ney for the prosecution, that a witness whose evidence was sworn to be material, was too ill to attend, and they refused to refer to the deposition of the witness to ascertain whether he deposed to material facts. Where in a case of murder committed in Newcastle-uponTyne, which had created great excitement, a newspaper published in the town had spoken of the prisoner as the murderer, and several journals down to the time of the assizes had published paragraphs, *201] *implying or tending to show his guilt, and it appeared that the jurors at such assizes were chosen from within a circle of fifteen miles round Newcastle, where such papers were chiefly circulated, but that at the summer assizes they would be taken from the more distant parts of the county of Northumberland (into which the indictment had been removed) Alderson and Parke, BB., postponed the trial until the following assizes. Alderson, B., however, said, "I yield to the peculiar circumstances of the case, wishing it to be understood that I am by no means disposed to encourage a precedent of this sort." R. v. Bolam, Newcastle Spring Ass. 1839, MS.; 2 Moo. & R. 192. See also R. v. Joliffe, 4 T. R. 285. And in R. v. Johnson, 2 C. & K. 354, the same learned judge refused to postpone the trial of a prisoner charged with murder, on the ground that an opportunity might be thereby afforded of investigating the evidence and characters of certain witnesses who had not been examined before the committing magistrate, but who were to be called for the prosecution to prove previous attempts by the prisoner on the life of the deceased. A trial for murder was postponed till the next assizes by Channell, B., upon an affidavit of a medical man as to a witness being unable to travel, although such witness was not examined before the magistrate, and although the trial had been fixed for a particular day. R. v. Lawrence, 4 F. & F. 901.

In general a trial will not be postponed to the next assizes before a bill is found. R. v. Heesom, 14 Cox, C. C. 40. But where it was shown that the attendance of witnesses, inmates of a workhouse in which small-pox had broken out, was necessary, Bagallay, L. J., did not require any bill to be sent up before the grand jury but postponed the trial to the next assizes, admitting the prisoner to bail in the meantime. R. v. Taylor, 15 Cox, C. C. 8. No objection appears to have been taken on the part of the prisoner to the postponement.

In no instance will a trial be put off on account of the absence of witnesses to character. R. v. Jones, 8 East, 34.

Where the prisoner applies to postpone the trial, he will be remanded and detained in custody till the next assizes or sessions, or will be admitted to bail, but he is never required to pay the costs of the prosecutor. R. v. Hunter, 3 C. & P. 591, 14 E. C. L. Where the application is by the prosecutor, the court in its discretion will either detain the prisoner in custody, or admit him to bail, or discharge him on his own recognizances. R. v. Beardmore, 7 C. & P. 497, 32 E. C. L. R. v. Parish, Id. 782; R. v. Osborne, Id. 799; see also R. v. Crowe, 4 C. & P. 251, 19 E. C. L. A motion to put off a trial on an indictment for felony made on behalf of the prisoner, cannot be entertained until

relating to coin it is provided by the 24 & 25 Vict. c. 99, s. 37, that it shall be sufficient in any indictment after charging the subsequent offence to state the substance and effect only (omitting the former part) of the indictment and conviction for the previous offence (see R. v. Martin, L. R., 1 C. C. R. 214; 39 L. J., M. C. 31, post, "Coin ;" and see the new form for an indictment under s. 12 of the above statute in consequence of the decision in this case. Arch. Criminal Pl., 18th ed. 792.) In both the Larceny Act and the Coinage Act it is necessary that the subsequent offence should be first stated; but in other cases it is immaterial which offence is first stated, R. v. Hilton, 28 L. J., M. C. 28. The effect of alleging a previous conviction in an indictment for uttering counterfeit coin is to make the offence charged a felony, and if the jury negative the previous conviction, the prisoner cannot be found guilty on *the charge of felony, as it is not proved, nor of a misdemeanor of uttering, as the indictment is for a felony. R. v. Thomas, L. R. 2 C. C. R. 141; 44 L. J., M. C. 42.

[*194

The state of the law with respect to the power to insert a count for a previous conviction is peculiar. The Act of Geo. 4 enables a count for previous conviction for felony only to be inserted in an indictment for felony only. The Larceny Act (sect. 116, supra) seems to permit a count for previous conviction for any felony, misdemeanor, or offence punishable by summary conviction to be inserted in an indictment for any offence under that act. The Coinage Act permits a count for previous conviction for any offence against that act to be inserted in an indictment for any offence against that act. The result of these Acts is that in indictments for misdemeanors and offences not felonies, which are not included in the Larceny or Coinage Acts, a previous conviction cannot be charged at all, and under the Coinage Act only a previous conviction for offences against that act. In R. v. Deane, 46 L. J., M. C. 155, it has however been held that in consequence of the 27 & 28 Vict. c. 47, s. 2, a count for a previous conviction of felony may be inserted in an indictment for any crime punishable with penal servitude, and therefore in an indictment for false pretences, and the decision in R. v. Garland, 11 Cox, C. C. 224 (Irish), is thus overruled. It is still doubtful whether in misdemeanors under the Larceny Act not punishable by penal servitude a previous conviction can be inserted in the indictment.

In cases of receiving stolen goods, etc., it is not necessary under the 34 & 35 Vict. c. 112, s. 19, to charge in the indictment the previous conviction of the person so accused, but seven days' notice of the intention to prove the conviction must be given to the accused. In order to affect the judgment of the court as to the term of penal servitude to be awarded, the previous conviction must be stated in the indictment, see post, p. 233.

Copy of indictment. A prisoner is not entitled as of right to a copy of the indictment in order to draw up his plea, but the court will direct the indictment to be read over slowly, in order that it may be

attorney or solicitor-general, or (in the case of an indictment for perjury) by the direction of any court, judge, or public functionary, authorized by the 14 & 15 Vict. c. 100, so to direct." This Act is amended by the 30 & 31 Vict. c. 35, ss. 1, 2,-see post, Appendix of Statutes; and misdemeanors by fraudulent debtors are now within the acts. See post, See post, "Bankrupts." Offences under the Newspaper Libel Act are also within the Vexatious Indictments Act, see 44 & 45 *Vict. c. 60, s. 6. The consent in writing of the judge may

*193] be given ex parte, R. v. Bray, 32 L. J., M. C. 11.

An indict

ment contained two counts for obtaining goods by false pretences, one false pretence being laid on the 26th, the other on the 29th September. The defendant had been committed by the magistrates on the charge relating to the 26th, but not on that relating to the 29th. He moved to have the indictment or its second count quashed, which was refused. Evidence was admitted on both counts and a separate conviction and sentence passed on each. It was held upon a case reserved that the second count should have been quashed, and that as the evidence relating to it was inadmissible on the trial of the first count, the conviction on the first count was also bad. R. v. Fuidge, L. & C. 390; 33 L. J., M. C. 74. It is stated that this case suggested the passing of the 30 & 31 Vict. c. 35, s. 1, see 2 Chitty's Statutes, 297, 4th ed., and since the passing of that Act, it would seem that the consent to add new counts to an indictment must not be general so as to authorize the prosecution to add any number of counts, nor must the consent include counts founded on facts and evidence which were not disclosed before the committing magistrate. R. v. Bradlaugh, 15 Cox, C. C. 156; 47 L. T. p. 477. An attempt to obtain money or other property by false pretences is not within this statute. R. v. Burton, 13 Cox, C. C. R. 71.

It is not necessary that the indictment should state that the provisions of the sections have been complied with. R. v. Knowlden, 5 B. & S. 532, 117 E. C. L.; 33 L. J., M. C. 219.

As to this section with respect to perjury, see post, "Perjury."

Count for previous conviction. Various statutes have been passed permitting a statement to be made in the indictment that the prisoner has been previously convicted, and providing modes of proving that statement, and for arraigning the prisoner thereon, see post, p. 224.

With respect to the mode of stating the previous conviction in the indictment, the 7 & 8 Geo. 4, c. 28, s. 11, provided that it should be sufficient to state that the offender was at a certain time and place convicted of a felony without otherwise describing the previous felony. The Larceny Act, 1861, 24 & 25 Vict. c. 96, s. 116, provided that in any indictment for an offence under that act, it should be sufficient to state that the offender was at a certain time or place convicted of felony or of an indictable misdemeanor, or of an offence or offences punishable upon summary conviction without otherwise describing the previous felony, misdemeanor, offence, or offences. In offences

ordinary charge of assault upon A. B. The prisoner charged on such an indictment would have to satisfy the court, first, that the former indictment, on which an acquittal took place, was sufficient in point of law, so that he was in jeopardy upon it; and secondly, that in that indictment the same offence was charged, for the indictment is in such a form as to apply equally to several different offences. To *prove the identity of the offence may not always be easy. If [*203 more or less evidence is gone into on the first trial the difficulty

is little; if none is offered and the acquittal takes place, it is still an acquittal, entitling the prisoner to an exemption from any subsequent trial for the same offence. In such a case there is more difficulty in showing what the offence charged was, but it may be proved by the testimony of the witnesses who were subpoenaed to go, and did go, before the grand jury, by the proof of what they swore, or perhaps by a grand juryman himself, or by the evidence of the prosecutor, or by proof how the case was opened by the counsel for him; in short, by any evidence which would show what crime was the subject of the inquiry, and would identify the charge, and limit and confine the generality of the indictment to a particular case." 1

