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this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore in his dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though what are so requisite, must too often be left to the discretion of the gaolers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner, unless where he was unruly, or had attempted to escape (r); this being the humane language of our ancient lawgivers (s), "custodes poenam sibi commissorum non augeant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, judicia debite exequantur."
OF THE SEVERAL MODES OF PROSECUTION.
THE next step towards the punishment of offenders is their prosecution or the manner of their formal accusation (1). And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment. I. A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation (a), without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment (b), before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are
(r) 2 Inst. 381. 3 Inst. 34. (s) Flet. l. 1, c. 26.
(1) It may here be useful briefly to consider the time when the prosecution should be commenced. The habeas corpus act provides, that a person committed for treason or felony must be indicted in the ensuing term or sessions, or the party must be bailed, unless it be shewn upon oath, that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II. c. 2. s. 7. (See accordingly, 2 R. S. 737, § 28, &c.) This regulation applies, however, only to persons actually confined upon suspicion, and is solely intended to prevent the protracting of arbitrary imprisonment; so that it does not preclude the crown from preferring an indict ment at any distance of time from the actual perpetration of the offence, unless some particular statute limits the time of prosecuting.
(a) Lamb. Eirenarch. l. 4, c. 5.
There is no general statute of limitations applicable to criminal proceedings. 2 Hale, 158. Lieutenant-colonel Wall was tried and executed, for a murder committed twenty years before. And it has been repeatedly held, that no length of time can legalize a public nuisance, although it may afford an answer to an action of a private individual, 7 East, 199, ante, 167. note (12).
In New-York, indictments for murder may be found at any time; in all other cases, indictments must be found and filed in the proper office, within three years after the commission of the offence: but the time during which the defendant has not been an inhabitant of the state, or usually resident in it, is not to be computed part of the time. 2 R. S. 726, § 37.)
in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se (2); of flight in persons accused of felony (2); of deodands, and the like (2); and presentments of petty offences in the sheriff's tourn or court-leet, whereupon
the presiding officer may set a fine. Other inquisitions may be af[*302] terwards traversed and examined; as particularly the coroner's "inquisition of the death of a man, when it finds any one guilty of homicide (3); for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.
II. An indictment (c) is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be commanded them (d) (4). They ought to be freeholders, but to what amount is uncertain (e): which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the bes figure in the county (5). As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred (f). "Exeant seniores duodecim thani, et praefectis cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare." In the time of king Richard
(c) See Appendix, §, 1.
(d) 2 Hal. P. C. 154.
(2) But such an inquisition is now consider ed traversable. 1 Saund, 363. note 1. Impey's Off. Cor. 437.
(3) Upon this inquisition the party accused may be tried without the intervention of the grand jury, 2 Hale, 61. 3 Camp. 371. 2 Leach, 1095. Russ. & R. C. C. 240. S. C.; and if an indictment be found for the same of fence, and the defendant be acquitted on the
,he must be arraigned on the other, to which he may, however, effectually plead his former acquittal. 2 Hale, 61.
Verdict in an Action.-There is also a mode in which a party may be put on his trial without any written accusation, viz. the verdict of a jury in a civil cause. 2 Hale, 150. 4 T. R. 293. 3 Esp. 134. Thus in an action for taking away goods, if the jury found that they were taken feloniously, the verdict served also as an indictment. 2 Hale, 151. Hawk. b. 2. c. 15. s. 6. Com. Dig. Indictment, C. Bac. Ab. Indictment, B. 5. And, at the present day, in an action for slander, in which the plaintiff is charged with a criminal offence, and the defendant justifies; if the jury find
(e) Ibid. 155.
(f) Wilk. LL. Angl. Sax. 117.
that the justification is true, the plaintiff may be immediately put upon his trial for the crime alleged against him, without the intervention of a grand jury. 5 T. R. 293. But the verdict must be found in some court, which has competent jurisdiction over criminal matters, or otherwise it seems to have but little force. 2 Hale, 151. Hawk. b. 2. c. 25. s. 6. An affidavit taken at nisi prius on a trial may also he received by the court of king's bench, as the foundation of a criminal information against another. T. R. 285.
(4) As to the mode of summoning and prov ing the attendance of the grand jury, see 1 Chit. C. L. 310, 1: and as to the time of summoning, id. 311. 6 Geo. IV. c. 50. s. 25.
As to the law of New-York, see 2 R. S. 720, &c.; and id. 411.
(5) The qualifications and exemptions of grand jurors are now pointed out by the 6 Geo. IV. c. 50. s. 1, 2. As to how many times they may be called on to serve, see 1 Chit. C. L. 308. b. c. 2 ed. 6 Geo. IV. c. 50. s. 62.
the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred ; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and  inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and recieve indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes (g).
The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter anciently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in either, because no complete act of felony was done in any one of them; but by statute 2 & 3 Edw. VI. c. 24. he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea, or out of England: or, vice versa ; the offenders and their accessaries may be indicted in the county where either the death, poisoning, or stroke shall happen (6). And so in some other cases; as particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35 Hen. VIII. c. 2, and 5 & 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers of the current coin, together with all man-  ner of felons and their accessaries, may by statute 26 Hen. VIII. c. 6, (confirmed and explained by 34 & 35 Hen. VIII. c. 26. § 75 76.) be indicted and tried for those offences, if committed in any part (h) of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the county of Hertford or Salop; and not, as it should seem in the county of Chester or Monmouth: the one being a county-palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII (i). Murders also, whether committed in England or in foreign parts (k), may by virtue of the statute 33 Hen. VIII. c. 23. be inquired of and tried by the king's special commission in any shire or place in the kingdom. By sta(g) State Trials, IV. 183.
(h) Stra. 533. 3 Mod. 134. (i) See Hardr. 66.
(k) Ely's case, at the Old Bailey, Dec. 1720. Roache's case, Dec. 1775.
(6) See accordingly, 2 R. S. 727, § 47, 48.
tute 10 & 11 W. III. c. 25. all robberies and other capital crimes, com. mitted in Newfoundland, may be inquired of and tried in any county in England. Offences against the black-act, 9 Geo. I. c. 22, may be inquired of and tried in any county of England, at the option of the prosecutor (1). So felonies in destroying turnpikes, or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II. c. 20. and 13 Geo. III. c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II. c. 19. plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Ann. st. 2. c. 18 (m), may be prosecuted either in the county where the fact is committed, or in any county next adjoining; and, if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in
Wales (n). Felonies committed out of the realm, in burning or [*305] destroying the king's ships, magazines, or stores, may by statute 12 Geo. III. c. 24. be inquired of and tried in any county of England, or in the place where the offence is committed. By statute 13 Geo. III. c. 63. misdemeanors committed in India may be tried upon informations or indictments in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet if larceny be committed in one county, and the goods carried into another, the offender may be indicted in either; for the offence is complete in both (o) (7). Or he may be indicted in England, for larceny in Scotland, and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another (p). But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction (8). And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted or stands mute, he shall not be admitted to his clergy; provided the original taking be attended with such circumstances, as would have ousted him of his clergy by virtue of any statute made previous to the year 1691 (q) (9).
When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill, “ignoramus;" or, we know nothing of it: intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English more absolutely, "not a true bill;" or, (which is the better way) "not found;" and then the party is discharged without further
such offender; and such persons shall have power to hear and determine all such offences, within the county or place limited in their commission by a jury of such county or place, in the same manner as if the offences had been actually committed in such county or place and by 8, where any person being feloniously struck, poisoned, or hurt, upon the sea, or at any place out of England, shall die of such stroke, &c. in England, or vice versa, every offence committed in respect of any such case, whether the same shall amount to the offence of murder, or manslaughter, or being accessary before the fact to murder, or after the fact to murder or manslaughter, may be tried and punished in the county or place in England in which such death, stoke, &c. shall happen, in the same manner, in all respects, as if such offence had been wholly committed in that county or place.
As to offences committed on the borders of counties. By 7 Geo. IV. c. 64. § 12, where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within 500 yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanor may be tried and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein.t
As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, 13, where any felony or misdemeanor shall be committed on any person, or on or in respect of any property in or upon any coach, waggon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any voyage upon any inland navigation, such felony or misdemeanor may be tried and punished in any county through any part whereof such coach, &c., or vessel, shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county; and where any part of any highway or navigation shall constitute the boundary of any two counties, such felony or misdemeanor may be tried and punished in either of the said counties through, or adjoining to, or by the boundary of any part whereof such coach, &c., or vessel, shall have passed, in the course of the journey or voyoge during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.
As to larceny generally. By the Larceny Act, 7 and 8 Geo. IV. c. 29, ◊ 76, if any person having feloniously taken any property in any one part of the united kingdom, shall af
terwards have it in his possession in any other part, he may be indicted for larceny in that part where he shall so have such property in his possession, as if he had actually stolen it there; and if any person having knowingly received, in any one part of the united kingdom, any stolen property, which shall have been stolen in any other part, he may be indicted for such offence in that part where he shall so receive such property, as if it had been originally stolen in that part.
As to accessaries. By 7 Geo. IV. c. 64, § 9, accessaries before the fact any felony, may be tried in any court that has jurisdiction to try the principal offender, although the of fence of such accessaries may be committed on the high seas, or on land, within or without the king's dominions; and if the principal's offence is committed in one county, and the other offence in another, such accessaries may be tried in either; and by § 10, a similar provision is made with respect to accessaries after the fact to felony.
As to treasons. By 35 H. VIII. c. 2. (which is not repealed by 1 and 2 P. and M. c. 10, see 1 East, P. C. 103,) all treasons or misprisions of treason committed out of the realm, may be tried in the court of King's Bench, by a jury of the county in which the court sits, or by a special commission in any county in England. See Chit. Cr. L. 188.
An indictment for bigamy may, by 9 Geo. IV. c. 31, 22, be tried in the county where the offender is apprehended, or is in custody, the same as if the offence had been actually committed there.
In an indictment for a libel the venue must be laid in the county where the publication took place.
Indictments for offences against the customs and excise may be tried in any county of England. See 6 Geo. IV. c. 108 ss. 74 and 78; and 7 and 8 Geo. IV. c. 53, § 43.
Offences committed in a county of a city on town, may be tried in the county at large.. See 38 Geo. III. c. 52; 51 Geo. III. c. 100; 60 Geo. III. c. 4; 1 Geo. IV. c. 4. If the in dictment states the felony to have been com.. mitted in the county at large, and it was com mitted in the county of a city or town, this is bad. Rex v. Mellor, R. and R. C. 144. if the offence be properly laid in the county of a town, and the indictment is preferred in the county at large, it need not be averred that that is the next adjoining county to the county of the town. Rex v. Goff, id. 179. The 26 H. VIII. c. 6, § 6, which makes felonies in Wales triable in the next English county, extends to felonies created since that. statute. Rex v. Wyndham, id. 197. travelling by water. § 2 R. S. 727, § 43, 50.