court, or is suggested to the court, as to the soundness of the prisoner's mind, the course to be pursued is as follows: to constitute themselves a jury to inquire into the fact, and to call for such witnesses who are capable of speaking as to the state of the prisoner's mind and former behaviour; and in so doing, the court may assist themselves by consulting No. 56, p. 895, Chap. XXIII. If the evidence adduced should negative this idea, the court would, after this, proceed to pass sentence. If the evidence, on the other hand, should create the least doubt on this subject, a report should be made, that a medical committee may be appointed, to give their opinion (90).

If the prisoner should prove deranged in his mind, the trial would not be proceeded in, as, according to the law of England, such a course is never pursued (91).

If it should appear that the prisoner feigns to be deranged, the court would, in such case, have nothing to do but to pass sentence. 12. Plea of Autrefois, acquit.]—(See No. 71, p. 903, Chap. XXIII.) 13. Plea of Autrefois, attaint.]—(See No. 73, p. 904, Chap. XXIII.) 14. Plea of Autrefois, convict.1-(See No. 72, p. 904, Chap. XXIII.) 15. Plea of Non-jurisdicton.]—(See No. 79, p. 906, Chap. XXIII.) 16. Plea of Misnomer.]-See No. 75, p. 905, Chap. XXIII.) 17. Plea of Pardon.]—(See No. 74, p. 905, Chap. XXIII.) 18. Judge Advocate General's or Prosecutor's Address.] The Judge Adv.gen, or the prosecutor, either addresses the court, or reads a prepared statement, for the information of the court (92).

This address should be a simple statement of the fact or facts of the case, without leading the court to believe that more will be given in evidence than is capable of proof, or omitting those material facts which should be laid before the court, to give them a general outline, as to the nature of the transaction.

The prosecutor should be restrained from unnecessarily urging extraneous matter, or in departing from the plain unsophisticated statement of his case; for if such a departure be acceded to one party, common justice and humanity will require that the prisoner should be allowed, in his defence, to impugn the credit of such extraneous or foreign matter, either by witnesses, or in his address.

Nothing so much tends to protract the proceedings, as the introduction of extraneous matter, and the court are not assembled to investigate

(90) The court may, of course, call any medical officers to assist them in forming their judgment, if necessary. If such a case happened at Cawnpore, for instance, I conceive the Maj.gen. comg, would order a committee to assemble, and not wait for orders from Calcutta, by which delay would ensue to the injury of the public service.

(91) Blackstone, vol. iv, p. 396.

(92) See p. 370, 371. If there be a joint prosecutor, he will make the addres Lieut.col. Johnston's Trial, p. 5, Col. Quentin's Trial, p. 4, but in Sir J. Murray's Trial, the Judge Adv.gen. made an address on 1st and 2d charges, p. 3, and Rear Adml, Hollowell on the 3d, p. 74.-(See case 10, p. 358.)

gate into the private bickerings of the opposed parties, but to decide intrinsically on the merits of the case, which has been legally submitted for their decision; and they have met for that sole purpose.

If the prosecutor should persist in his address, contrary to the recommendation of the court, and the court are of opinion that it contains foreign matter, they have an undoubted right to inform him, that they cannot record it in that shape. The court should point out the exceptionable passages, and desire him to strike them out (93).

This address is given into the court, the original being kept, and the address is recorded in the proceedings (94).

19. Mode of Procedure where there are several Counts or Charges. The court should caution any who may be taking notes of the trial, that it is expected, that they will not publish any part of the proceedings, till the trial is concluded.-(See p. 446.)

Where there are several articles of charge against a prisoner, it becomes important, at the outset, to determine upon the mode of procedure to be adopted by the court.

There may be charges relative to several points, and there may be witnesses to speak to some, who are totally unable to give any evidence as to other parts of the charge (95).

It is evident, to observe clearness and precision in the proceeding, that, in general, where there are more than one charge, the examining evidence separately as to the distinct points, is most likely to prevent confusion in the proceedings; but if there be many witnesses to be examined, it becomes necessary to call back many of them upon each charge, which might very much extend the proceedings. The court must consider this question with reference to the particular case. Of course, that plan which prevents the witnesses being too often called back into court, and at the same time, is the most likely

(93) No court would ever trench upon the right of the prosecutor to address all that he thinks necessary, and until he has been heard, they cannot decide as to the objection; but having decided against certain parts, it clearly becomes their duty to interfere. It is a painful duty imposed upon the court; but the practice should be general, and then it never can be urged that any partiality is shewn to one more than another : and this without reference to the rank of the party; as courts of justice have no regard to the rank of those brought before them.

