A Practical Treatise on the Criminal Law; Comprising the Practice, Pleadings, and Evidence, Which Occur in the Course of Criminal Prosecutions, Whet

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1819 edition. Excerpt: ...oyer and terminer, it should seem that a fresh panel should also be chosen. (z) But it is said that where the trial is under a particular writ of venire facias, in order to procure a jury, if some of those impanelled appear, but not a sufficient number, a 518 distringas juratores issues accompanied by a writ of tales, but if all of them make default, the former alone is awarded without the latter, (a) The tales is the mode by which, under several statutes, if a full jury do not appear, or be reduced below the number by challenge, death, orotherwise, the judges may, on the application of either party, command the sheriff to appoint so many sufficient persons present as will complete the number, and whose names are to be annexed to the panel. (6) A tales alone cannot, under these statutes, be granted on the return of the venire, but only after a habeas corpora or distringas, (c) This writ, by its very name, signifies a returning so many as will make up the full complement; and, therefore, it is not granted where there is a total default, but only where the number is deficient, (rf) And if the juror was not present when his name was called, but appear before his default is recorded, and a tales sworn, he will be sworn, (e) But if one juror only appear, and he be challenged, a tales may yet be granted, and twelve new jurors may thus ultimately be returned to try the defendant. (/) This mode of filling up the jury may be resorted to either by the prosecutor, or the party indicted; (g) but it seems that the latter cannot pray it until after the default of the former; (h) and neither party can demand it without the consent of the attorney general, though it is otherwise in actions upon penal statutes, because of the individual interest that the...