Upon the trial being called on, the jurors are to be sworn as they appear, to the number of twelve, unless they be challenged. As to challenges, whether on the part of the crown or the prisoner, and as to petit juries generally, see J env. It may here be observed, however, that the right of peremptory challenge, that is, of challenging at mere pleasure, without showing any cause, which exists in cases of treason and felony, is one of the peculiarities before alluded to, which dis tinguish those classes of crime from misdemeanors; and that the power to challenge peremptorily to the number of thirty-five jurors in cases of treason, and to the number of twenty only in cases of felony, is a distinguishing feature between treasons and felonies. When twelve jurors are procured free from exception, and have been sworn, or, if Quakers, Moravians, or Separatists, or persons who have been Quakers or Moravians, have made their solemn affirmation, in case of treason or felony, well and truly to try and true deliverance make between the queen and the prisoner whom they have in charge, and, in cases of misdemeanor, well and truly to try the issues joined between the queen and the defendant, the case, where counsel is retained for the prosecution, is to be opened by him, or, if two or more counsel are retained, by the herding one, according to his instructions, unless the case is so plain as not to require any statement. The counsel for the prosecution ought, however, to confine himself, so far as possible, to a simple statement of the facts which he expects to prove, and to abstain from any appeal to the passions of-the jury, more particularly in cases where the prisoner has no counsel. After the opening, or, where no counsel is engaged for the prosecution, immediately after the swearing of the jury, the examination of the witnesses on behalf of the Crown commences. Before being examined an oath or affirmation is administered to each witness " that he will true answer make to such questions as tho court shall demand of him, and will tell the truth, the whole truth, and nothing but the truth." Where there is counsel, he examines the witnesses; where there is none, that duty devolves on the court. In criminal cases a single witness, swearing to the actual offeuce, or to such facts as necessarily lead to the inference that it has been com mitted, if believed by the jury, is generally sufficient to substantiato the charge. In treason, perjury, and the offences of tumultuously petitioning, affirming that parliament has a legislative authority without the crown, or that any person is entitled to the crown contrary to the Act of Settlement, and blasphemy under the provisions of 9 & 10 Win. III. c. 32, however, there must be two witnesses. In all cases, also, the prisoner's confession, if made in consequence of a charge against him, and in a direct and positive manner, voluntarily and without promise or threat operating on his mind at the time of making it, is sufficient, even if them be no other proof that the crime with which he is charged has been committed, for the jury to convict upon, if they believe it to be true. And the single unsupported testi mony of an accomplice is sufficient (except where two witnesses are required), if the jury believe his story; but it is usual in such eases for the court to direct the acquittal of the prisoner. If, however, the accomplice be corroborated by unsuspicious evidence as to such parts of his testimony as show that his story has not been fabricated, the court will not interfere.
There are four kinds of proof by which criminal charges may be sustained : 1, positive, as by the direct testimony of a witness who saw the fact ; '2, circumstantial, when a number of facts are presented which are inconsistent with any other hypothesis than that of the prisoner's guilt ; 3, prommntire, as when the possession of a stolen article casts on the prisoner the burden of showing how he obtained it; 4, mnfessional, where the prisoner makes a voluntary admission of his guilt, as already mentioned. The general rules of evidence in criminal proceedings are the same as those which are applicable in civil cases. [Evieesice.] A husband or wife of an accused person, however, can not be a witness for or against each other (unless upon a charge of criminal violence done by either to the person of the other) contrary to the rule in civil cases, which now admits the testimony of husband and wife for or against each other. Tho prosecutor, also, notwithstand ing his connection with the proceedings against the prisoner, is a com petent witness in support of the charge ; for such proceedings are carried on in the name of the crown, and the prosecutor has, according to legal construction, no direct interest in the result. His wife, there
fore, may be a witness either for the prosecution or for the prisoner.
In the event of the death or illness of a witness, his deposition may be road. In criminal cartes, too, instruments aro admitted in evidence, although not duly stamped. (17 & IS Viet. c. 83, a. 27.) After the examination of each witness, he may, be cross-examined on behalf of the prisoner. When the cross-examination is finished, the counsel by whom the witness was called is entitled to re-examine him for the purpose of explaining any matters touched upon or referred to in the cross-examinatien, into which confusion may have been intro duced by the questions on the prisoner's behalf. The court may also put any question it thinks proper to the witnesses, and for this purpose may recall a witness at any stage of the inquiry.
When the case for the prosecution is closed, the prisoner or his counsel (who has, since the passing of the 6 and 7 Wm. IV. c. 114, the same right to address the jury on the merits of the case in felony as he previously had in treason and misdemeanor) is entitled to address the jury, and in so doing to comment on the entire case for the prose cution ; and if he intends to adduce evidence, may open that evidence with any particulars he may think proper. After the prisoner or his counsel has finished his address, the witnesses for the defence are to be sworn, and their evidence gone into. The accused is always allowed to call witnesses to speak to his general character, as being inconsistent with the imputed offence, and it is for the jury to estimate the value of such evidence.
When the prisoner's evidence is closed, witnesses may be called on behalf of the prosecution to give specific contradictions to the denials by the prisoner's witnesses on cross-examination, and generally to give any evidence in reply which is strictly applicable to the defence and which could form no part of the original case. Where such evi dence is given, the prisoner or his counsel has a right to address the jury on it before the general reply for the prosecution.
When the defence is ended, the counsel for the prosecution, in all cases where witnesses have been called on behalf of the accused, is entitled to reply on the eutire case and on all the observations made by the other side during its progress ; but in practice, where the evidence given on behalf of the accused is confined to character, it is not usual to reply. After the case on both sides is closed, the court sums up the evidence, and in so doing directs the attention of the jury to the precise issue they have to try, and applies the evidence to that issue. Upon the trial of a person for a non-capital felony committed after a previous conviction for felony, the jury is not to be charged to inquire concerning such previous conviction, until they have inquired concerning such subsequent felony and have found such person guilty of the same ; and where such previous conviction is stated in the indictment, the reading of such conviction to the jury is to be deferred until after such finding. Where, however, such person gives evidence of good character, the prosecutor may in answer thereto give evidence of such previous conviction, before such finding, and the jury may inquire concerning such previous conviction at the same time that they inquire concerning the subsequent felony. (6 & 7 Wm. IV. c. 111; 14 & 15 Viet. c. 19.) The summing up being concluded, the jury proceed to consider their verdict. If, on consultation in the jury box, they are not able to agree within a convenient time, they retire, and a bailiff is sworn to keep them together without meat, drink, fire, or candle till they are agreed. This rule, however, has been relaxed in modern times. In cases of misdemeanor, where the trial lasts more than one day, the court will generally allow the jurors to return to their homes, the jury engaging to allow no one to speak to them on the subject of the trial. But in cases of treason or felony, the course has been to permit them to retire in a body to some tavern, where accommodation is provided for them by the sheriff and his officers, who are sworn to keep them together, and neither to speak to them themselves nor to suffer any other person to speak to them touching any matter relating to the trial.