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termed a peremptory challenge.' This is grounded on two reasons: (1) Sudden impressions and unaccountable prejudices are sometimes awakened by the mere looks and gestures of another, which might affect a prisoner as to a juryman, and render him reluctant to have his case tried before him. (2) Because, upon failure to establish a challenge for cause, the mere fact of challenging might awaken the resentment of a juror; and to prevent ill consequences therefrom, a prisoner is permitted to peremptorily challenge him.
Prisoner's Privileges. The privilege of peremptory challenges is granted to the prisoner, but denied by the statute to the king, who must assign a cause satisfactory to the court. The cause, however, need not be assigned, till the entire panel is gone through, and unless there cannot be a full jury without the person so challenged. The king's counsel must then show cause, or the juror shall be sworn.
Limited Number of Challenges. The peremptory challenges of the prisoner must have some limit, otherwise there may be no trial. The common law grants have thirty-five; that is one under the number of three full juries. It dealt with a man who peremptorily challenged more than this number, and refused to retract his challenge, as with one who stood mute, or refused his trial; by sentencing him to the peine forte et dure in felony, and by attainting him in treason. By statute of Henry VIII, no one arraigned for felony can have more than twenty peremptory challenges. The court disregarded any additional ones.
Jurors' Oaths. If by reason of challenges, or the default of jurors, a sufficient number cannot be had of the original panel, a tales may be awarded as in civil causes, till the number of twelve be sworn, "well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner, whom they have in charge, and a true verdict to give, according to the evidence."
Counsel for the Prisoner. When the jury is sworn, if it be a cause of consequence, the indictment is usually opened, and the evidence marshalled, examined and enforced by the counsel for the crown or prosecution. Under the old common law, no counsel was allowed a prisoner upon the trial, upon the general issue, in any capital crime, unless some point of law arose, proper to be debated. The judge was supposed to look after the interests of the prisoner, to see that the proceedings against him were legal and regular. In cases, however, of high treason, which would work corruption of the blood, or misprision of treason, except as to counterfeiting the king's coin or seal, counsel were allowed,
1 A peremptory challenge is not allowed in the trial of misdemeanors, or of collateral issues. By statute of George IV, such challenges, beyond the number allowed by law, are void.
Evidence. The doctrine of evidence upon pleas of the crown is, in most respects, the same as that upon civil actions. There are some points, however, in which they differ:
Confession of Treason. In all cases of high treason, petit treason, and misprision of treason, two lawful witnesses are required to convict a prisoner; unless he voluntarily confess the crime in open court, or before a magistrate, or person having competent authority to take the confession, and it be proved by two witnesses. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted in evidence under this statute.
Confessions Generally. Even in cases of felony, confessions they the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable by their nature of being disproved by other negative evidence.
Witnesses in cases of Treason. By statute of William III, it is declared, that both witnesses must be to the same overt act of treason; or one to one overt act, and the other to another overt act of the same species of treason, and not of distinct kinds; and no evidence shall be admitted to prove any overt act not expressly laid in the indictment. But in almost every other accusation, one positive witness is sufficient. Montesquieu lays it down as a rule, that those laws which condemn a man to death, in any case, on the deposition of a single witness, are fatal to liberty; as the witness who affirms, and the accused who denies, make an equal balance; a third witness is therefore needed to incline the scale.
Single Witness. This seems to be carrying matters too far; for there are some crimes, in which the very privacy of their nature excludes the possibility of having more than one witness Neither indeed is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. In cases of indictment for perjury, this doctrine is better founded; and there our law adopts it; for one witness cannot convict a man indicted for perjury, because then there is only one oath against another. In cases of treason also, there is the accused man's oath of allegiance to counterpoise the information of a single witness; which may be a reason, why the law requires a double testimony to convict him, though the principal reason is to secure the subject from being the victim of conspiracies, which are the engines of crafty politicians.
Hand-writing. The mere similitude of hand-writing in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, familiar with the party's hand, that they believe the paper to have been written by him, is evidence to be left to a jury.
Still-born Child. Proof. The mother of a bastard child, concealing its death, must prove by one witness, that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.
