Jury de medietate linguæ.

motion of either the prosecutor or the defendant. The party applying for a special jury must pay the extra fees and expenses, unless the court certifies that it was a proper case to be tried by a special jury. These jurors are taken from a higher class than common jurors, their qualifications being determined by statute (g). The instances of the trial of a criminal case by a special jury are so rare, that we need not enter into further particulars.

Another exceptional form of jury was, until lately, sometimes demanded; a jury de medietate linguæ. Formerly, in cases of felony or misdemeanor, but not of treason, an alien might claim his right to be tried. by a jury, half of whose number were aliens, or, at least, if not half, as many as the town or place could furnish. But this privilege was taken away by the Naturalization Act, 1870 (h); and now an alien is tried as if he were a natural born subject (i).

(g) 33 & 34 Vict. c. 77, s. 6.

(h) 33 & 34 Vict. c. 14, s. 5.

(i) We have already referred to another case of a so-called jury de medietate linguæ, v. p. 314.

CHAPTER XIV.

THE HEARING.

jury.

THE full complement of jurors having been obtained, Swearing the they are sworn; or, if any of them on conscientious grounds object to the oath, they make the statutory declaration (j). The oath, and mode of taking it, differ slightly in felonies and in misdemeanors. In felonies, each juror is sworn separately in the following terms: You shall well and truly try, and true deliverance make, between our sovereign lady the Queen and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence. So help you God." In misdemeanors, four take hold of the book at the same time, and four, or sometimes all, are sworn together. The oath is: "You shall well and truly try the issue joined between our sovereign lady the Queen and the defendant, and a true verdict give according to the evidence. So help you God" (k).

the hearing.

After the jury are sworn, in cases of treason or Proceedings at felony, the crier at the assizes makes the following proclamation: "If any one can inform my lords the Queen's justices, the Queen's attorney-general, or the Queen's serjeant, ere this inquest taken between our sovereign lady the Queen, and the prisoners at the bar, of any treason, murder, felony, or misdemeanor, committed

(j) 30 & 31 Vict. c. 35, s. 8.

(k) v. Fitz. St. p. 57, as to the historical cause of this distinction, the terms of the oath in a misdemeanor shewing the resemblance of procedure in a misdeameanor to that in a civil action; that in felony reminding us of the days "when the jury were both judges and witnesses, who reported on the prisoner's guilt or innocence of their own knowledge."

Course of examination,

&c.

or done by them, or any of them, let him come forth, and
he shall be heard; for the prisoners stand at the bar
upon their deliverance." The clerk of arraigns or of
the peace, having called the prisoner to the bar, says to
the jury: "Gentlemen of the jury, the prisoner stands
indicted by the name of John Styles, for that he on
the (reciting the substance of the indictment). Upon
this indictment he has been arraigned, and upon his
arraignment he has pleaded that he is not guilty; your
charge, therefore, is to inquire whether he be guilty or
not guilty, and to hearken to the evidence." In mis-
demeanors, the jury are not thus charged. The counsel
for the prosecution now opens the case to the jury,
stating the principal facts, which the prosecution intend
to prove. He then calls his witnesses; who, having
been sworn, are examined by him, and then subjected
to cross-examination by the counsel for the defence;
or, if the prisoner is not defended by counsel, to any
questions which the prisoner may put to them. The
counsel for the prosecution may re-examine on matters
referred to in the cross-examination. The court also

may, at any time, interpose, and ask questions of the
witnesses. After the case for the prosecution is closed,
it is ascertained whether the defence intend to call any
witnesses. If they do not, the counsel for the prosecu-
tion may address the jury a second time in support of
his case, for the purpose of summing up the evidence
against the prisoner (); but this right will be exer-
cised only in exceptional cases, as where the evidence
materially differs from the counsel's instructions.
if the prisoner has witnesses whom he wishes to call,
his counsel opens the case for the defence, and calls
these witnesses in support thereof. They also are
subject to cross-examination by the counsel for the
prosecution, and re-examination by the counsel for the
defence on this cross-examination. The counsel for

But

(l) 28 Vict. c. 18, s. 2.

the prisoner is now entitled, at the close of the examination of his witnesses, to sum up his evidence (m).

After this address by the counsel for the defence, the counsel for the prosecution has the right of reply. This is in consequence of the defence having adduced evidence, written or parol, in defence (but mere evidence to character has not, in practice, this result); for if he has not done so, the address of the counsel for the defence is the last. There is, however, one exception. When the Attorney-General, or some one else as his representative, is prosecuting, he has the right of reply, although no evidence has been adduced for the defence (n). If two prisoners are jointly indicted for the same offence, and only one calls witnesses, the counsel for the prosecution has the right to reply generally; but not if the offences are separate and the prisoners might have been separately indicted (0). If the prisoner is not defended by counsel, he may cross-examine the witnesses for the prosecution and examine his own witnesses; and, at the end of such examination, address the jury in his own defence (p). And if one only of two prisoners jointly indicted is defended by counsel, the undefended one may cross-examine and examine as above, and make his statement to the jury before or after the address of the counsel for the other, as the court thinks fit. If the prisoners jointly indicted are defended by different counsel, each counsel cross-examines, and addresses the jury in order of seniority at the bar; or, if the judge thinks desirable, in order of the names of the prisoners on the indictment (9). If a prisoner defended by counsel wishes to address the jury and examine and cross-examine witnesses, he may do so; and his counsel may argue points of law, and suggest

(m) 28 Vict. c. 18, s. 2.

(n) R. v. Toakley, 10 Cox, 406. (0) R. v. Jordan, 9 C. & P. 118.

(p) See Appendix to this chapter.

(q) Arch. 172. But this point does not seem to be clearly settled. R. v. Meadows, 2 Jur. (N.S.) 718. R. v. Holman, 3 Jur. (N.S.) 722.

questions to him in cross-examination; but he cannot have counsel to examine and cross-examine witnesses, and reserve to himself the right of addressing the jury (r).

Nevertheless he has sometimes been allowed to do So. In some cases the prisoner, though represented by counsel, has been unconditionally allowed to make a statement (s). In another case the judge intimated that he would always allow the prisoner to make his own statement, in addition to his counsel's speech, but would at the same time give the prosecution a right of reply (t). As to the practice of allowing counsel defending a prisoner to make, in his address to the jury, a statement of facts not intended to be proved, it has varied. In one case counsel was not allowed to do so, without giving the prosecution the right to reply (u). In another and more recent case the late Lord Chief Justice allowed the prisoner's counsel to do so without any such condition, observing that the prisoner's counsel stood in the place of the prisoner, and was entitled to say anything which the prisoner might say, for which he would be entitled to consideration and credence, if consistent with the rest of the evidence (v). Relying on this case, Mr. Russell, Q.C., in the trial of O'Donnell endeavoured to do the same thing. The Attorney-General objected but afterwards withdrew the objection. After this trial a correspondence took place between the Attorney-General and Lord Coleridge, L.C.J., in which the latter states that at a meeting of the judges held in the Queen's Bench room on the 26th November 1881, the following resolution was come to, viz. "That in the opinion of the judges it is contrary

(r) R. v. White, 3 Camp. 97.

(8) R. v. Dyer, 1 Cox, 113; R. v. Manzans, 2 F. & F. 64; R. v. Williams, 1 Cox. 363.

(t) Per Cave J. in R. v. Lowe, Liverpool Assizes, May 1882. (u) R. v. Butcher, 2 Mood. & Rob. 228 (per Coleridge, J.)

(v) R. v. Weston, 14 Cox, 346.