Challenges of jurors.] The jurors must be challenged, if at all, before they are sworn, 2 Hawk. c. 43, s. 1, or the oath or affirmation tendered to them. And where, after the jury were all sworn, the case opened, and one witness examined, the foreman intimated to the court that there was a relation of the defendant on the jury, Erskine, J. (after conferring with Tindal, C. J.), held, that he had no power to discharge the jury, and that the case must therefore proceed. R. v. Wardle, Car. & M. 647.

The Queen or the party may challenge the whole array, for favour. 1 Inst. 156. In R. v. Dolby, (1 Car. & K. 238), the defendant, being indicted in Middlesex, before the court of King's Bench, for a seditious libel, challenged the array, because he said that he was prosecuted by an association called the Constitutional Association, and that one of the sheriffs who returned the jury was one of the association; the counsel for the prosecution thereupon took issue; the chief justice then appointed two triers to try the issue, who were accordingly sworn; the counsel for the defendant first addressed these triers, and called a witness, who proved that the sheriff named was one of the subscribers to the association; the counsel for the prosecution then addressed the triers, and called a witness to prove that the sheriff had ceased to be a subscriber to or member of the association before the return of the jury process, but failed in proving it for want of the letter by which the sheriff had withdrawn himself from it; the triers were then addressed by the counsel for the defendant in reply; the chief justice summed up; the triers thereupon found in favour of the challenge; and the cause was adjourned. This will be found to be a good precedent to follow, in similar cases, where issue is taken on the challenge. In another case, R. v. Hughes (1 Car. & K. 235), the counsel for the prosecution demurred to the challenge, as being too general, in merely stating that the sheriff had not chosen the panel indifferently and impartially, and that the panel was not an indifferent panel, without showing in what respect the sheriff had acted partially, &c.; the counsel for the defendant joined in demurrer; the two judges, Gurney, B. and Cresswell, J., after argument, allowed the demurrer, and the trial proceeded.

The prisoner may peremptorily challenge twenty jurors in murder or other felony; 6 G. 4, c. 50, s. 29; thirty-five in treason; but there is no peremptory challenge in misdemeanors, R. v. Reading, 7 How. St. Tr. 264, or upon the trial of collateral issues. Fost. 42. R. v. Ratcliffe, 1 W. Bl. 3. Every peremptory challenge above the limited number, is void, and the trial may proceed as if no such challenge had been made. 7 & 8 G. 3, c. 28, s. 3.

The Queen has no peremptory challenge; she can only challenge for cause; 6 G. 4, c. 50, s. 29; but she is not bound to show the cause, until the whole panel be gone through,

and it appear that there will not be a full jury without the person challenged. 2 Hawk. c. 43, s. 3. See R. v. Geach, 9 Car. & P. 499.

The prisoner, besides his peremptory challenges, may also challenge as many of the jury as he pleases for cause, showing the cause presently, 1 Inst. 158. 2 Hawk. c. 43, s. 10, and being prepared to prove it. R. v. Savage, Ry. & M. 51. Thus, he may challenge a juror, because he is a peer; 1 Inst. 156. 2 Hawk. c. 43, s. 11; or because he is one of the grand jurors who found the indictment; Lamb. 554; or because he has not the qualification required by the Jury Act; 6 G. 4, c. 50, s. 27. 2 Hawk. c. 43, s. 12; or because he is an alien; 1 Inst. 156. 2 Hawk. c. 43, s. 10; or because he is under age; 1 Inst. 157. 2 Hawk. c. 43, s. 10; or because he is outlawed; 2 Hawk. c. 43, s. 27; or because he is of kindred or affinity to the prosecutor; Semb. 1 Inst. 157. See R. v. Wardle, ante, p. 163; or because he has made some declaration, showing a prejudice against the prisoner; 2 Hawk. c. 43, s. 28; or the like. If a person serve on the jury, who has been regularly summoned, but against whom there is a cause of challenge, for which the prisoner would have challenged him if he were aware of it, still this is no ground for applying for a new trial. R. v. Sutton, 8 B. & C. 417. Where a son served on a jury for his father, at his father's request, and without collusion with either the prosecutor or the defendant, and the son was under age and had no qualification, nor was his name upon the panel: the court of King's Bench held this to be a mistrial, and granted a new trial. R. v. Tremeurne, 5 B. & C. 254. But by stat. 7 G. 4, c. 64, s. 21, no judgment after verdict upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed for any misnomer or misdescription of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer.