(94) Such parts of the prosecutor's statement to which he can swear may be made evidence, with the prisoner's consent, by the prosecutor marking such parts as he intends to make his evidence; and being duly sworn as to such parts, the same is entered upon the proceedings separately as his evidence. This was the course adopted at Sir J. Murray's trial. See printed trial, p. 194. This is, of course, subject to a cross-examination. The object is to save the time of the court in re-hearing such parts vivá voce.

(95) On the trial of Lieut.gen. Whitelocke, there were four charges, and the court divided the case into two parts. The 1st and 2d charges being first examined into; and then the 3d and 4th charges, being in the order of time in which the transactions occurred.—(See printed trial, p. 11 and 459. See case 8, p. 335.)

likely to exhibit the evidence distinct and clear upon the several points, is the best to be adopted.

If the prosecutor has obtained a sufficient knowledge of the points to which his witnesses can speak, it is manifest, that it is unnecessary that a number of witnesses should give a long narrative of all they saw, or all they know, which must make the proceedings voluminous; for the cross-examination by the prisoner, the examination by the court, and the re-examination by the prosecutor, will materially produce this effect.

In courts of justice, the usual practice is (96) to examine a witness by question and answer, instead of allowing a witness to run into a narrative. The great advantage of this plan is this:-you get at the fact unincumbered with extraneous and unimportant matter.

Where there has not been an opportunity of ascertaining any sufficient information from the witnesses for the prosecution, the Judge Adv.gen. being in the dark upon the subject, the witnesses must of necessity tell their own story their own way.

There is another disadvantage in admitting narratives. The court cannot always reject such part (being legal evidence) as may appear to be immaterial, if the prisoner should state, that it is material to him to have it recorded; for a selection of evidence would not be fair dealing with the prisoner.

Where a narrative becomes necessary, the Judge Adv. gen. has, with the consent of the court, prepared a statement of the points to which the witnesses were required to speak, at the same time desiring them not to confine themselves to those points, if they had any thing material to state (97).

20. 1st Witness for the Prosecution called in Court, sworn, and examined in chief by the Judge Adv. gen.] The first question put to a witness is,— Q. "Do you know the prisoner at the bar ?" All the charges need not be read to each witness, nor need they be read at all. The prosecutor is very usually the first witness himself (98), and if so, he is now sworn, and examined by the Judge Adv. gen., but the questions must not be leading questions. The Judge Adv. gen. having no further questions to ask

21. 1st Witness for the Prosecution cross-examined by the Prisoner.] The prisoner is next entitled to cross-examine the witness as to any thing said by him in his examination in chief, but is not allowed to go into any question not relevant to the case in issue; but he may put leading questions, and questions which may not have been put in the examination

(96) Counsel have their case in their briefs, and they are by this means acquainted with the points to which their witnesses can speak.

(97) See Lieut.gen. Whitelocke's trial, p. 148.

(98) He remains in court during the whole trial; and, after having given his evidence, calls his witnesses. The other witnesses retire. Those who have only to speak as to character, do not always retire. But if it is insisted upon, they should. Witness may be examined out of the regular order in which they are put down: such as medical men and those who have business.

examination in chief; for he may gain evidence from the witness as to a fact, of which his own witnesses may not have any knowledge (99).

22. 1st Witness for the Prosecution examined by the Court.] The court next examine the witnesses; and it is to be observed, that there is always a greater latitude allowed to the court than to other persons. They put all such questions as they think necessary to duly inform their minds, and to enable them to clearly understand and embrace all the points of the case. Party feeling, which may operate in the mind of the prosecutor or prisoner, has no existence in their minds, or, at least, should not have. The court have the privilege of calling back a witness at any time, till the court have commenced to vote as to the question of the guilt or innocence of the prisoner: and they will put any question which either party have omitted to ask, which may tend to do justice, and to bring out the truth.

