Upon an indictment for obtaining by false pretences, if the offence turns out to amount to larceny, the defendant may still be convicted of false pretences (s).

And whenever a person is indicted for an offence which includes in it an offence of minor extent and gravity of the same class, the prisoner may be convicted of such minor offence (t). Thus, on an indictment for murder, he may be convicted of manslaughter; so of simple larceny, if indicted for stealing in a dwelling-house, or any other aggravated form of larceny (u).

Verdict If the judge is dissatisfied with the verdict he may objected to by the judge. direct the jury to reconsider it, and their subsequent verdict will stand as the true one. If, however, the jury insist upon having the first recorded, it must be recorded; but if it be a verdict of guilty, and contrary to the evidence, it will be set aside and a new trial granted by the Queen's Bench Division (v).

Acquittal, consequences of.

If a verdict of acquittal is returned, the prisoner is for ever free from the present accusation; and he is discharged in due course, unless there is some other charge against him. If he is acquitted on account of some defect in the proceedings, or not, as above, on the merits of the case, he may be detained and indicted afresh. If he is acquitted on the ground of insanity at the time of the commission of the offence, whether such offence was a felony (x) or misdemeanor (y), he must be kept in custody until the Queen's pleasure be known; and the Queen may order his confinement during her pleasure (2).

(x) 39 & 40 Geo. 3, c. 94, s. I.

(y) 3 & 4 Vict. c. 54, s. 3.

(z) v. p. 372 as to insanity at time of trial and not of commission of

offence.

If a verdict of guilty is brought in, the accused is Conviction. said to be convicted. The jury may annex to such verdict a recommendation to mercy on any grounds they think proper-which recommendation will usually be taken into consideration by the judge (a). If there are several counts in the indictment the verdict specifies on which count the prisoner is convicted.

dictment.

If there is a second indictment against a prisoner Second inwho has been found guilty, frequently it is not proceeded with if the charge is similar to that on which he has just been convicted. The counsel for the prosecution often merely gives the court an outline of the If he is acquitted, the second indictment is then proceeded with, unless it is obvious that there is no more evidence than in the first case.

case.

after previous

If a prisoner indicted for any felony or the offence Conviction of uttering false or counterfeit coin, or of possessing conviction. counterfeit gold or silver coin, or of obtaining goods or money by false pretences, or of conspiracy to defraud, or of any misdemeanor under 24 & 25 Vict. c. 96, s. 58 (b), has been found guilty, then, if he has been previously convicted of any of the above crimes, he is asked whether he has been so previously convicted, the previous conviction being also alleged in the indictment. If he admits it, the court proceeds to sentence him. But if he denies it, or will not answer, the jury are then, without being again sworn, charged to inquire concerning such previous conviction; the point to be established being the identification of the accused with the person so convicted (c). The only case in which

(a) Unless, indeed, as is not unfrequently the case, it appears that the recommendation is founded on some lingering doubt as to the sufficiency of the evidence.

(b) v. p. 255.

(c) 34 & 35 Vict. c. 112, ss. 18, 20; see also 24 & 25 Vict. c. 96, s. 116; c. 97, s. 37.

evidence of a previous conviction may be given before the subsequent conviction is found is when the prisoner gives evidence of character. In this case the jury are to inquire of the previous conviction and the subsequent offence at the same time (d).

(d) Though the previous conviction does not fall within the scope of the above provision, the judge has before him a record of it and all other occasions on which the accused has been before a criminal court. See p. 229, as to evidence of certain previous convictions on an indictment for receiving.

CHAPTER XIX.

JUDGMENT.

BEFORE judgment in cases of treason and felony, the Judgment. prisoner is supposed to be asked whether he has any

thing to say why the court should not proceed to pass

sentence upon him. always done.

But in actual practice this is not

judgment.

The interval between conviction and judgment is the Arrest of time for the defendant to move the court in arrest of judgment. This motion must be grounded on some defect apparent on the face of the record, and not on some irregularity in the proceedings. The objection must be a substantial one, such as want of sufficient certainty in the indictment as to the statement of facts, &c. But judgment will not be arrested if the defect has been amended during the trial, or is such an one as is aided by verdict. The court itself will arrest judgment if it is satisfied that the defendant has not been found guilty of an offence in law. If judgment is arrested, the proceedings are set aside, no judgment is given, and the prisoner is discharged. But, unlike an ordinary acquittal, the defendant may be indicted again on the same facts.

Judgment may be postponed if the court wishes to Judgment reserve any point of law for the consideration of the postponed. Court for Crown Cases Reserved (e).

If the defendant has been found guilty of a mis- Verdict in

(e) v. p. 471.

absence of prisoner.

Giving judgment.

demeanor in his absence (in felonies he must be present), process issues to bring him to receive judgment; and on non-appearance he may be prosecuted to outlawry (f). If he has been allowed to leave the court on entering into recognizances to come up for judgment when called upon, and he fails to come up, his recognizances will be forfeited and a warrant issued for his apprehension.

Judgment or sentence is given by the court, the judge adding such remarks as he thinks proper. Formerly, in all capital felonies, when the court thought that the person convicted was a fit subject for royal mercy, it was lawful, instead of publicly giving sentence of death, to enter it on the record, the effect being the same (g). But it seems that now, by virtue of 24 & 25 Vict. c. 100, s. 2, sentence of death must be pronounced on conviction for murder.

(f) v. p. 361.

(g) v. 4 Geo. 4, c. 48, s. 1; 6 & 7 Wm. 4, c. 30, s. 2; 24 & 25 Vict. c. 95.