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the trial has to be considered by the full Court. Thus, if the Court see there have been a miscarriage, and that the finding was not legal, it does not pronounce sentence, whereas in a Superior Court, if the proceedings originate there, judgment must be there given. In R. v. Scaife the objection made was as to the reception of illegal evidence, and the prisoner was found guilty ; but the Court of Queen's Bench, on review, thought the objection to the evidence well founded, and the verdict was set aside. In that case the Judge intimated to the prisoner's Counsel that as the record came from the Queen's Bench, that was the tribunal for appeal if his decision were erroneous, and thus it is seen that in a case of this kind that Court, supervising its own records, a mis-trial cannot be dealt with by the Court of Criminal Appeal, because that Court does not deal with trials or records of the Queen's Bench. In cases before the ordinary Courts of Oyer and Terminer, Gaol Delivery or Quarter Sessions, if there be a verdict of guilty, sentence is at once pronounced, though execution may not immediately issue, to afford the prisoner opportunity of appealing to the mercy of the Crown, and to these cases the Criminal Appeal Act is applicable, but the supervising power of the Qeeen's Bench over its own records does away with the jurisdiction, and the removal by certiorari of the indictment into that Court enables it to deal with the entire facts of the trial, not according to the discretion of the Court, but according to law, which power of review does not belong to an ordinary Court of Oyer and Terminer. The origin indeed of issuing a writ of certiorari is the power inherent in the Queen's Bench of controlling its own records.
The course of trials on Queen's Bench records is stated in The King v. Holt, 5 T.R. 445, where Buller, J., lays it down, that on reading the report of the trial, the Court may, if it incidentally appear that justice has not been done, stay the judgment. This does not result in the
exercise of a discretion but in obedience to legal rules. in R. v. Ellis, 9 Dowl. and Ryl. 176, S.C. 6, B. and C. 145, the Court do not say that they had not power to grant a new trial in felony, but their decision is rested on the insufficiency of the objections relied on.
Now this power of review does not belong to an ordinary Court of Oyer and Terminer, and the rule as to not putting a person twice in peril on the same charge cannot apply to a case in which the first trial has been legally abortive. No doubt, if there have been a lawful verdict founded on a valid indictment, there cannot be a second trial on the same charge. This legal principle has been established by various authorities, and it is only necessary to refer to Thomson v. The Queen in 6 B and S. 186, for its enunciation. “ It was urged (says the Chief Justice) that according to the law of England no man can be put on his trial twice. That maxim means that a man is not to be put in peril a second time after a verdict pronounced on a good indictment. It does not follow that if the first trial has proved abortive, the questions involved in the indictment shall not be submitted to a second jury.” But so long as the verdict remains without a judgment the accused is liable to another indictment, because he has no defence founded on the former proceedings. An abortive trial, or a mis-trial, does not preclude another trial. (R. v. Fowler, 4 B. and Ald., 276.) There are, of course, difficulties suggestible for new trials in criminal cases; the evidence to establish guilt is necessarily of a higher and more exact kind than what ordinarily might induce a verdict in a civil case, but, on a new trial motion for a prisoner, how could the reviewing tribunal deal with the weight of evidence, or with the doubts which a Jury might have entertained or should not have overlooked? And so in deciding on those points they would be assuming the province of the Jury, and if the new trial were granted, it would be but prejudicing the second
trial. But observations of this kind only lead to an inference that evils might happen, and do not establish that they are inevitable. The deduction from settled cases is in prosecutions in the Queen's Bench for misdemeanours, if a verdict of guilty has been given contrary to the evidence, and not to the satisfaction of the Judge who tried the case, the Court will, on the motion of the defendant, grant a new trial, but it will not be granted at the instance of the prosecutor, unless the verdict has been obtained by some fraudulent or irregular proceeding on the part of the defendants. Now let us see if the Criminal Appeal Act changes matters. That Act is confined to cases before the Courts of Oyer and Terminer, Gaol Delivery, and Quarter Sessions where there has been a conviction.