No challenge can be made, until after a full jury appears. R. v. Edmunds, 4 B. & Ald. 471.

The following is the form of a

Challenge to the Array.

And hereupon the said A. B. doth challenge the array of the panel aforesaid; because he saith that [&c., stating the particulars of the cause of challenge]: And this he the said A. B. is ready to verify; wherefore he prayeth judgment that the said panel may be quashed.

The challenge to individual jurors (which is called a challenge to the polls), is made verbally, whether it be a peremptory challenge, or for cause. Indeed a challenge to the polls

for cause, seldom occurs in practice; for the counsel either for the defendant or the prosecution, have only to intimate to the clerk of arraigns or clerk of the peace that they desire that a particular juror or jurors named may not be put upon the jury, and he will in general refrain from calling them.

Petty jury charged.] When the challenges (if any) have been disposed of, and a full jury have been sworn, the clerk of the arraigns at the assizes, or the clerk of the peace at sessions, in cases of treason and felony, and in cases of misdemeanors if no counsel be employed for the prosecution, charges the petty jury with each case, thus: "Gentlemen of the jury: the prisoner stands indicted, by the name of A. B., [late of, e..] for that he on the" [&c., as in the indictment, to the end]. "Upon this indictment he has been arraigned, and upon his arraignment he has pleaded not guilty, and for his trial has put himself upon his country, which country you are: Your charge therefore is, to inquire whether he is guilty of the [felony] whereof he stands indicted, or not guilty, and to hearken to the evidence."

By stat. 14 & 15 Vict. c. 19, s. 9, reciting that by the stat. 12 & 13 Vict. c. 11, and that Act, provisions were made for the more exemplary punishment of persons who should commit certain offences after one or more previous conviction or convictions for the like or other offences, and it was expedient to define the time of charging the jury to inquire as to such previous conviction or convictions: it is enacted, "that it shall not be lawful on the trial of any person for any subsequent offence, where a plea of not guilty shall have been entered on his behalf, to charge the jury to inquire concerning any previous conviction, until they shall have inquired concerning such subsequent offence, and shall have found such person guilty of the same; and whenever in any indictment any previous conviction shall be stated, the reading of such statement shall be deferred until after such finding as aforesaid: provided, that if upon the trial of any person for any such subsequent offence as aforesaid, such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such person, for the previous offence or offences, before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence." The recital here makes no mention of prosecutions for subsequent felonies after a previous conviction for felony within stat. 7 & 8 G. 4, c. 28, s. 11. But as the enacting part is general," on the trial of any person for any subsequent offence," ,"-there is no doubt this section would be holden to apply to it.

SECTION II.

The Trial.

