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Outlawry.

ant. But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary. For, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry, that is, he shall be exacted, proclaimed, or required to surrender at five county courts; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law, so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise."

Punishment for outlawry.

The punishment for outlawries upon indictment for misdemeanors is the same as for outlawries upon civil actions (of which, and the previous process by writs of capias, exigi facias, and proclamation, we spoke in the preceding booke), viz., forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offense charged in the indictment, as much as if the offender had been found guilty by his country.df His life is, however, still under [320] the protection of the law, as hath formerly been observed ;e so that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him,f because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him; yet now, to avoid such inhumanity, it is holden that no man is entitled to kill him wantonly or willfully, but in so doing is guilty of murder, unless it happens in the endeavor to apprehend him. For any person may arrest an outlaw on a criminal prosecution, either of

See vol. iii., page 283, 284. d 2 Hal., P. C., 205.

• See page 178.

f Mirr., c. 4, § 4; Co. Litt., 128.

1 Hal., P. C., 497.

h Bracton, fol. 125.

(2) And now, by the stat. 48 Geo. III., c. 58, when any person is charged with an offense below the degree of felony, one of the judges may, on an affidavit thereof, or on the production of (3) See further, as to outlawry, 1 Chit., an indictment, or an information filed, Crim. L., 347 to 370; Bac. Abr., Outissue his warrant for apprehending and lawry.-[CHITTY.] holding him to bail; and if he neglects

or refuses to become so bound, he may be committed to jail until he conforms, or is discharged.-[CHITTY.]

* In New York, the process used for the arrest of a defendant indicted is a warrant, which may be issued by the court to which the indictment is presented, or by a justice of the Supreme Court, a circuit judge, or a judge of the county courts of the county in which the indictment is found, either in vacation or during the sitting of such court, and can not be issued by any other officer.-(2 R. S., 728, $55.)

The common-law proceedings for the outlawry of a defendant in criminal cases are abolished in New York, and a new course of proceeding is prescribed, which, however, is confined to the single case of a defendant convicted of treason who absconds or conceals himself, so that he can not be apprehended. In every other criminal case outlawry is abolished.-(2 R. S., 745, § 10 to 20. See post, p. 389, n. *.)

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CHAP. XXIV.]

his own head, or by writ or warrant of capias utlagatum, in
order to bring him to execution. But such outlawry may be
frequently reversed by writ of error, the proceedings therein
being (as it is fit they should be) exceedingly nice and circum-
stantial; and, if any single minute point be omitted or miscon-
ducted, the whole outlawry is illegal, and may be reversed ;
upon which reversal the party accused is admitted to plead to,
and defend himself against, the indictment.

Thus much for process to bring in the offender after indict- Certioran
ment found, during which stage of the prosecution it is that
writs of certiorari facias' are usually had, though they may be
had at any time before the trial, to certify and remove the in-
dictment, with all the proceedings thereon, from any inferior
court of criminal jurisdiction into the Court of King's Bench,
which is the sovereign ordinary court of justice in causes crim-
inal. And this is frequently done for one of these four purposes:
either, 1. To consider and determine the validity of appeals or in-
dictments and the proceedings thereon, and to quash or confirm
them as there is cause; or, 2. Where it is surmised that a partial
or insufficient trial will probably be had in the court below, the
indictment is removed, in order to have the prisoner or defend-
ant tried at the bar of the Court of King's Bench, or befire the
justices of nisi prius; or, 3. It is so removed in order to plead
the king's pardon there; or, 4. To issue process of outlawry [321]
against the offender in those counties or places where the pro-
cess of the inferior judges will not reach him. Such writ of
certiorari, when issued and delivered to the inferior court for
removing any record or other proceeding, as well upon indict-
ment as otherwise, supersedes the jurisdiction of such inferior
court, and makes all subsequent proceedings therein entirely er-
roneous and illegal, unless the Court of King's Bench remands
the record to the court below, to be there tried and determined.
A certiorari may be granted at the instance of either the pros-
ecutor or the defendant; the former as a matter of right, the

CERTIORARI.

i 2 Hal., P. C., 210.

tion first made in the court or before
some judge thereof, and leave obtained
in the same manner as where the appli-
cation is made on the part of a defend-
ant. It is now, therefore, in the discre-
tion of the court to grant or refuse the
writ at the prayer of either party.

Where the defendant removes an in-
dictment by certiorari, he must, before
the allowance of the writ, enter into a
(5) But now, by stat. 5 & 6 Will. IV., recognizance before a justice, condition-
c. 33, s. 1, no writ of certiorari can issue ed as required by the stats. 5 & 6 W. &
from the Court of King's Bench to re- M., c. 11, and 8 & 9 Will. III., c. 33;
move any indictment or presentment and, therefore, he will, if convicted, be
from an inferior court, at the instance of liable to costs to the prosecutor or party
the prosecutor or any other person (ex- grieved. 5 & 6 Will. IV., c. 33, s. 2.
cept the attorney-general), without mo-

(4) As to this writ in general, see Fitz., N. B., 245, a.; Bac. Abr., Certiorari, (A.); Com. Dig., Certiorari, (A.), 1; Burn, J., Certiorari; 1 Chit., Crim. L., 2d ed., 371 to 402.

By stat. 60 Geo. III. & 1 Will. IV., c. 4, s. 4, the certiorari may be applied for before indictment found for a misdemeanor. [CHITTY.]

