treason and felony all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him. (54) When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged, (55) (unless in cases of evident necessity) (x) till they have given in their verdict, (56) but are to consider of it, and deliver it in, with the same forms as upon civil causes; only they cannot, in a criminal case which touches life or member, give a privy verdict. (y)(57) But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. (z)(58) And 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 [*361 the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. (59) This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths(60) and if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner. (a) But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdicts contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago; who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England. (b) (61) For, as Sir Matthew Hale well observes, (c) it would be a most (x) Co. Litt 227. 3 Inst. 110. Fost. 27. Gould's case, Hil. 1764. (y) 2 Hal. P. C. 300. 2 Hawk. P. C. 439. (z) 3 St. Tr. 731. 4 St. Tr. 231, 455, 485. (a) 2 Hal. P. C. 310. (54) If the prisoner is absent either in prison or by escape, there is want of jurisdiction over the person to proceed with the trial or to receive the verdict or to pronounce the final judgment. Hutchinson v. State, 3 Cald. (Tenn.) 97 (1866). Andrews v. State, 2 Snead (Tenn.) 553 (1855). (55) The discharge of a jury is within the discretion of the court. Winsor v. The Queen, I L. R. (Q. B. D.) 305, 324 (1866). The United States v. Bigelow, 3 Mackey (D. C.) 416 (1884). United States v. Penz, 9 Wheaton, U. S. 579 (1824). Grace v. McKissack, 49 Ala. 166 (1873). Ned, the Slave v. State, 7 Porter (Ala. ) 209 (1838). People v. Olcott, 2 John. Cases, 301. Proffatt on Jury Trials, 536 (1877). And after the testimony is closed and the defendant heard in his defence, a nolle prosequi [To be unwilling to proceed] will not be entered since an acquittal on such evidence, if fair, is conclusive. State v. Davis, 4 Blackf. (Ind.) 346 (1852). (56) It is now settled that when a criminal trial runs to such a length as it cannot be concluded in one day, the court, by its own authority, may adjourn till the next morning; but the jury must be somewhere kept together, that they may have no communication but with each other. Stone's Case, 6 T. R. 527.-CHRISTIAN. (57) In this country by way of substitute for a privy verdict and to allow a jury to separate after they have come to an agreement, a practice has been adopted in civil actions and in cases of misdemeanors, if not of all but capital crimes, of directing the jury if they should agree during adjournment of court to sign and seal up the verdict and come in and affirm it at the next opening of court. Comm. v. Tobin, 125 Mass. 206 (1878). State v. Engles, 13 Stanton (O.) 494 (1844). (58) 2 Barb. Crim. Law, 758 (1883). (59) The jury may find a special verdict in criminal cases as well as in civil actions: they may do so even in capital cases. But in modern practice this is very unusual. Archbold's Crim. Pr. & Plead. 570 (1877). (60) In this country, the best authorities hold that the jurors are not judges of the law. State v. Burpee, 65 Vt. 25 (1892). Comm. v. Anthes, 5 Gray (Mass.) 185 (1855). Duffy v. People, 26 N. Y. 588 (1863). U. S. v. Anthony, 11 Blatch. 204 (1873). Erving v. Crad dock, I Quincy (Mass.) 566 (1861). Townsend v. State, 2 Blackf. (Ind.) 159 (1828). (61) State v. Pike, 49 N. H. 211 (1870). I unhappy case for the judge himself if the prisoner's fate depended upon his directions: unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances(b) where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of king's bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial where the prisoner was acquitted upon the first. (c) (62) If the jury therefore find the prisoner not guilty, he is then forever quit and discharged of the accusation, (d) except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge *362] for want of *prosecution, he shall be immediately set at large without payment of any fee to the gaolor. (e) But if the jury find him guilty, (ƒ) (63) he is then said to be convicted (64) of the crime whereof he stands indicted; which conviction may accrue two ways-either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country.(65) When the offender is thus convicted, there are two collateral circumstances that immediately arise. 1. On a conviction (or even upon an acquittal where there was a reasonable ground to prosecute, and in fact a bona fide(66) prosecution) for any grand or petit larceny or other felony, the reasonable expenses of prosecution, and also, if the prosecutor be poor, a compensation for his trouble and loss of time, are, by statutes 25 Geo. II. c. 36 and 18 Geo. III. c. 19, to be allowed him out of the county stock, if he petitions the judge for that purpose; and by statute 27 Geo. II. c. 3, explained by the same statute, (18 Geo. III. c. 19,) all persons appearing upon recog (62) No new trial can be granted in cases of felony or treason, (Rex v. Mawbey, 6 T. R. 638; and see 13 East, 416, n. b.;) but in cases of misdemeanor it is entirely discretionary in the court whether they will grant or refuse a new trial. Id. ibid. A new trial cannot, in general, be granted on the part of the prosecutor after the defendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor's witnesses or neglecting to give due notice of trial, a new trial may be granted. 