Presumptive Evidence of Felony. All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer. Sir Matthew Hale lays down two rules: (1) Never to convict a man for stealing the goods of a person unknown, merely because he will not account how he came by them; unless an actual felony be proved of such goods. (2) Never to convict any person of murder or manslaughter, till at least the body be found dead.
Witnesses for the Defence. The ancient practice was not to allow counsel to any prisoner accused of a capital crime; neither should he be suffered to exculpate himself by the testimony of any witnesses. Queen Mary humanely opposed this latter principle, and admitted such evidence against the crown; and under Elizabeth, the prisoner's witnesses were heard, but not under oath. At length, by statute of William III, and afterwards of Anne, in cases of treason and felony, all witnesses for the prisoner might be examined upon oath, in the same manner, as the witnesses against him.
The Verdict. When the evidence on both sides is closed, and indeed, after any evidence has been given, the jury cannot be discharged, unless in cases of evident necessity, till they have rendered their verdict; but are to deliver it with the same forms, as upon civil causes; only they cannot in a criminal case, which touches life or member, give a privy verdict. But the judges may adjourn, while the jury withdraw to confer, and return to receive the verdict in open court.
Verdict, General or Special. Such public, or open verdict, may be either general, guilty or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and hence choose to leave it to the determination of the court.
Power of the Judge. The practice, formerly in use, of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for rendering a verdict, contrary to the direction of the judge, was arbitrary, unconstitutional and illegal. If the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances, where, contrary to evidence, the jury have found the prisoner guilty, their verdict has been mercifully set aside, and a new trial granted. But there has been no instance of granting a new trial, where the prisoner was acquitted upon the original trial.
Result of Verdict. If the jury find the prisoner not guilty, he is then forever discharged of the accusation, except he be appealed of felony within the time limited by law. And upon his acquittal or discharge, for want of prosecution, he shall be immediately released, without payment of fee to the jailer. But if the jury find him guilty, he is then said to be convicted of the crime, whereof he stands indicted. He may be convicted, either upon confessing the offence, and pleading guilty, or by his being found so by the verdict.
Costs and Expenses of Prosecutor. On conviction of the offender, two collateral circumstances at once arise. On a conviction, or even upon an acquittal, where there was a reasonable ground to prosecute, and in fact a bona fide prosecution, for any felony, the reasonable expenses of prosecution, and also if the prosecutor be poor, a compensation for his trouble and loss of time, are to be allowed him out of the county, if he petitions the judge for that purpose; and by further statute, witnesses are to be also paid.
Restitution of Goods. On a conviction for larceny, in particular, the prosecutor shall have restitution of his goods. For, by the common law, there was no restitution of goods upon an indictment; because it is at the suit of the king only, and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again. A later statute, enacts, that if any person be convicted of larceny, by the evidence of the party robbed, he shall have full restitution of his money and goods, or the value of them, out of the offender's goods, if he has any, by writ, to be granted by the justices. This has, in practice, superseded the use of appeals in larceny.
Rights of Purchasers of Stolen Goods. This writ of restitution shall reach the goods so stolen, even though the goods have been sold in market overt. This seems hard upon the buyer; yet the rule of law is, spoliatus debet, ante omnia, restitui. As either the owner or buyer must suffer, the law prefers the right of the owner, who has sought to pursue the felon to punishment, to the right of the buyer.
Writ of Restitution. Trover. It is now usual for the court, upon the conviction of a felon, to order, without any writ, immediate restitution of such goods, as are brought into court, to be made to the prosecutors. Without such writ of restitution, the party may peaceably retake his goods, wherever he finds them, unless a new property have been fairly acquired therein. If the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for such goods, and recover a satisfaction in damages. But such action does not lie before prosecution, for so felonies would be settled ; and also recaption is unlawful, if done with intent to compound the larceny; it then becoming the heinous offence of theft-bote.
Settlement with the Prosecutor. It is not uncommon, when a person is convicted of a misdemeanor, affecting mainly an individual, as a battery, for the court to permit the defendant to speak with the prosecutor before judgment is pronounced ; and if the prosecutor then declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor