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70
barely time to hear his statement and inform Mr. Jenkin
of the purport of it by telephone before the sitting of
the court at 10 30 a.m. I told him that I thought it
my duty to tenter it.
I proposed to call the evidence. In tendering the evi- dence I admitted that I knew of no precedent. I said
that I did not know of any case which would make it obli-
gatory on the court to refuse the evidence, but I cited
666, because it might be
Mr. Jenkin merely asked me when
R. v. Haynes (1859) 1 F. & F.
thought to be against me. My position was that the
admission of the evidence was a matter of discretion, and
that the prisoner would not be prejudiced as the evidence
would contain nothing new. I distinguished R. v. Haynes where both cases had been closed and both speeches had been
made. I distinctly said that I did not ask to call the evidence by way of rebuttal, as I did not think that I
fairly could. "ith respect, the judge's note is incor-
rect on this point. The Chief Justice seemed to be in-
disposed to admit the evidence, and he would possibly have rejected it if asked for a decision, but Kr. Jenkin with-
drew his objection and practically asked for the evidence
to be admitted. The nature of the evidence was not dis-
closed during the argument, but it is a matter for regret
that the jury were not asked to retire.
13.
The Alleged Fisdirection.
It is perhaps to be regretted that the Chief Justice
did not definitely tell the jury, when they returned for
further directions, that though a verdict of guilty would not involve a finding that Captain Morgan saw the prisoner fire the shot, which was never alleged, yet, before they could find the prisoner guilty, they must be prepared to
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