1 Chitt. C. L. 657.—CHITTY. Weinzorphlin v. State, 7 Blackf. (Ind.) 197 (1844). And in this country, as a rule in criminal cases, errors are not subject to revision at the instance of the state. State v. Jones, 7 Ga. 424 (1849). People v. Comstock, 8 Wend. (N. Y.) 549 (1832). State v. Upton, 5 La. Ann. 438 (1850). United States v. Salter, 1 Pinney (Wis.) 281 (1843). (63) Under the general verdict of guilty, sentence for the highest offence charged in the indictment, is proper. Hawker v. People, 75 N. Y. 487 (1893). (64) When a prisoner pleads guilty to an indictment, he confesses and convicts himself of all that is duly charged against him in that indictment. Green v. Comm., 94 Mass. 172 (1866). Burgess v. Boetefeur, 8 Scott's New Rep. 194, 211 (1844). The conviction and sentence are each liable in turn to be attacked and tested separately. York Co. v. Dalhousen, 45 Pa. St. 375 (1863). Comm. v. Richards, 34 Mass. 296 (1835). Comm. v. Lockwood, 109 Mass. 326 (1872). Nelson v. State, 47 Miss. 625, 630 (1873). 2 Wharton Crim. Law, 313 (1883). (65) Com. v. Lockwood, 109 Mass. 323, 326 (1872). The state cannot split up one crime and prosecute it in parts, a prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime. Regina v. Elrington, 9 Cox C. C. 86. Jackson v. State, 14 Ind. 327 (1859). Moore v. State, 71 Ala. 310 (1882). (66) [In good faith.] nizance or subpana to give evidence, whether any indictment be preferred or no, and as well without conviction as with it, are entitled to be paid their charges, with a further allowance (if poor) for their trouble and loss of time. (67) 2. On a conviction of larceny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11.(68) 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. (g) But, it being considered that the party prosecuting the offender by indictment deserves to the full as much encouragement as he who prosecutes by appeal, this statute was made, which enacts that if any person be convicted of larceny by the evidence of the party robbed, he shall have full restitution of his money, goods, and chattels, or the value of them out of the offender's goods, if he has any, by a writ to be granted by the justices. And, the construction of this act having been in great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals in larceny. For instance: as formerly upon appeals, (h) so now upon indictments of larceny, this writ of restitution *shall reach the goods [*363 so stolen, notwithstanding the property (i) of them is endeavored to be altered by sale in market-overt. (k) And though this may seem somewhat hard upon the buyer, yet the rule of law is that "spoliatus debet, ante omnia, restitui," (69) especially when he has used all the diligence in his power to convict the felon. And, since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. And 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 several prosecutors. (70) Or else, secondly, without such writ of restitution, (g) 3 Inst. 242. (h) Bracton de Coron. c. 32. (i) See book ii. page 450. (67) These acts are now all repealed, and new provisions on the same subject are made, by 7 Geo. IV. c. 64, s. 22, et seq., [And the following].-CHITTY. (68) Repealed, by 7 & 8 Geo. IV. c. 27; and, by 7 & 8 Geo. IV. c. 29, s. 57, (now repealed by 24 & 25 Vict. c. 96, 100, which contains an exception of the provisions of the section as to trustees, bankers, etc.) "to encourage the prosecution of offenders," it is enacted that if any person guilty of any felony or misdemeanor under that act in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner, provided, that if it shall appear before any award or order made that any valuable security shall have been bona fide [In good faith], paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, shall have been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect, that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security. The proviso in this clause seems to be new, and the enacting part of it makes some very important alterations in the law, as the former act of parliament extended only to cases of prosecutions of thieves, and not receivers, and did not include property lost by false pretences or by other misdemeanors.-CHITTY. (69) ["Restitution should be made to the person robbed before all others."] (70) Upon conviction of a thief, the owner is entitled to the goods or money stolen. the party may peaceably retake his goods, wherever he happens to find them, (7) unless a new property be fairly acquired therein. Or, lastly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods and recover a satisfaction in damages. But such action lies not before prosecution, (71) for so felonies would be made up and healed; (m) and also recaption is unlawful, if it be done with intention to smother or compound the larceny, it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter. (n) (72) It is not uncommon when a person is convicted of a misdemeanor which principally and more immediately affects some individual, as a battery, im ment. prisonment, or the like, for the court to permit the defendant to speak *364] with the prosecutor *before any judgment is pronounced, and, if the prosecutor declares himself satisfied, to inflict but a trivial punishThis is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice; and, though it may