A Treatise on Criminal Law as Applicable to the Dominion of Canada

from the jury-book for the latter year. (a) This might be requisite if the Act forbade a juror, duly summoned, to serve after the delivery of the new book to the Sheriff. (b)

It has been held that an alien, indicted for felony, has a right to be tried by a jury de meditate linguæ. (c) The 32 & 33 Vic., c. 29, s. 39, enacts that juries de meditate linguæ shall not, hereafter, be allowed in the case of aliens.

Where a prisoner has been arraigned on a charge of uttering forged paper, it is not competent for the Crown to order the trial by jury of a preliminary question, raised by the prisoner's counsel, to the effect that the prisoner had been extradited from the United States on a charge of forgery, and could not, therefore, be legally tried here for any other offence. This question must be determined by the Court. (d)

The maxim, that Judges shall decide questions of law, and juries questions of fact, is one of those principles which lie at the foundation of our law. (e) The principle applies in criminal as well as civil cases, though, in some cases, it rests with the jury to determine a mixed question of law and fact. (ƒ)

The jury are bound to follow the direction of the Court in point of law; and where a jury attempted to persist in returning a verdict contrary to the direction of Pollock, C.B., he told them they were bound to return a verdict according to his direction in point of law, and explained that the facts only were within their province, and the law in his; and although he did not infringe on their province, he could not permit them to invade his.

(a) Mulcahy v. Reg. L. R. 3 E. & I. App. 306.

(b) Ib. 316, per Willes, J.

(e) Winsor v. Reg., L. R. 1 Q. B. 303, per Cockburn, C. J.

(f) Gray v. Reg., 1 E. & A. Reps. 504, per Sir J. B. Robinson, Bart.

He peremptorily directed them to return a verdict according to his direction in point of law. (a)

The jury have a right, after the summing up and conclusion of the case, and after retiring to their room to deliberate, to return to open Court, and re-examine any of the witnesses whose evidence was not well understood by them. (b)

The strictness of the rules regarding juries, and the conduct of trials, has been much relaxed in modern times. (c)

The misconduct, or irregular and improper conduct of juries, will only have the effect of vitiating their verdict, when it is such that the result of the trial has been influenced by it, or when there is any sufficient and reasonable ground to believe that such influence or effect has been produced by it. (d)

There is a substantial distinction in regard to misconduct of the jury, whether the irregularity took place before or after the jury are charged by the Judge. The indulgence in the way of separating, or otherwise, is much restricted after the charge. (e)

The fact that one of the jury, on a trial for felony, during a recess which took place in the progress of the trial, not being in charge of any officer, or other person, entered a public-house, and mentioned the subject of the trial to A., and had some slight conversation with other parties as to it, is, in the absence of evidence that the juror, or the verdict, was influenced by this, not sufficient to vitiate the verdict, or amount to a mis-trial. (ƒ) When a juror has separated from his brethren, and

(a) Reg. v. Robinson, 1 U. C. L. J. N. S. 53; 4 F. & F. 43.

(b) Reg. v. Lamere, 8 L. C. J. 281.

(e) Ib. 221, per Wilkins, J.

(ƒ) Ib. 203.

conversed with others on the subject of the cause in a way calculated to influence him in forming an opinion upon it, it amounts to a mis-trial, let the consequences be what they may: but if the juror is not influenced by anything which occurred in consequence of the separation, there is no mis-trial. (a)

In all criminal trials, less than felony, the jury may, in the discretion of the Court, and under its direction as to conditions, mode, and time, be allowed to separate during the progress of the trial. (b)

The Crown, as well as the prisoner, has a right to set aside a verdict vitiated by the juries' misconduct. (c)

There is no authority for ordering that a jury have refreshments during the period of their deliberation. (d)

As to discharging juries, there would seem to be no difference between misdemeanors and felonies. In both, the principles on which trial by jury is to be conducted are the same. (e)

If a juryman has merely fainted, because the Courtroom is hot and close, it would be proper to wait a short time, and then proceed; but if he is taken so ill that there is no likelihood of his continuing to discharge his duty, without danger to his life, the jury must be discharged. (ƒ)

Where the record of a conviction for felony shewed that, on the trial of an indictment, the jury being unable to agree, the Judge discharged them-that the prisoner was given in charge of another jury, at the next assizes, and a verdict of guilty returned, and judgment and sen

(a) Reg. v. Kennedy, 2 Thomson, 206-7, per Halliburton, C. J.