23. Objection made to Evidence.] All parties may object to any question, and the ground of the objection should be clearly stated. If the court cannot, at once, decide the question, the question should be taken down by the Judge Adv. gen., on a separate piece of paper, and the court must be cleared for the purpose of taking the opinion of the court (100) but the question should not be discussed in open court (101); the court must be closed, and the question be debated with closed doors. When the court have determined the point, the court is again opened, and the Judge Adv. gen. informs the party objecting, that the court have determined to admit the question being put, to shape it in a different form as to the words, or to reject it altogether. The court's decision is final, and the party must rest satisfied with it; nor can the party insist upon the question being recorded; though the question should be preserved by the Judge Adv. gen. There being no further questions to be put, the witness is ordered to withdraw.

24. 2d Witness for the Prosecution called into Court, and examined by the Prosecutor.] The witness is sworn (see oaths, p. 412 to 416. See Solemn Declaration also, when required.) The witness is usually asked if he knows the prisoner. The prosecutor having himself given his evidence upon oath, calls his witnesses in due order, as best calculated

(99) He might decline cross-examining and call him as a witness on his defence, by which he would be able to examine him in chief and re-examine him, if he were cross-examined by the opposite party.

(100) The members vote, as in all other cases, beginning with the youngest. (101) There was a question agitated in open court, for some time, on the trial of Lieut.gen. Whitelocke; one of the members thought the question ought not to be put. The court was cleared, and when opened again, the Judge Adv.gen. informed the general that the court were unanimously of opinion, that the question should be put. The general remarked upon this in his defence, and conceived, it should seem, that the Judge Adv.gen. had persuaded the court to agree to the question. See printed trial, p. 685. It is obvious that such discussions in open court, are likely to create feelings which could not otherwise arise in the mind of the prisoner.

lated to bring out his proofs clearly, and to preserve a connected chain of evidence, upon which so much necessarily depends, and which is the chief aim of all evidence, which is intended to arrive at a true and just conclusion.

The better plan is to put the questions as the points arise, instead of preparing a string of questions which may not apply; though it is frequently the practice of cts.-mar. to have the questions prepared in writing, and to submit them to the president, who hands them over to the Judge Adv. gen., who addresses the question to the witness (102). 25. 2d Witness for the Prosecution cross-examined by the Prisoner.] The same as in No. 21.

26. 2d Witness for the Prosecution examined by the Judge Adv.gen.] This takes place in this form, when the prosecutor, and not the Judge Adv.gen., examines in chief.

27. 2d Witness for the Prosecution examined by the Court.] See No. 22.

28. 2d Witness for the Prosecution re-examined by the Judge Adv. gen. or the Prosecutor.] The prosecutor is entitled to re examine into any matter arising out of the cross-examination by the prisoner, but it must not extend to the introduction of any new matter.

29. Questions of Opinion.] See Nos. 66 and 67, p. 902, Chap. XXIII. 30. Credit of Witnesses impeached.] See No. 107, p. 916, Chap.

XXIII.

31. Written Evidence produced.] Written evidence may, in some cases, be the only evidence to be produced. When written evidence is introduced, it must depend upon circumstances whether it is to precede or follow the parole evidence. If it is capable of being received altogether, it is given into court, and, if necessary, they judge of its admissibility at once, or close the court to consider that question.

If not proper to be introduced in any given stage of the proceedings, it may still be given in and marked, subject to the above rule. It is usually entered in an appendix, at the end of the proceedings, and entered as read, where it applies, and referred to (103). This renders

the

* ̈ (102) The above plan certainly prevents the effect which may be produced by an exceptionable question being put. The practice in courts of justice is, to put all questions viva voce, as the latter mode gives less time to a witness who may be inclined to prepare an equivocal answer. If, by any chance, a question has been put which cught not to have been asked, the judge, in his charge to the jury, tells them to throw that question out of their consideration altogether, and would strike it out of his notes. If, notwithstanding this precaution, it should produce any effect, it is impossible to avoid it, for as Lord Ellenborough said, “ I cannot tell a witness he is not bound to answer a question, until I see that it has some bearing and probable tendency to accuse him.”—(Lord Cochrane's trial, p. 195.) This observation will apply to 'either party.

(103) Thus (A), letter from the prisoner to the prosecutor, dated —————, vide appendix, p.and so with the other papers and documents, being marked A,B,C, &c.