Before the trial is commenced, it may be necessary for the prosecutor or prisoner to make some application to the court. The prosecutor may move to postpone the trial, on account of the absence of a material witness; and if the absent witness be one of those who were examined before the committing magistrate, the judge has an opportunity of ascertaining from the deposition, whether he is a material witness or not; but if he were not examined before the magistrate, the judge in that case will require an affidavit, stating what the witness is expected to prove. R. v. Savage et al., 1 Car. & K. 75. Where, to account for a witness being unable to attend, a surgeon made affidavit that the witness was the mother of an unweaned child, which was afflicted with inflammation of the lungs, and that the child could neither be brought to the assize town, nor be separated from its mother, without danger to its life: this was deemed sufficient ground for postponing the trial. Id. But where, upon a prisoner being about to be tried for carnally knowing a girl of only six years of age, an application on the part of the prosecution was made to postpone the trial, until the child could be instructed as to the obligation of an oath: Pollock, C. B., refused it. R. v. Nicholas, 2 Car. & K. 246. And where the trial had been postponed twice, on account of the absence of a witness, and at the third assizes it appeared, that notwithstanding the most diligent inquiry, he could not be found, and one of the deponents stated that he heard that he had embarked for India, as a soldier: Maule, J., on application of the prosecutor, discharged the prisoners, and discharged the prosecutor's recognizances, notwithstanding the prisoners opposed it. R. v. Bridgman et al., Car. & M. 271.

In like manner the prisoner may apply to postpone the trial, on account of the absence of a material witness. And where a witness for the prosecution was absent, who had been examined before the committing magistrate, and the prisoner stated in an affidavit that it would be material to his defence that such witness should be cross-examined by his counsel: Cresswell, J. (after conferring with Patteson, J.), postponed the trial, saying that he would not require an affidavit of any diligent search having been made for the witness, as the witness being bound over to attend, the prisoner would naturally expect he would appear. R. v. Macarthy, Car. & M. 625. But where, upon an indictment for murder by poison, the counsel for the prisoner applied to postpone the trial, on the ground that the names of witnesses were on the back of the

indictment, who were not examined before the magistrate, and who it was understood were to be called to prove previous attempts of the prisoner to poison the deceased, and it was material for the prisoner that those alleged attempts should be investigated, and the character of the witnesses inquired into: Alderson, B., after consulting with Rolfe, B., refused the application as unprecedented. R. v. Johnson, 2 Car. & K. 354. In strictness, all applications of this kind, whether on the part of the prosecutor or prisoner, should be made before the jury are sworn. But where the prisoner made the application after the jury were sworn and charged, Cresswell thought that it might be done; but the affidavit produced being insufficient, the trial proceeded, and the defendant was convicted. R. v. Fitzgerald et al., 1 Car. & K. 201.

So, a defendant may move that money which has been taken from him by the constable, &c., may be delivered up to him, and the court will make the order accordingly, although the money is sought to be retained to pay the expense of conveying the defendant to prison; R. v. Bass, 2 Car. & K. 882; but if it appear, or be probable, that such money was part of the produce of the offence with which the prisoner is charged, the court usually refuse the application.

Either party, immediately after the jury are charged, or indeed at any time during the trial, may apply to have the witnesses for the opposite party sent out of court; and the court will make an order accordingly. The attornies of the respective parties, however, are never included in this order; Pomeroy v. Baddeley, Ry. & M., N. P. C. 430; nor is the surgeon or any other witness, who is to depose to mere matter of opinion, and not to facts. If the witness do not withdraw when ordered, or afterwards return into court before he is called for, and is present during the examination of some other witness, it is discretionary with the judge whether he will allow him to be examined or not. Parker v. M' William, 6 Bing. 683. R. v. Coley, 1 Moody & M. 329.

Case stated, and evidence for the prosecution.] If counsel be engaged for the prosecution,* he addresses the jury, states

It is a bad, a mischievous economy to cast upon the judge, recorder, or chairman, the task of examining the witnesses, and, in appearance at least, of conducting the prosecution against the prisoner. It must be mortifying to the judge to find that he, who is deemed the prisoner's counsel, or who at all events is to hold the scales evenly between the prosecutor and the prisoner, should be thrust forward into the place of prosecutor, to ex

amine the witnesses, and to play the advocate against the very party for whom he is deemed counsel. Those who know the high honour of those learned persons, their anxiety that all trials before them should be conducted in the true spirit of English fairness, may readily imagine the dislike, disgust, they must feel, when they find a duty cast upon them, so ill becoming their position, their station, and the nature of their office. I say it is a bad, a mis