be intrusted to the prudence and discretion of the judges in the superior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter sessions, where prosecutions for assaults are by this means too frequently commenced rather for private lucre than for the great ends of public justice. Above all, it should never be suffered where the testimony of the prosecutor himself is necessary to convict the defendant, for by this means the rules of evidence are entirely subverted: the prosecutor becomes in effect a plaintiff, and yet is suffered to bear witness for himself. Nay, even a voluntary forgiveness by the party injured ought not in true policy to intercept the stroke of justice." This," says an elegant writer, (o) who pleads with equal strength for the certainty as for the lenity of punishment, "may be an act of good nature and humanity, but it is contrary to the good of the public. For, although a private citizen may dispense with satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs not to any one individual in particular, but to the society in general, or the sovereign who represents that society: and a man may renounce his own portion of this right, but he cannot give up that of others." *365] CHAPTER XXVIII. OF THE BENEFIT OF CLERGY. *AFTER trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance, of which the principal is the benefit of clergy;(1) a title of no small (7) See book iii. p. 4. (m) 1 Hal. P. C. 546. (n) See page 133. (0) Becc. ch. 46. And if goods stolen have been openly sold restored even from an innocent purchaser. Bassett's Crim. Pl. 80 (1885). Lance v. Cowan, I Dana (Ky.) 196 (1833). in market overt the owner may have them Waterman's Crim. Pro. vol. 1, p. 707 (1860). (71) The civil remedy is suspended and not merged or destroyed, and after the offender is convicted, an action may be brought for the same cause as that on which the prosecution was founded. Waterman's Crim. Pro. vol. 1, p. 706. Adams v. Barrett, 5 Ga. 411 (1849). (72) The statutes of the several states have generally defined the cases and circumstances in which the compromise of a prosecution shall be allowed. Partridge v. Hood, 120 Mass. 405 (1876). (1) This has long since been abolished. curiosity as well as use, and concerning which I shall therefore inquire: 1. Into its original, and the various mutations which this privilege of clergy has sustained. 2. To what persons it is to be allowed at this day. what cases. 4. The consequences of allowing it. 3. In I. Clergy, the privilegium clericale, or, in common speech, the benefit of clergy, had its original from the pious regard paid by Christian princes to the church in its infant state, and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions which they granted to the church were principally of two kinds: 1. Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale. But the clergy, increasing in wealth, power, honor, number, and interest, began soon to set up for themselves; and that which they obtained by the favor of the civil government they now claimed as their inherent right, and as a *right of the highest nature, indefeasible, and jure [*366 divino.(a)(2) By their canons therefore and constitutions they endeavored at, and where they met with easy princes obtained, a vast extension of these exemptions, as well in regard to the crimes themselves, of which the list became quite universal, (b) as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen. In England, however, although the usurpations of the pope were very many and grievous till Henry the Eighth entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavored by the clergy:(c) and, therefore, though the ancient privilegium clericale was in some capital cases, yet it was not universally, allowed. And in those particular cases the use was for the bishop or ordinary to demand his clerks to be remitted out of the king's courts as soon as they were indicted: (3) concerning the allowance of which demand there was for many years a great uncertainty; (d) till at length it was finally settled in the reign of Henry the Sixth that the prisoner should first be arraigned, and might either then claim his benefit of clergy, by way of declinatory plea, (4) or after conviction, by way of arresting judgment. This latter way is most usually practiced, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted and so need not the benefit of his clergy at all. Originally the law was held that no man should be admitted to the privilege of clergy but such as had the *habitum et tonsuram [*367 clericalem. (e)(5) But in process of time a much wider and more (a) The principal argument upon which they founded this exemption was that text of Scripture, "Touch not mine anointed, and do my prophets no harm." Keilw. 181. (b) See book iii. page 62. (2) [By divine right.] (3) The records must show that indictments found and bills ignored were returned into open court, and if it does not appear on the records the conviction will be reversed on the grounds of error. Bassett's Cr. Pl. 187 (1885). Yundt v. People, 65 Ill. 372 (1872). State v. Glover, 3 Ia. 249 (1856). Hite v. State, 2 Yerg. (Tenn.) 198 (1820). (4) An executive pardon in full force when the defendant is arraigned must be specially pleaded, but if issued after the arraignment it may be brought to the notice of the court at any stage of the trial. Abbott's Crim. Briefs, sec. 131 (1889). (5) [A clerical gown and shaving of the head.] |