Relaxation of those rules. Additional ex amination of witnesses. And it is fineable for the jury to eat, though at their own charge, after they are departed from the bar; though it may not avoid the verdict.* But if any of the jury be ill, on special application to the Court, they may be indulged with meat, drink, or whatever be necessary, at their own cost, or in any way that is not likely to influence their verdict; but it ought not to be at the expence of any of the parties to the trial. + If the juror continue ill, or die before verdict, the proceedings are as if they had never commenced, and a fresh inquest must be charged to deliver the Prisoner. ‡ But if any of them misbehave themselves after their departure from the bar; as where they do not all keep together, till they have given their verdict, or where any of them carrying any thing catable with them in their pockets, eat or drink, or otherwise refresh themselves without leave from the court, before they have given their verdict, they shall be punished by fine. § But in an indictment for a misdemeanour, (conspiracy) which continued more than one day, the jury without the knowledge of defendant, separated all night. A new trial was moved for, on the ground that a jury cannot separate till a verdict has been given, without the consent of the parties, even supposing that such consent would make it lawful, which is doubtful. But per curiam, "Eliz. Canning's case, which lasted fifteen days, is decisive. Howel's also, St. Tri, vol. 19, p. 671. In the case of a misdemeanour the dispersion of the jury will not avoid the verdict. The judge may, if he think fit, forbid the separation, and if, in contempt of his authority, they separate, he may impose a fine upon them; but whether he consent, or not, the mere fact of separation, unaccompanied by any circumstance of suspicion or impropriety, cannot avoid a verdict." || If after their departure they desire to hear one of the * Bull. N. P. 308.-4 Black. Com. 361. + Dr. & Student, 158. § 2 Hawk. c. 22. || R. v. Kinnear et al. 1 Chit. R. 462. Note, however, the difference between the case of the dispersion of jurors pending the proceedings, and that of their dispersing after the Court has summed up the evidence and given the charge, before they shall have returned a verdict. witnesses again, it shall be granted, so he deliver his testimony in open court; and also they may desire to propound questions to the court, for their satisfaction, and it shall be granted, so it be in open court. * CORSeut. If the jury say they are not agreed, the court may ex- Cannot be dis amine them individually; and if in truth they are not charged but by agreed, they are fineable; † but a jury sworn and charged in a capital case cannot be discharged (without the Prisosoner's consent) till they have given a verdict; and that must be given also openly in court. ‡ be withdrawn in criminal cases. As to trials going off for want of jurors, by means of Juror cannot drawing a juror, it seems, 1st, That in capital cases a juror cannot be withdrawn, though all parties consent to it. 2dly, That in criminal cases not capital, a juror may be withdrawn, if both parties consent, but not otherwise. 3dly, That in all civil causes a juror cannot be withdrawn, but by consent of parties. § After the verdict is recorded, the jury cannot vary from it, but before it be recorded, they may vary from the first offer of their verdict; and this is not unfrequently done at the suggestion of the court, where it appears that the jury have misapprehended any fact, or the legal import, or application to the subject-matter, of any evidence. That verdict which is recorded shall stand. || But they may give a special verdict in any criminal case, whether capital, Special veror not capital, as well as in a civil. As if one be indicted dict. for grand larceny, that is for stealing goods above the value of 12d. yet the jury may find specially that he is guilty, but that the goods are not above the value of 12d. in which case he shall only have judgment for petit larceny. The effect of a special verdict is, that it finds the mere fact, and leaves the legal effect of such verdict to the judgment of the court. A verdict of this description however must find all the circumstances constituting the offence, for the court cannot supply them by reference or implication. 2 Hale, 296. 12 Hawk. c. 47.-Fost. C. L. 22. Co. Lit. 227. + Ibid. Carthew's R. 463, Cannot cast lats for verdict. Jurors when punishable for other con tempts. Thus, it must find (except in cases excepted by statute) that the fact was committed in the counts laid in the indictment, or no judgment can be given.