a conviction. Why? Because an acquittal in a criminal case is in its nature final, according to all constitutional law, on the ground of its being in favorem vitae et libertatis, and hence it may be argued the necessity arises of the Court taking care that no one be convicted except in accordance with settled law. By the gth section of 11 Geo. IV., & I. Will. IV., c. 70, it is enacted that upon all trials for felonies or misdemeanours, upon any record of the Queen's Bench, judgment may be pronounced during the sittings or at the Assizes by the Judge before whom the verdict shall be taken, &c., but it is added that within the first six days of the ensuing term a rule may be granted to show cause why a new trial should not be had or the judgment amended, thus expressly recognising the inherent supervising power of the Queen's Bench in cases of felony tried on its own records, and proving that a new trial may be granted. In the Queen v. Chorley, 12 Q.B. 515, which was an indictment for obstructing a public footway, and where the defendant had a verdict, the Court granted a new trial, though Lord Denman said the proper course was to stay the judgment; but there was no discussion as to whether, after verdict for the defendant on an indict
ment, the Court would grant a new trial. If the Court have power to suspend a judgment in case of felony, is it not inferential that there should be an order made for a further trial, for otherwise an accused party would have no protection against a new indictment ? Unless a mis-trial in a case of felony is equivalent to acquittal, why cannot the Court set aside a verdict if it can stay a judgment for matter appearing on the Judge's report; and if it find that evidence was received which ought to have been rejected, and that, therefore, the verdict of guilty in such case could not be the legal foundation of a legal sentence, then the course taken in R. v. Scaife seems justifiable. But the ground for granting a venire de novo in criminal cases is, that there has been an abortive trial, and this necessitates a second trial to satisfy the requirements of justice; and further, that it rests upon some irregularity or miscarriage apparent on the face of the record, where the rule for a new trial is an interference by the Court in the discretionary exercise of a species of equitable jurisdiction for the purpose of relieving a party against a latent grievance. After the rule for a new trial is granted and the trial had thereon, the record is as if no trial but the one had taken place, whereas, on the award of the venire de novo, the first trial and the circumstances which rendered that trial nugatory necessarily appear on the record. It would seem that in R. v. Bernard the distinction between the tribunal and procedure was not sufficiently considered, and in R. Murphy the distinction between an award of venire de novo, which is granted on what appears on the record, and the discretionary order for a new trial was overlooked. The rule as to not putting a person twice on trial on the same charge does not apply where the first trial has been legally abortive, though where there has been a lawful verdict found on a valid indictment no second trial is allowed on the same charge for the same offence.
This question of new trials in cases of felony after conviction, was part and parcel of a course of lectures on Criminal Law delivered at the King's Inns, Dublin, where I had the privilege of addressing Law students, and during my period of office, Sir Joseph Napier, Ex-Lord Chancellor of Ireland, who, perhaps as much as any living jurist has devoted time and talent to the elucidation of the Science of Law, obligingly furnished me with some notes on the subject, authorising me to avail myself of them as I might think advisable and from these I have in the preceding pages largely drawn, but Sir Joseph Napier's remarks on the procedure, which I subjoin, seem to me very valuable.
“ The Criminal Appeal Act is confined to cases before Courts of Oyer and Terminer, &c., in which there has been a conviction. This is founded on the principle of our Constitution, by which an acquittal in criminal cases is in its nature final. (21 Vin., Ab. 478, Pl. 2.) The reason of this exception in favorem vitæ et libertatis makes it the more incumbent on the Supervising Court to exercise its control so that no man shall be convicted except in strict accordance with the law of the land. R. v. Burridge, 1 P. Wm. 227; R. v. Poole 1 Hardw. 26. The Act of 11. Geo. IV. and 1 W. IV., C. 70, was prepared by Lord Tenterden after the case of R. v. Ellis had been before him in the Queen's Bench; it expressly recognised the inherent supervising power of the Court in cases of felony tried upon its own records, and that a new trial may be granted in a proper case. But in a case where the Court is bound to stay the judgment, is it to stop there? The party has pleaded not guilty, and he cannot be discharged by the Court from the pending indictment. This difficulty seems to have been first specially noticed in the time of Lord Ellenborough, in a special class of cases, arising on indictments for misdemeanours, in which the Court at first hesitated about suspending judgment on verdicts of