(b) 32 & 33 Vic. c. 29, s. 57.

(d) Winsor v. Reg. L. R. 1 Q. B. 308, per Cockburn, C. J. (e) Winsor v. Reg., L. R. 1 Q. B. 307, per Cockburn, C. J. (ƒ) Ib. 315, per Blackburn, J.

tence passed, on writ of error:-Held, that the Judge had a discretion to discharge the jury, which a court of error could not review-that the discharge of the first jury, without a verdict, was not equivalent to an acquittal-that a second jury process might issue, and that there was no error on the record. (a)

When the discharge of a jury is warranted by the rules of law, it does not operate as an acquittal, or bar another trial; but if the jury are wrongfully discharged, the prisoner cannot be put a second time on trial. (b)

The illness of a juror, or the illness of a prisoner, has been held sufficient ground for discharging the jury. (c)

A jury sworn and charged, even in case of felony, may be discharged, without verdict, in case of death or illness of one of the jury, or their being unable to agree, or at the desire of the accused, with the consent of the prosecution. (d)

The jury cannot be discharged at the instance of the prosecutor, in order to obtain evidence, of which, at the trial, there appears to be a failure. But it would seem that this is not a rule of positive law, and that there are exceptions to it; and where a witness is kept away by the prisoner, and by collusion between him and the prisoner, is tampered with, the rule should be relaxed, and the Judge permitted to discharge the jury.

Where a jury are discharged in consequence of their not agreeing, it is not necessary to wait; and, on the contrary, the Judge should not wait until the jury are exposed to the dangers which arise from exhaustion or prostrated strength of body and mind, or until there is a chance of conscience and conviction being sacrificed for

(a) Winsor v. Reg. L. R. 1 Q. B. 390, (Ex. Chr.) (b) Ib.

(d) Reg. v. Charlesworth, 9 U. C. L. J. 53; 1 B. & S. 460.

personal convenience, and to be relieved from suffering. (a)

The defendant was put on trial for a misdemeanor. At the trial, a witness, called on behalf of the Crown, claimed his privilege not to give evidence on the ground that he would, thereby, criminate himself. The Judge, who presided at the trial, refused to allow him the privilege; but, the witness still refusing to answer, he was committed to prison for contempt of Court, and a conviction of the defendant being, under these circumstances, impossible the jury, at the request of the counsel for the prosecution, and against the protest of the counsel for the defendant, were discharged without giving any verdict:-Held, that the defendant ought not to be allowed to put a plea upon the record stating the above facts, but that they ought to appear as an entry on the record. An entry was made upon the record accordingly ; when it was, further, held that, whether or no, the Judge had power to discharge the jury, what took place did not amount to a verdict of acquittal, nor was the prisoner entitled to plead autrefois acquit in respect thereof, and that the defendant was not entitled to judgment quod eat sine die, or to the interference of the Court to prevent the issuing of a fresh process. (b)

The old doctrine, that, if the jury could not agree, it was the duty of the Judge to carry them from town to town in a cart, has been exploded in modern times. It is certainly not now the practice. (c)

In criminal cases, not capital, where the verdict is so inconsistent and repugnant, or so ambiguous and uncertain, that no judgment can be safely pronounced upon it, a venire de novo may be awarded. (d)

(a) Reg. v. Charlesworth, 9 U. C. L. J. 48.

(b) Reg. v. Charlesworth, supra.

(c) Winsor v. Reg., L. R. Í Q. B. 305, per Cockburn, C. J. 320-1, per Mellor, J. (d) Reg. v. Healey, 2 Thomson, 332-3, per Bliss, J.

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