* It is sufficient, however, if all the substantial requisites be found, which go to constitute the offence charged, though it do not exactly correspond with the indictment. + But the offence found by the verdict must be of the same kind, though it may vary in degree, as that laid in the indictment, or no judgment can be pronounced. As a man indicted for a midemeanour cannot be found guilty of facts that necessarily constitute a felony, or vice versά; at least if it be so, no judgment can be given. This however does not amount to an acquittal of the Prisoner, and he may be indicted again. ‡ At the assizes it is common, instead of a special verdict, to find a general verdict of guilty, but to have a special case reserved by the court on the point of law, for the consideration of the judges; but this practice cannot take place at sessions, because the judges will not take cognizance of a case reserved upon an indictment there. § If the jurors differ, and cast lots for their verdict, although it may be according to the evidence, and the opinion of the Court, they shall be fined for the contempt. But the court cannot receive an affidavit from any of the jurymen, that the jury were divided in opinion, and tossed up, in all of whom such conduct would be a very high misdemeanour; but, in every such case, the court must derive their knowledge from some other source; as from some persons having seen the transaction through a window, or by some such other means.** Jurors are likewise punishable for sending for, or receiving instructions from, the parties, concerning the matter in question, and therefore much more for receiving a bribe. So if a juryman have a piece of evidence in his pocket, and after the jury sworn and gone together, he sheweth it 2 Str. 1015.-Lamb. 406. ↑ 1 Str. 19.-2 Hawk. 47. 2 Str. 1113.-1 Leach, 12.—2 Str. 1019.-2 Ld. Raym. 1586. to them to influence their verdict, it is a misdemeanour fineable in the jury; but it avoids not the verdict. * But it is no offence in a juror merely to exhort his companions to join him in such a verdict as he thinks right; in criminal cases, but for and generally, it seems certain, that no one is liable to any Not punishable prosecution or punishment whatsoever, in respect of any verdict given by him in a criminal matter, adhering only to direct conthese plain rules, of justice and decency. For since the tempt. safety of the innocent, and punishment of the guilty, so much depend upon the fair and upright proceedings of jurors, it is of the utmost consequence that they should be as little as possible under the influence of any passion whatsoever; and therefore, lest they should be biassed with the fear of being harassed by a vexatious suit, for acting according to their conscience, the law will not leave any possibility for a prosecution. + verdict. When the jury are agreed on the verdict, the clerk calls Recording the them by their names, and asks them "if they are agreed in their verdict, and who shall say for them?" and calls the first Prisoner to the bar, and bids him hold up his hand. Then says to the jury, "Look upon the Prisoner, you that are sworn, what say you, is A. B. guilty of the felony whereof he stands indicted, or not guilty?" If they say Guilty, then the clerk asks them, "what lands or tenements, goods or chattels, he, the Prisoner, had at the time of the felony committed, or at any time since?" The jury's common answer is, "None to our knowledge." When the jury say, "Not guilty," then the clerk asks if he, the Prisoner, did fly for it, or not?" If they find a flight, it is recorded; but their common answer is, "Not to our knowledge." And so the clerk proceeds to every Prisoner particularly, which the jury hath in charge, writing after the words po. se. over the several names of the Prisoners, guilty, or not guilty, as the verdict is; and then says to the jury, "Hearken to your verdict as the court recordeth it; you say A. B. is guilty of the felony whereof he stands indicted, and that he hath no goods nor chattels; that C. D. is not guilty," and so of the rest; and then concludes, "and so you say all." In all cases of felony the verdict must be given in open court, and in the presence of the Prisoner.* In misdemeanours of importance to the public, the same solemnity is always observed; but in those of inferior import, and where only individuals are affected, it is common enough to return a verdict otherwise than in open court, and even in the absence of the defendant. + Such as have been found guilty by the jury, are called upon to say why judgment should not be passed upon them. They may now, therefore, if any errors appear upon the face of the words, (for to that species of error alone the Arrest of judg- privilege is confined,) ‡ move the court to arrest or stay the judgment; § but, as this is not an ordinary procedure of sessions, we will pass on to that which commonly occurs, viz. that the offender against whom a verdict has passed, offers something to the court in extenuation of his crime. ment. Address in extenuation of offence. If he offer nothing, or if what he do offer make no impression on the court, either in arrest or stay of judgment, or in mitigation of punishment, sentence is generally passed immediately. If, on the contrary, any doubt arise in the breasts of the court respecting the application of the law to the facts, or they wish to have time for examination into the circumstances of the offence, or the character of the offender, Adjournment it is usual to adjourn the session to a future day, in order to of judgment. give time for consultation, discussion, or inquiry, as the case may require. In this event, the manner of disposing of the defendant, during the interval, will depend on the nature of the offence of which he has been convicted, and the situation in which the course of the proceedings, previous to trial, may have placed him. If in custody, he will be recommitted to custody; if out on bail, he will, generally, be allowed to enter into a new recognizance to appear at the period of adjournment, to receive judgment. It is scarcely necessary |