"those cases also are instances of an opinion given, "and not of silence on the part of the judge, as to the "law of the case. The statute was not intended to "confine the matter in issue exclusively to the jury, "without hearing the opinion of the judge, but to "declare that they should be at liberty to exercise "their own judgment upon the whole matter in issue, "after receiving thereupon the opinion and directions "of the judge." SECT. 1.-Of the Motions for New Trial, or in Arrest of Judgment. AFTER verdict the defendant may move for a new trial within the first four days of the ensuing term, or he may move in arrest of judgment at any time before sentence is actually passed; or the court will, if it see that such interference is necessary for the ends of justice, take upon itself to grant a new trial when the defendant is called up for judgment. (a) SECT. 2. Of the Evidence in Aggravation and Mitigation. If no such motion be made, and the defendant be called up for judgment, the court will hear affidavits read, to inform itself as to the character of the offence committed. (a) See R. v. Holt, 5 T. R. 436., and the cases there cited in the notes. Strictly speaking, evidence in aggravation or mitigation is not admissible upon the trial of the issue, Guilty or Not guilty; but sometimes, when the practice of the court is to pass sentence immediately upon conviction, evidence of mitigating circumstances has been allowed, as a matter of convenience, to be given upon the trial. In all courts of criminal jurisdiction it is, however, competent to the prosecutor and the defendant to put in affidavits in aggravation and mitigation previously to or at the time of the defendant being called up for judgment. In the Central Criminal Court the practice is not to hear counsel upon such affidavits (b); but in the Queen's Bench, by the rules of 29 Geo. 3., it is ordered, that "when any defendant "shall be brought up for sentence on any indictment "or information after verdict, the affidavits produced on the part of the defendant, if any such shall be "produced, shall be first read, and then any affi"davit produced on the part of the prosecution shall "be read; after which the counsel for the defendant "shall be heard, and lastly the counsel for the "prosecution. "And when any defendant shall be brought up "for sentence after judgment by default, the prose"cutor's affidavits shall be read first, then the defen"dant's affidavits, after which counsel for the prose"cution shall be heard, and lastly the counsel for the "defendant. "If no affidavits shall be produced, the counsel for "the defendant shall be first heard, and then the "counsel for the prosecution." (c) (b) Reg. v. Gregory, Cen. Crim. Court, 1843. (c) R. v. Buntz, 2 T. R. 683. Affidavits in aggravation or mitigation should be entitled in the court and cause. But the court has sometimes permitted affidavits not sworn in the cause to be read; and in Rex v. Jolliffe (d), Ashurst, J., even went so far as to say, "It is immaterial with what "view the affidavits were made; the question is, whe"ther they contain sufficient matter to satisfy our "consciences." In the King v. Morgan, which was an information by the attorney general, the affidavit upon which the attorney general had filed the information was offered, on the part of the crown, to be read in aggravation, and the court, after deliberation, permitted it to be read, the affidavit being entitled, "In the King's Bench," sworn before a commissioner of the court, and being the foundation of a proceeding in the court, and the court understanding that it had been the practice for such affidavits to be read on judgment by default. (e) The prosecutor may make affidavit in aggravation, and the defendant may make affidavit in mitigation. In other respects the ordinary rules of evidence must be observed in framing the affidavits. Hearsay evidence is inadmissible, although in one case a declaration made by a person sworn to be under the influence of the defendant was admitted in aggravation, the person who made the declaration having refused to make an affidavit, and the court allowing the defendant an opportunity to answer the matter alleged. (ƒ) In the King v. Mawbey (g), where two defendants had been convicted and two acquitted, the affidavits of (d) 4 T. R. 292. (e) 11 East, 547. (f) R. v. Archer, 2 T. R. 203, note; 4 T. R. 285, R. v. Pinkerton, 2 East, 357; 6 T. R. the two acquitted defendants were tendered in favour of the two who had been convicted. An objection was taken to the reading their affidavits by the counsel for the prosecution; but it was answered, that this was the first opportunity which offered of tendering their evidence; that if a defendant against whom there is no evidence be entitled to be acquitted, in the first instance, for the purpose of being examined at the trial in favour of the other defendants, by the same rule those persons who were ultimately acquitted, and had no such opportunity before, were entitled to be heard now. read. The court directed the affidavits to be In the King against Sharpness (h) it was at first doubted whether affidavits in aggravation could be received against a prisoner convicted upon an indictment when brought up for judgment, Willes and Ashurst, J.J., saying, that they had understood it to be that it was unnecessary for the defendant to offer any evidence in extenuation at the trial, because such matter might be brought before the court afterwards by affidavit; but they had always been of opinion that the prosecutor must prove his whole case at the trial, and could not afterwards go into matter of aggravation. Buller, J., dissented, however, from this view. He said, "At the trial the only thing to be inquired into "is, the fact which constitutes the offence. Matters "of extenuation or aggravation are never entered into "at that time. If it were permitted to the prosecutor "to enter into matters of aggravation, it would be highly unjust not to let the defendant rebut it by offering evidence in extenuation." His lordship 66 (h) 1 T. R. 228. |