience' sake, to arraign several prisoners immediately in succession, and then to proceed to the trial of one, the rest being put down for the time. The indictment having been read to the prisoner, the clerk of arraigns, or clerk of the peace, or other proper officer of the court, demands of him, "How say you, John Styles, are you guilty or not guilty?" One of three courses will then be taken by the prisoner. He will either (a.) Stand mute. (b.) Confess, or say that he is guilty. (c.) Plead. Standing mute, that is, not answering at all, or answering irrelevantly. In former times, if, in cases of felony, this standing mute was obstinate, the sentence of peine forte et dure followed (c); in treason and misdemeanor the standing mute was equal to a conviction. Later, in every case it had the force of a conviction (d). If the prisoner was dumb ex visitatione Dei, the trial proceeded as if he had pleaded not guilty. But now, if the prisoner stands mute of malice, or will not answer directly to the indictment or information, the court (b) R. v. Lovett, 9 C. & P. 462. (c) v. Reeves's Hist. of Eng. Law, ii. 134, iii. 133, 250, 418. may order the proper officer to enter a plea of not guilty on behalf of such person; and the plea so entered has the same force and effect as if the person had actually so pleaded (e). If it is doubtful whether the muteness be of malice or ex visitatione Dei, a jury of any twelve persons present may be sworn to discover this. If they find him mute of malice, 7 & 8 Geo. 4, c. 28, will apply; if mute ex visitatione Dei, the court will use such means as may be sufficient to enable him to understand the charge and make his answer; or if this be found impracticable, a plea of not guilty will be entered and the trial proceed. In the event of a doubt arising as to the sanity of a Doubt as to prisoner at the time of his arraignment, a jury will be sanity of prisoner at sworn to ascertain the state of his mind. If they find time of him insane, so that he cannot be tried on the indict- arraignment. ment, it is lawful for the court before whom he is brought to be arraigned to direct such finding to be recorded; and thereupon to order such person to be kept in strict custody until Her Majesty's pleasure be known. If he does not seem able to distinguish between a plea of guilty and not guilty, this is enough to justify the jury in finding him of unsound mind. So also if he has not sufficient intellect to comprehend the nature or course of proceedings, so as to make a proper defence, and challenge jurors, and the like (ƒ). It will be remembered that although the prisoner was sane when the crime was committed, if he appears to be insane at the time of arraignment (or indeed at any subsequent period), the trial will be deferred until he has recovered his reason (g). We may notice here that no trial for felony can be Presence of (e) 7 & 8 Geo. 4, c. 28, s. 2. (f) R. v. Pritchard, 7 C. & P. 363; R. v. Berry, L. R. 1 Q. B. 447; 45 L. J. (M.C.) 123. (g) v. 40 Geo. 3, c. 94, s. 2. Insanity at the time of the commission of the crime is quite another consideration, and is treated of elsewhere. p. 20. V. accused at the trial. had except in the presence of the prisoner. But in cases of misdemeanor, after the defendant has pleaded, the trial may go on, though he is not present. Thus, in a recent case of perjury, when the defendant took ill, the trial proceeded during his temporary absence (h). In indictments or informations for misdemeanor in the Queen's Bench, the accused may appear by attorney. CONFESSION. If the accused makes a simple, unqualified confession that he is guilty of the offence charged in the indictment, if he adheres to this confession, the court has nothing to do but to award judgment, generally hearing the facts of the case from the prosecuting counsel. But the court usually shews reluctance to accept and record such confession in cases involving capital or other great punishment; often it advises the prisoner to retract the confession and plead to the indictment. The reason of this is obvious, the defendant may not fully understand the nature of the charge, he may be actuated by a morbid desire for punishment, &c. When the prisoner has pleaded guilty, and sentence has been passed, he cannot retract his plea and plead not guilty (). On the other hand, a prisoner who has pleaded not guilty may, by leave of the court, on the advice of his counsel or otherwise, withdraw that plea and plead guilty (j). A free and voluntary confession by the defendant before the magistrate, if duly made and satisfactorily proved, is sufficient to warrant a conviction without further corroboration; but, of course, the whole of the confession must be taken into account, the part favourable to the prisoner as well as that against him. This confession, as also any free or voluntary confession. (h) R. v. Castro, L. R. 5 Q. B. D. 490. (i) R. v. Sell, 9 C. & P. 346. (j) v. R. v. Brown, 17 L. J. (M.C.) 145. made to any other person, is merely evidence (though if undisputed no other evidence may be needed); and is to be widely distinguished from the confession in court or plea of guilty. In connection with this subject we must advert to Queen's the case of one of several co-defendants turning Queen's evidence. evidence. When sufficient evidence of a felony cannot be obtained from other quarters, and when it is perceived that the testimony of one of the accused would supply this defect, it is usual for the committing magistrate to hold out hope to this one that if he will give evidence so as to bring the others to justice, he himself will escape punishment. The approval of the presiding judge will have to be obtained (k). Even during the trial it sometimes happens that the counsel for the prosecution, with the consent of the court, when such a course is necessary to secure a conviction, takes one of the defendants out of the dock and puts him in the witness-box; such prisoner, of course, obtaining a verdict of acquittal (). But as we shall see hereafter more fully, the evidence of an accomplice is to be regarded with suspicion, and requires corroboration (m). (k) R. v. Rudd, 1 Leach, 115. l'leas. Their order. How many pleas may be resorted to. CHAPTER XI. PLEAS. Ir the defendant neither stands mute nor confesses, he pleads, that is, he alleges some defensive matter. The learning on the subject of the different pleas has become to a great extent a matter of history rather than of practice, on account of the comprehensive character of the plea of the general issue of not guilty, and also on account of the right to move in arrest of judgment. The following are the names of the pleas in the order in which they should be pleaded: i. Plea to the jurisdiction, ii. Plea in abatement, iii. Special pleas in bar, (a.) Autrefois acquit. (b.) Autrefois convict. -(c.) Autrefois attaint. (d.) Pardon. iv. General issue of not guilty. termed "dilatory pleas." Each of these will be considered separately. In the next chapter Demurrers will be noticed. These Blackstone treats as pleas, whereas in truth they are rather in the nature of objections that there is not sufficient case in point of law to oblige the accused to plead. It is not to be understood that a defendant may in turn go through the whole of these pleas, resorting to |