By the Explosive Substances Act, 1883 (46 & 47 Vict. c. 3, s. 5), any person who within or (being a subject of Her Majesty) without Her Majesty's dominions by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any crime under this act, shall be guilty of felony, and shall be liable to be tried and punished for that crime, as if he had been guilty as a principal.

After he had pleaded, and stated in writing, that he had no objection to any of the jury, the trial proceeded. The judge's note of the evidence was handed to him, after the examination of each witness, and he was asked in writing if he had any question to put. The proof on the part of the prosecution being insufficient, he was acquitted without being called upon for his defence. R. v. Thompson, 2 Lew. C. C. 137. So the jury having found that the prisoner was mute by visitation of God, and then, being sworn to try whether he was of sound mind, found that he was, his counsel pleaded not guilty for him, and the trial proceeded in the usual manner and the evidence was not interpreted to the defendant. R. v. Whitfield, 3 C. & K. 121, coram Williams, J.

But where a prisoner is deaf and dumb, and cannot be made to comprehend the nature of the proceedings and the details of the evidence, the proper course is, after the jury have found him mute by the visitation of God, to reswear the jury to inquire whether he is able to plead to the indictment; and if that be found in the negative, then to swear them again, to inquire if the prisoner be sane or not, and if the jury find him to be insane, the judge will order him *to be confined under the 39 & 40 Geo. 3, c. 94, s. 2, post. "There are three points to be inquired into. 1st. Whether the [*199 prisoner is mute of malice or not. 2nd. Whether he can plead to the indictment or not. 3rd. Whether he is of sufficient intellect to comprehend the course of proceedings at the trial so as to make a proper defence." R. v. Pritchard, 7 C. & P. 303, 32 E. C. L.; R. v. Dyson, Id. 305 (n); R. v. Berry, L. R. 1 Q. B. D. 447 ; 45 L. J., M. C. 123.

If the prisoner stands mute of malice, or will not answer directly to the indictment, or information (for treason, felony, piracy, or misdemeanor), it is enacted by the 7 & 8 Geo. 4, c. 28, s. 2, that in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person, and the plea and the plea so entered shall have the same effect as if such person had actually pleaded the same.' And where the prisoner, who was indicted for murder, remained mute of malice, Erle, J., refused to assign counsel for his defence, as the prisoner's assent could not under the circumstances be given. R. v. Yscuado, 6 Cox, C. C. 386.

Where the prisoner refused to plead, on the ground that he had already pleaded to an indictment for the same offence, (which had been tried before a court not having jurisdiction), it was held that the court might order a plea of "not guilty" to be entered for him under the above statute. R. v. Bitton, 6 C. & P. 92, 25 E. C. L.

In cases of insanity it is enacted by the 39 & 40 Geo. 3, c. 94, s. 2, that if a person, indicted for any offence appears insane, the court may, on his arraignment, order a jury to be impannelled to try the sanity, and if they find him insane, may order the finding to be recorded, and the insane person to be kept in custody till his majesty's 1 United States v. Hare, 3 Wheeler's C. C. 285. S.

Preferring and finding bills of indictment. Before the passing of the 19 & 20 Vict. c. 54, it was necessary to swear the witnesses in open court before they could give evidence before the grand jury; but now, by s. 1 of that act, it is made "lawful for the foreman of every grand jury in England and Wales, and he is authorized and required to administer an oath to all persons whomsoever, who shall appear before such grand jury to give evidence in support of any bill of indictment, and all such persons attending before any grand jury to give evidence may be sworn and examined on oath by such grand jury touching the matters in question; and every person taking any oath or affirmation in support of any bill of indictment who shall wilfully swear or affirm falsely shall be deemed guilty of perjury; and the name of every witness examined, or intended to be so examined, shall be indorsed on such bill of indictment; and the foreman of such grand jury shall write his initials against the name of each witness so sworn and examined touching such bill of indictment." By s. 3, "the word 'foreman' shall include any member of such grand jury who may for the time being act on behalf of such foreman in the examination of witnesses."