The difficulties pointed out by the learned baron have not been removed by decided cases; on the other hand, they have been increased by statutes which provide that on an indictment which charges one crime, the prisoner may be convicted of another crime of a similar nature, and other statutes which provide that a man may be convicted on an indictment which charges one crime though the facts show that the crime was somewhat different. Thus by the 14 & 15 Vict. c. 100, s. 9, on the trial of an indictment for felony or misdemeanor, the jury may find the person charged guilty of an attempt to commit the same; by the 24 & 25 Vict. c. 96, s. 41, on the trial of an indictment for robbery the jury may convict of an assault with intent to rob; by sect. 12, if upon the trial of any person for any misdemeanor it shall appear that the facts in evidence amount in law to a felony, such person shall not be entitled to be acquitted of the misdemeanor; by sect. 72, a person indicted for embezzlement may be convicted of larceny, and vice versa; by sect. 88, a person indicted for obtaining property by false pretences is not to be acquitted if the facts show that he was guilty of larceny; by sect. 94, on an indictment against several for jointly receiving, any one, or more, may be convicted for separately receiving. So by the 24 & 25 Vict. c. 94, accessories may be indicted as if they were principal felons. So by 24 & 25 Vict. c. 100, s. 60, a woman tried for the murder of her child may be found guilty of endeavoring to conceal its birth. In most of these cases it is provided, that the person who might have been convicted on the first indictment, shall not be liable to be tried again for the offence for which, though not indicted, he might have been convicted.

1 Faulk v. State, 52 Ala. 415. On the trial of a plea of autrefois acquit, the witness may be asked whether the verdict of the jury on the former trial for arson related to the same house as on the second indictment. It is a matter of fact, not of opinion. Page v. Commonwealth, 27 Gratt. (Va.) 954.

taken down. R. v. Parry, 7 C. & P. 836, 32 E. C. L. But the counsel for the prosecution may give a copy of the indictment with a view of saving time. Id. See also R. v. Newton, 1 C. & K. 469, 47 E. C. L. In the case of an acquittal on a prosecution for felony, a copy of the indictment cannot be regularly obtained without an order from the court. The rule is confined to cases of felony. In prosecutions for misdemeanors the defendant is entitled to a copy of the record as a matter of right, without a previous application to the court. Morrison v. Kelly, 1 Blackst. 385; Evans v. Phillips, MS.; 2 Selw. N. P. 952; 2 Phill. Ev. 10th ed., 162. See further, 3 Russ. Cri. 427, 428, 5th ed (ƒ), note by Greaves.1

Particulars. With respect to the general law relating to the delivery of particulars in criminal cases, very little is to be found in the books. Now that the indictment is in many cases perfectly general, it seems to be a matter of right that the prisoner should have some information as to the particular charges intended to be brought against him. Carr. Supp. 321. Those offences in which the right of the accused to particulars has been recognized, and in which they are most commonly required, are barratry, nuisance, *195] *offences relating to highways, conspiracy, and embezzlement. The law so far as relates to each of these classes will be found under those titles. See especially, as to barratry, Carr. Supp. 321. The learned author of this work, in speaking of the generality allowed in indictments for larceny and embezzlement, says, "Under these circumstances, it is hardly possible for an innocent man to know what charges he has to meet, because all of them may be included in one indictment; and, when there, they are wholly indefinite as to time, place, sum, and person, and from whom the money was received. It is true that the prisoner may, in his defence, say, that if he had had a knowledge of what particular sums he was charged with embezzling, he could have procured the attendance of witnesses to show that he had applied those moneys to his master's use, and not to his own; but as this may be as easily said by the most guilty man, as by the most innocent, it would not be much attended to by the jury."

It seems that the proper course is for the defendant to apply to the prosecutor in the first instance for particulars of the offence; and, if they are refused, to apply to the court or a judge, upon an affidavit of that fact, and that the accused is unable to understand the precise charge intended. R. v. Bootyman, 5 C. & P. 300, 24 E. C. L.; R. v. Hodgson, 3 C. & P. 422, 14 E. C. L.; R. v. Marquis of Downshire, 4 A. & E. 699, 31 E. C. L. The application may be made to the judge at the assizes; R. v. Hodgson, supra, where Vaughan, B., said he would, if necessary, put off the trial in order that particulars might be delivered. In barratry, however, it seems to be necessary to give

1By the Illinois statute it is mandatory upon the grand jury to indorse upon the indictment the names of those witnesses on whose testimony the indictment was found. Andrews v. People, 117 Ill. 195. See People v. Quick, 58 Mich. 321.