But the questions must be confined to matters touched on or referred to in the cross-examination. Where, however, any new matter occurs to the counsel as important, he may request the court to examine respecting it, or allow him to do so; and this indulgence, if properly asked, is always granted. When the questions are put by the court, as is the regular course, it is also of course for the court to put any questions suggested on the new matter by the other side; and when the examining counsel is himself suffered to put them, his adversary has, of course, the right of cross-examining upon them.

Examination by the Court or Jury.]-When the examinations of each witness by counsel are concluded, any of the justices or jurors may put such questions as occur to him to be fitting for the further elucidation of the matter in issue; and for this purpose, the court may recall a witness at any stage whatever of the inquiry, even after the case for the prosecution is closed, and an objection has been taken to the evidence (p). Counsel may cross-examine on this evidence (q). So a witness may be recalled at request of a juror (r).

SECTION XIII.

OF THE DEFENCE, REPLY, AND SUMMING-UP.

Office of Counsel for a Prisoner.]—When the case for the prosecution is closed, the chairman, in all cases where the prisoner has no counsel, asks him what he has to say in answer to the charge. A prisoner's counsel has now the same right to address the jury in felony on the merits, which he formerly had in misdemeanour only; for by sect. 2 of 6 & 7 W. IV. c. 114, "all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law, or by attorney in courts where attornies practise as counsel." He may also now submit to the bench any point of law arising on the evidence, or any deficiency in proof of a part of the charge, which may entitle his client to an acquittal. Thus, he may suggest that there is no evidence that any part of the offence occurred within the county where the trial is had, or within 500 yards of its boundary; that there is a substantial vari

(p) R. v. Remnant, R. & Ry. 136. (9) R. v. Watson, 6 C. & P. 653.

(r) Post, p. 571.

ance between some material allegation and the proof offered to support it; or that the offence, supposing the evidence to be credible, does not amount in law to that which is charged, e. g. that an appropriation charged as a larceny is a mere breach of trust, or such an embezzlement as is only a misdemeanour (s); for these are matters which show that the prisoner ought not to be put on his defence. He may sometimes submit that there is nothing for the jury to consider, as when no evidence in the case has brought the charge near to his client; and, if the bench think so, they will direct an acquittal; but no question can be thus withdrawn from the inquiry, where there is any evidence, however slight. Where an objection is taken which the bench do not immediately overrule, the counsel for the prisoner are first heard in its support; the counsel for the prosecution then give their answer to it seriatim; and the leading counsel for the prisoner replies; after which the justices deliberate, and the chairman, after collecting their votes, announces their decision. Where the objection relates to the absence of some formal proof, which can be immediately supplied, the court always allows such proof to be given, for it will not permit justice to be defeated by a mere accidental omission of counsel. When the bench has decided that the case for the prosecution has failed in point of law, the accused is entitled to his acquittal. Accordingly the chairman ought not to recommend, but simply to direct the jury to acquit, and the officer ought immediately to take and record the verdict (t).

Address of Prisoner or his Counsel.]-Where there is evidence which ought to be submitted to the jury, the accused or his counsel is now entitled to address them, and to comment on the entire case for the prosecution. If he thinks it discreet to adduce evidence, he should now open that evidence to any extent, and with any particulars which he may think proper; but he must not assume as proved that which is not proved (u), nor is he at liberty to introduce new matter, whether it be the prisoner's story or not, unless he proposes to establish it by legal evidence (x) and if in point of fact he does introduce the prisoner's account of the facts without intending to support it by evidence, the

(8) See 7 & 8 G. IV. c. 29, s. 51, as to pledging goods or bills of lading, by factors.

(t) Lord Tenterden's course on acceding to an objection was merely to tell the jury, "Gentlemen, I am of opinion that, in point of law, the case has failed, and therefore you will say that the defendant is not guilty;" on which the

officer immediately said, "Gentlemen, you will say the defendant is not guilty;" to which they assented, and the verdict was recorded.

(u) Ante, p. 552.