It has been said that two indictments for the same offence, one for the felony under a statute, and the other for the misdemeanor at common law, ought not to be preferred or found at the same time. R. v. Doran, 1 Leach, 538; R. v. Smith, 3 C. &. P. 413, 14 E. C. L. But where two indictments had been found, one for stealing and another for a misdemeanor, and it was sworn that they were for the same identical offence, the Q. B. (into which court the indictments had been removed by certiorari), refused to grant a rule for quashing one or both of such indictments. R. v. Stockley, 3 Q. B. 328, 43 E. C. L.

The grand jury are not usually very strict as to evidence, as they only require that a prima facie case should be established; they often admit copies where the originals alone are evidence; and sometimes even evidence by parol of a matter which should be proved by written evidence. But as they may insist upon the same strictness of proof as must be observed at the trial, it may be prudent in all cases to be *provided, at the time the bill is preferred, with the same evi*192] dence which is intended afterwards to support the indictment. When the grand jury found, upon a bill preferred against A. and B. for murder, a true bill against A. for murder, and against B. for manslaughter, Campbell, C. J., held that the finding against A. was good, and that against B. a nullity, and directed that a fresh bill

should be preferred against B. for manslaughter. R. v. Bubb, 4 Cox, C. C. 455. Where the grand jury have found a bill, the judge before whom the case comes on to be tried ought not to inquire whether the witnesses were properly sworn previously to their going before the jury; and it seems that an improper mode of swearing them will not vitiate the indictment, as the grand jury are at liberty to find a bill upon their own knowledge only. R. v. Russell, Carr. & M. 247, 41 E. C. L.1

As to the grand jury in Ireland, see the 1 & 2 Vict. c. 37; also O'Connell v. Reg., 11 Č. & F. 155.

If the bill be not found, a fresh bill may afterwards be preferred to a subsequent grand jury, 4 Bla. Comm. 305. And it would seem from Bacon's Abridgment, Indictment D., that where a bill for one offence, such as murder, is ignored by the grand jury, another bill against the same party, relating to the same subject-matter, but charging another offence, such as manslaughter, may be preferred to and found by the same grand jury; and this course is frequently adopted in practice.

But if the grand jury at the assizes or sessions have ignored a bill, they cannot find another bill at the same assizes or sessions, against the same person for precisely the same offence, and if such other bill be sent before them they should take no notice of it. R. v. Humphreys, Carr. &. M. 601, 41 E. C. L.; R. v. Austin, 4 Cox, C. C. 385.

Where a true bill has been found by the grand jury at quarter sessions for a rape, the person against whom the bill is found may be tried upon it at the assizes. R. v. Allum, 2 Cox, C. C. 62.

A grand jury ought not to ignore a bill on the ground of insanity, but if they believe that the acts done, if committed by a sane person, would have amounted to the offence charged, it is their duty to find the bill, otherwise the court cannot order the party to be detained in custody under the 39 & 40 Geo. 3, c. 94, s. 2 (infra, p. 199). R. v. Hodges, 8 C. & P. 195, 34 E. C. L.

By the Act to prevent vexatious indictments for certain misdemeanors, 22 & 23 Vict. c. 17, s. 1: "no indictment for perjury, subornation of perjury, conspiracy, obtaining by false pretences, keeping a gambling-house, keeping a disorderly house, or an indecent assault, is to be presented to, or found by any grand jury unless the person presenting it has been bound by recognizance to prosecute or give evidence against the accused, or unless the accused has been committed to, or detained in custody, or bound by recognizance to appear and answer to the indictment, or unless the indictment be preferred by the direction or with the consent in writing of a judge of one of the superior courts of law at Westminster, or of her Majesty's

1 Hearing and information are not necessary to support an indictment. Commonwealth v. Clarke, 1 Pa. Sup. Ct. Dig. 24. It is no defence upon the trial that the indictment was found by the grand jury on insufficient testimony. Cotton v. State, 43 Tex. 169. But on evidence that the grand jury was improperly influenced, the indictment will be set aside. Their affidavits to the contrary are not admissible. People v. Sellick, 4 N. Y. Crim. Rep. 329. As to the time of challenging the grand jury, see People v. Geiger, 49 Cal. 643.