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Sect. 22, after reciting that “it often happens that a person 11 & 12 Vict.
c. 42. " is charged before a justice of the peace with an offence
Examination, “ alleged to have been committed in another county or place &c. where the “ than that in which such person has been apprehended, or offence was
committed in “ in which such justice has jurisdiction, and it is necessary to another “ make provision as to the manner of taking the examination county, &c. “ of the witnesses, and of committing the party accused, or Sect. 22. “ admitting him to bail, in such a case," enacts,—"that Accused may
be examined “whenever a person shall appear or shall be brought before
where appre"a justice or justices of the peace in the county, riding, hended. “ division, liberty, city, borough, or place wherein such jus“ tice or justices shall have jurisdiction, charged with an “offence alleged to have been committed by him in any “ county or place within England or Wales wherein such “justice or justices shall not have jurisdiction, it shall be “ lawful for such justice or justices, and he and they are “ hereby required, to examine such witnesses, and receive “such evidence in proof of such charge as shall be produced • before him or them, within his or their jurisdiction ;
“ And, if in his or their opinion such testimony and evi- If evidence " dence shall be sufficient proof of the charge made against committal to
sufficient, “such accused party, such justice or justices shall thereupon prison where
offence com" commit him to the common gaol or house of correction for
mitted. " the county, &c. where the offence is alleged to have been “ committed, or shall admit him to bail as hereinafter men“ tioned,-39 and shall bind over the prosecutor (if he have “ appeared before him or them) and the witnesses by recog• nizance accordingly, as is hereinbefore mentioned ;-40
“ But if such testimony and evidence shall not in the opinion If insufficient, “of such justice or justices be sufficient to put the accused party accused to be “ upon his trial for the offence with which he is so charged, county, &c. " then such justice or justices shall 41 bind over such witnesses where offence
committed. “ as he shall have examined, by recognizance, to give evidence, " as hereinbefore is mentioned,-42 and such justice or justices
39 Sect. 23, post, pp. 977—981, as to bailing accused, &c. 40 Sect. 20, post, p. 966, as to binding over prosecutor, &c.
41 The discretion with the justice in this case is either to commit the aocused for trial or to send him into the county, &c. where offence committed. By the terms of this section the justice is not to discharge the accused, although he has the whole of the evidence before him, and that evidence is clearly insufficient to warrant a committal; but he may safely do so under such circumstances.
42 Sect. 21, ante, p. 936, to give evidence on the further examination of the charge, or sect. 20, post, p. 966, to give evidence on the trial if the
11 & 12 Vict.
“shall, by warrant (R 1), under his or their hand and seal or
“hands and seals, order such accused party to be taken before Sect. 22. “ some justice or justices of the peace in and for the county, &c.
c “ where and near unto the place where the offence is alleged " to have been committed,-and shall at the same time deliver “ the information and complaint, and also the depositions and
recognizances so taken by him or them, to the constable who " shall have the execution of such last-mentioned warrant, to “ be by him delivered to the justice or justices before whom " he shall take the accused in obedience to the said warrant," and which said depositions and recognizances shall be “ deemed to be taken in the case, and shall be treated to all “ intents and purposes as if they had been taken by or before “ the said last-mentioned justice or justices,—and shall, to“gether with such depositions and recognizances as such last“mentioned justice or justices shall take in the matter of such "charge against the said accused party, be transmitted to the “ clerk of the court where the said accused party is to be tried, “ in the manner and at the time hereinbefore mentioned, 43 “ if such accused party shall be committed for trial upon the
" said charge, or shall be admitted to bail :Costs of con- “And in case such accused party shall be taken before the veying the ac: "justice or justices last aforesaid by virtue of the said lastproper
mentioned warrant, the constable or other person or persons county, &c. to o to whom the said warrant shall have been directed, and who be borne by the last-men- “shall have conveyed such accused party before such lasttioned county, « mentioned justice or justices, shall be entitled to be paid his &c.
“ costs and expenses of conveying the said accused party be“fore the said justice or justices,—and upon the said con“stable or other person producing the said accused party “ before such justice or justices and delivering him into the
custody of such person as the said justice or justices shall “ direct or name in that behalf, and upon the said constable “ delivering to the said justice or justices the warrant, infor“mation (if any), depositions and recognizances aforesaid, “and proving by oath the handwriting of the justice or jus“ tices who shall have subscribed the same, such justice or “ justices to whom the said accused party is so produced shall
witnesses so examined have completed their evidence, is here intended; but there is no power in the statute to bind witnesses to give evidence on a further examination.