(a) If a case were necessary, R. v. Beard, 8 C. & P. 142, might be mentioned.

prosecutor will have a reply (y). It was formerly held on the trial of misdemeanours, that an accused who addressed the jury in person, must also examine and cross-examine without the assistance of counsel, though he might have it for suggesting questions to him, and arguing such points of law as arose (z); but no such division of the conduct of a case is now sanctioned (a). Though, since the prisoners' counsel act, a very acute judge allowed a prisoner charged with felony to state his own story in his own way to the jury, and his counsel to be afterwards heard (b); this will only be allowed in very special cases indeed (c). Where the party accused is obliged to defend himself, any statement which he may make ought to be the more attentively heard, and though not made on oath, or supported by proof, still, if it offers a reasonable explanation of the circumstances which seem to bear against him, should be carefully weighed and candidly estimated by a jury.

Where several persons are jointly indicted either for felony or misdemeanour, and are defended by different counsel, each counsel may cross-examine for his client, and each address the jury in such order as the judge in his discretion shall permit (d); and may call on them to address the jury, not in the order of their seniority, but in that in which the names of the prisoners stand on the indictment. However, where the counsel for one has witnesses to facts to examine, the counsel for another cannot be allowed to postpone his address till after those witnesses have been examined (e).

Evidence in Answer to the Charge.]-It is, of course, impossible to lay down general rules for the conduct of defences. They may consist of evidence tending to explain the circumstances on which a

(y) Reg. v. Butcher, 2 M. & Rob. 228, per Coleridge, J.; and see R. v. Bignold, ante.

(z) R. v. Parkins, 1 C. & P. 548; Ry. & M. C. N. P. 166, S. C.; R. v. White, 3 Campb. 98. See 1 M. & Rob. 254, Shuttleworth v. Nicolson.

(a) See ante, p. 151.

(b) Alderson, B., in R. v. Malings, 8 C. & P. 242. The learned judge alluded to the practice in high treason; however, Gurney, B., desired that this course should not be drawn into a precedent, Reg. v. Walkling, 8 C. & P. 243; and Bosanquet, J., held, that where a prisoner (even in misdemeanour) is defended by counsel, he has no right to make two statements to the jury, one by himself, the other (and later) by his

counsel, Reg. v. Burrows and two others, 2 M. & Rob. 124. Coleridge, J., refused to hear a prisoner for felony, after his counsel had addressed the jury, R. v. Boucher, 8 C. & P. 141.

(c) "For, if what the prisoner states is merely a comment on what is already in evidence, his counsel can do that much better than he can; whereas if he states as a fact any thing which could not be proved by evidence, the jury should dismiss that statement from their minds." Per Patteson, J., in Reg. v. Mary Rider, 8 C. & P. 539.

(d) Fletcher v. Crosbie, 2 M. & Rob. 417, Rolfe, B., nor is the order of seniority imperative, S. C.

(e) Reg. v. Barber and others, C. & K. 434.

charge mainly rests; or of the evidence of witnesses present at a transaction tending to contradict directly the statement of the witnesses for the prosecution; or of evidence tending to show that the prisoner could not be guilty of the crime, because he was in another place at the period when it is said to have occurred, and which is popularly called an alibi; or of evidence calculated to show that the witnesses for the prosecution are unworthy of credit, by contradicting them upon points of their evidence relative to the transaction; or lastly, of evidence tending to show the improbability of the prisoner's guilt, by proving that he has borne a character for qualities the reverse of those which would produce the criminality imputed. The two last of these grounds of defence are all which require observation here, because they alone involve questions of evidence differing from those which govern the proofs in support of the charge.

Drunkenness, or Insanity.]-Drunkenness at the time of committing the offence affords no excuse, but is rather an aggravation of the act (f), and this is so even in murder, where premeditated malice is a necessary ingredient. Insanity at the time of committing the act will be a defence, if it be clearly proved that the accused was then labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or as not to know that it was wrong (g). A medical man who has been present in court and heard the evidence may be asked as a matter of science whether the fact stated by the witnesses, supposing them true, show a state of mind incapable of distinguishing between right and wrong (h).

Infancy.]-When a child of any age between seven and fourteen is indicted, it should be left to the jury to say, first, whether the offence was committed by the prisoner, and if it was, then whether at the time it was so committed the child knew that it was wrong; and the legal presumption being that a child of that age has not such (viz. guilty) knowledge, it is for the prosecutor to rebut it by evidence (i).

