to the administration and practice of the criminal law, as hitherto allowed, that counsel for prisoners should state to the jury, as alleged existing facts, matters which they have been told in their instructions, on the authority of the prisoner, but which they do not propose to prove in evidence (w). It will simplify matters if we tabulate the steps in Order of prothe various cases which may occur. i. The prisoner defended by counsel, and adducing evidence in defence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, Counsel for defence opens his case. Counsel for defence examines his witnesses, who Counsel for prosecution replies. ii. Prisoner defended by counsel, but not adducing evidence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, Counsel for prosecution sums up his case (x). (w) v. the Weekly Notes of the Law Journal, Law Times, &c. ceedings at the hearing. The summing up. iii. Prisoner not defended by counsel, but adducing evidence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who, &c. Prisoner examines his witnesses, who, &c. Prisoner addresses the jury. Counsel for prosecution replies. iv. Prisoner not defended by counsel, and not adducing evidence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who, &c. Prisoner addresses the jury. The only other proceeding before the jury consider their verdict is the summing-up by the judge, or, at the sessions, by the chairman or recorder. The object of this is to explain the law as applicable to the case under trial, and to marshal the evidence so that it may be more readily understood and remembered by the jury. He first states to them the substance of the charge against the prisoner; he then, if necessary, explains to them the law upon the subject; he next reads the evidence which has been adduced in support of the charge, making occasionally such observations as may be necessary to connect the evidence, to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defence, and the evidence given on the part of the defendant; and he usually concludes by telling the jury that, if upon considering the whole of the evidence they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt, and acquit him (y). APPENDIX (Fitz. St. 196). of witnesses farce. "The common run of criminal trials passes some- Examination what thus: Ten or twelve awkward clowns, looking,' by the as an eminent advocate once observed, 'like overdriven prisoner, a cattle,' are crowded together in the dock. Their minds are confounded by formulas about challenging the jury, standing on their deliverance, and pleading to the indictment: the case is opened, and the witnesses called by a man to whom the whole process has become a mere routine, and whose very coolness must confuse and bewilder ignorant and interested hearers. After the witness has been examined, comes a scene which most lawyers know by heart, but which I can never hear without pain. It is something to the following effect: Judge. Do you wish to ask the witness any questions?' "Prisoner. Yes, sir. I ask him this, my lord. I was walking down the lane with two other men, for I'd heard "Judge. No, no, that's your defence. Ask him questions. You may say what you please to the jury afterwards; but now you must ask him questions.' "In other words, the prisoner is called upon, without any previous practice, to throw his defence into a series of interrogatories, duly marshalled, both as to (y) Arch. Q. S. 619. In an American case it has been decided that a judge may, when the evidence is clear and uncontradicted, and the character of the witnesses unshaken, tell the jury that it is their duty to convict. Commonwealth v. Magee, 12 Cox, 549. The summing up of the judge "may, and generally does, indicate his opinion, but it is an opinion which is the result of the evidence laid before him, and not of an independent inquiry."—Fitz. St. 161. the persons to be asked and as to the subjects to be inquired into; an accomplishment which trained lawyers often pass years in acquiring imperfectly. After this interruption has occurred three or four times in the course of a trial, the prisoner is not unfrequently reduced to utter perplexity and forgetfulness, and thinks it respectful to be silent." incompetency FORMERLY many more classes of persons were excluded, Grounds of as incompetent, from giving evidence, than are at the now reduced. present day. An objection to the testimony of a witness generally operates in another way now. Instead of excluding it altogether, the objection weakens the testimony and prevents the jury from placing ordinary credit in it; at the same time giving them the opportunity of gathering therefrom as much truth as possible. Thus, it has been provided by statute that no person offered as a witness shall be excluded by reason of incapacity from crime or interest from giving evidence (2); two grounds of incompetency which formerly prevailed. However, even now a person under sentence of death is incapable of giving evidence (a). The forms of incompetency at present existing Forms of in are: 1. Incompetency of the accused, and the wife or husband. 2. Incompetency from want of understanding. 3. Incompetency on account of the relationship of legal adviser. Though incompetency from want of religious belief may be regarded as a thing of the past, it is important to notice it. (z) 6 & 7 Vict. c. 85, s. 1. competency. |