320

latter as a matter of discretion; and, therefore, it is seldom granted to remove indictments from the justices of jail delivery, or after issue joined, or confession of the fact in any of the courts below.k*

At this stage of prosecution, also, it is that indictments found by the grand jury against a peer must, in consequence of a writ of certiorari, be certified and transmitted into the court of Parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two Universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter, and confirmed by act of Parliament, to be there respectively tried and determined.

k 2 Hawk., P. C., 287; 4 Burr., 749.

* The certiorari to remove an indictment before trial from the Sessions into the Oyer and Terminer, or into the Supreme Court, is abolished, and the removal is now effected by an order of a judge. So a certiorari to remove an indictment before trial from the Oyer and Terminer into the Supreme Court is ineffectual, unless allowed by a judge of the Supreme Court or a circuit judge.-(2 R. S., 731, § 76, et seq.)

372

322

CHAPTER XXV.

OF ARRAIGNMENT, AND ITS INCIDENTS.

RAIGNMENT,
AND ITS IN-

WHEN the offender either appears voluntarily to an indict- FIFTH. ARment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to CIDENTS. be arraigned thereon, which is the fifth stage of criminal prosecution.

To arraign' is nothing else but to call the prisoner to the bar of the court to answer the matter charged upon him in the indictment. The prisoner is to be called to the bar by his name, and it is laid down in our ancient booksb that, though under an indictment of the highest nature, he must be brought to the bar without irons, or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons. But yet, in Layer's case, A.D. 1722, a difference was taken between the time of arraignment and the time of trial, and, accordingly, the prisoner stood at the bar in chains during the time of his arraignment.c

fendant to

When he is brought to the bar, he is called upon by name to Calling de. hold up his hand; which, though it may seem a trifling circum- the bar. stance, yet is of this importance, that by the holding up of his hand constat de persona, and he owns himself to be of that name by which he is called. However, it is not an indispensable ceremony; for, being calculated merely for the purpose of iden- [323] tifying the person, any other acknowledgment will answer the

a 2 Hal., P. C., 216.

b Bract., 1. 3, de Coron., c. 18, § 3; Mirr., c. 5, sect. 1, § 54; Flet., 1. 1, c. 31, 1; Britt., c. 5; Staundf., P. C.,

(1) This word in Latin (Lord Hale says) is no other than ad rationem ponere, and in French, ad reson, or, abbreviated, a resn. 2 Hal., P. C., 216.-[CHRISTIAN.]

78; 3 Inst., 34; Kel., 10; 2 Hal., P. C.,
219; 2 Hawk., P. C., 308.
e State Trials, vi., 230.
d 2 Hal., P. C., 219.

L., 2d ed., 403 to 414; post, 351.-
[CHITTY.]*

(3) And it has since been held that the court has no authority to order the irons to be taken off till the prisoner (2) As to obtaining a copy of the in- has pleaded and the jury are charged dictment, assigning counsel, appearing to try him. Waite's case, Leach, 34.and defending by attorney, and defending in forma pauperis, see 1 Chit., Crim.

[CHRISTIAN.]

* A party indicted, on his arrest, or on having given bail to appear and answer, is entitled to a copy of the indictment and of all indorsements thereon (including, of course, the names of the witnesses for the prosecution, if indorsed), 2 R. S., 728, § 53; and, on the trial of the indictment, may claim the benefit of counsel, as in civil actions.-(2 R. S., 93, § 12; Const. of 1821, art. 7, § 7; Const. of 1846, art. 1, § 6.)

purpose as well; therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient.e

Reading the indictment.

Then the indictment is to be read to him distinctly in the English tongue (which was law, even while all other proceedings were in Latin), that he may fully understand his charge. After which it is to be demanded of him whether he be guilty of the crime whereof he stands indicted, or not guilty. By the old common law the accessory could not be arraigned till the principal was attainted, unless he chose it; for he might waive the benefit of the law; and, therefore, principal and accessory might, and may still, be arraigned, and plead, and also be tried. together. But, otherwise, if the principal had never been indicted at all, had stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before the attainder, the accessory in any of these cases could not be arraigned; for non constitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessory should be convicted one day, and the principal acquitted the next, which would be absurd. However, this absurdity could only happen where it was possible that a trial of the principal might be had subsequent to that of the accessory, and, therefore, the law still continues, that the accessory shall not be tried so long as the principal remains liable to be tried hereafter. But by statute [324] i Ann., c. 9, if the principal be once convicted, and before attainder (that is, before he receives judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all, in any of these cases, in which no subsequent trial can be had of the principal, the accessory may be proceeded against as if the principal felon had been attainted, for there is no danger of future contradiction. And upon the trial of the

• Raym., 408.

(4) It was never usual to require a peer to hold up his hand. 2 Hale, 219, n. a.; Hawk., b. 2, c. 28, s. 2.-[CHIT TY.] And now this formality is altogether disused.

(5) And now, by the stat. 7 Geo. IV, c. 64, s. 9, any person who shall counsel, procure, or command any other person to commit any felony, whether at common law or by statute, shall be deemed guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with, or after the conviction of, the principal felon; or of a substantive felony, whether the principal felon shall

or shall not have been previously convicted, or shall or shall not be amenable to justice; and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. Proviso, that no person who shall be once duly tried for such offense, whether as an accessory before the fact or for a substantive felony, shall be liable to be again indicted or tried for the same of fense. Sect. 10 contains a similar provision as to persons tried as accessories after the fact. And s. 11 enacts, that if any principal offender shall be convicted of any felony, it shall be lawful to proceed against any accessory, either be

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