(f) Co. Lit. 247; R. v. Carroll, 7 C. & P. 145; 1 Hale, 32; R. v. Meakin, 7 C. & P. 297.

(g) Mac Naughten's case, 10 Cl. & Fin. 200.

(h) S. C. In Reg. v. Higginson, C. & Kir. 129. Maule, J., (who had differed from the other judges in Dom. Proc., in Reg. v. Mac Naughten) asked the jury, Whether the prisoner at the time of committing the offence was so insane as

not to know right from wrong?

(i) R. v. Elizabeth Owen, 4 C. & P. 236; see 1 Hawk. ch. I. s. 8. In York's case, Foster, 70, which occurred in 1748, a little girl of five years old, supported in a parish workhouse, was murdered by blows, and her body found concealed in a dunghill. A boy of ten years old, who inhabited the same house, confessed several times that he had deliberately murdered her; giving a methodi

Defence by Wife on ground of Coercion by Husband.]—The general rule governing this line of defence is, that a wife cannot be convicted of a bare theft or even of a burglary committed in the company of her husband; such act of hers being presumed to be done under his coercion, and therefore punishable in his person only. But this is in all cases merely a presumption, open like all others to be rebutted by evidence to the contrary; for if the husband is crippled or bed-ridden, or if she is the principal actor in and incitor to the felony, she seems punishable as well as the husband (k). And it is quite clear that if in his presence she commits treason, homicide, robbery, or perjury, or as it would seem, any felony accompanied with violence; or if in his absence she steals, or takes an active and independent part in receiving stolen goods, or in receiving a person whom she knows to have committed felony; or utters a forged order for the payment of money; or aids or abets her husband in assaulting another, and causing a bodily injury dangerous to life, she will be liable as if she were sole, though her offence may have been planned or commanded by her absent husband (1). For offences of this nature committed by a wife in the absence of her husband they may be indicted together, charging the wife as principal, and the husband as accessory (m).

cal and consistent detail of a multitude of circumstances, showing what Lord Hale calls (1 Hale. 630) a "mischievous discretion" in himself. He was found guilty, but sentence was respited for the opinion of the judges. They all thought that to spare this criminal merely on account of his age would be of very dangerous consequence, considering the many serious offences, as arson, &c. of which children are capable. However, many reprieves were granted to afford time to investigate the origin of the matter more closely, but no light being cast on it, it was resolved to grant no more of them; when, after nine years, a pardon was granted at the Summer Assizes, 1757, on condition of the prisoner immediately entering the sea service.

Indictment for assault with intent to commit rape. The prisoner did not penetrate the person, and was sworn to be about fourteen. Held, that as he could not, in point of law, be guilty of an assault with intent to commit rape, he could not be proved to be able to commit it. Convicted on second count for common assault. Per Patte

son, J., in Reg. v. Philips, 8 C. & P. 736. Again, in Reg. v. Jordan and another, 9 C. & P. 118, it was held, that a boy under fourteen cannot be found guilty of a rape, or of feloniously abusing and carnally knowing a girl under ten, though he has arrived, physically, at full puberty.

(k) See R. v. Archer, 1 Mood. C. C. 143, cited in R. v. Cruse et ux. 2 id. 53; R. v. Hughes, 1 Russ. Cr. 18, relied on in R. v. Cruse, 2 Mood. C. C. 58.

(1) See 1 Hawk. c. 1, s. 2, 9; 1 Hale, 45, 47, 516, 621; 2 East, P. C. 552; R. v. Sarah and John Morris, R. & Ry. C. C. 270, S. C.; 2 Leach, 1096; R. v. Eliza Archer and others, 1 Moo. C. C. 143; R. v. Dicks, 1 Russ. C. & M. 16. The original reason for this privilege may have been that suggested by Mr. Christian, in a note to his edition of Blackstone, 4th vol. p. 29, that the wife could not pray benefit of clergy as the husband might. As to wife's aiding and abetting her husband's felonious assault on another, see R. v. Cruse, post.

(m) See last note.