43 Sect. 20, post, p. 966.
thereupon forth with ascertain the sum which ought to be 11 & 12 Vict. “paid to such constable or other person for conveying such
Sect. 22. " accused party and taking him before such justice or justices, " as also his reasonable costs and expenses of returning, and " thereupon such justice or justices shall make an order (R2) “ upon the treasurer of the county, riding, division or liberty, “ city, borough or place,-or if such city, borough or place “ shall be contributory to the county rate of any county,
riding, division or liberty then upon the treasurer of such “ county, riding, division or liberty respectively to which it is “ contributory,- for payment to such constable or other person “ of the sum so ascertained to be payable to him in that “ behalf, and the said treasurer, upon such order being pro“duced to him, shall pay the amount to the said constable or * other person producing the same, or to any person who “shall present the same to him for payment:
“Provided always, that if such last-mentioned justice or Proviso. "justices shall not think the evidence against such accused “ party sufficient to put him upon his trial, and shall discharge “ him without holding him to bail, every such recognizance " so taken by the said first-mentioned justice or justices as « aforesaid shall be null and void.” 44
[Vide R. 1, 2, Nos. 62, 63, Oke's “ Formulist,” 6th ed., p. 496.]
6. Committal or Discharge of Accused. In cases where an indictment is already found against an Commitment accused, the course to be pursued is pointed out by 11 & 12 of accused on
an indictment Vict. c. 42, s. 3 (ante, p. 910), whether he is already in custody found. or at large. If at large, a warrant is to be granted for his Sect. 3. apprehension, and he is, on proof only of identity, to be committed for trial; if he is in custody, a warrant of detainer is lodged at the gaol.
44 Notice should be given of this fact to the witnesses who have been bound over to appear on the trial. If any one of them is in custody for pot entering into the recognizance, he should be at once discharged pursuant to the proviso to sect. 20, post, p. 966.
11 & 12 Vict. Where a charge is heard and completed before two or more c. 42.
justices, the decision in the case, whether of committal or disWhen more than one jus- charge of the accused, should be that of the majority of the tice hearing justices present and acting in the case. If only two justices case, decision to be made by hear it and they differ in opinion, or if more than two and majority. there is not a majority upon the question of committal or dis
charge, the course taken should be to adjourn the case, and on the attendance of additional or other justices to re-swear before them and the accused the witnesses already examined and read over to them their former depositions, and the decision of the majority of such justices would determine the
question. Sect. 25. In ordinary cases, after the statement of the accused and
the evidence (if any) tendered on his behalf is heard, the accused is discharged or committed for trial, as pointed out by sect. 25 (ante, p. 956). By that section the “justice or justices “shall, by his or their warrant (T 1), commit him to the “common gaol or house of correction for the county, riding, “ division, liberty, city, borough or place to which by law he
may now be committed, -45 or, in the case of an indictable
45 The committal may be to the common gaol of the county, &c. : or it may be to any house of correction near to the place where the assizes or sessions are to be holden at which the accused is intended to be tried (5 & 6 Will. 4, c. 38, s. 3). By 14 & 15 Vict. c. 20, justices in quarter sessions for a county, riding or division may declare that any gaol or house or correction for such county, &c. is a fit prison for persons committed for trial at the assizes. As to committals for offences not triable at quarter sessions from certain counties of cities or towns to which a commission of oyer and terminer is not directed, the offender is committed to the city or town gaol, and the commitment is to state that it is made pursuant to 14 & 15 Vict. c. 55; but the recognizances to prosecute and give evidence are to be conditioned to appear, &c. at the assizes for the next adjoining county (14 & 15 Vict. c. 55, s. 19), and the offender is to be removed to the county gaol previous to the trial (sect. 21). If an offence is committed in a borough which is situate partly in one county and partly in another, the offence is triable in either county under this act_(14 & 15 Vict. c. 55, s. 19; Reg. v. Gallant, 1 F. & F. 517, Pollock, C. B.). As to committals from towns, &c., not being counties, the 60 Geo. 3 & 1 Geo. 4, c. 19, 8. 1, authorizes the justices to commit for capital felonies to the gaol of the county, to be tried at the next assizes ; and as to the committal for felonies in boroughs or franchises having or not having a power to determine felonies, see 4 & 5 Will. 4, c. 27, ss. 1, 2, 3, and 13 & 14 Vict. c. 91, 8. 1. “ The Prison Act, 1865," 28 & 29 Vict. c. 126, ss. 63–66, contains provisions for the removal of prisoners from one prison to another for trial, and for other causes.
As to where the committal must be, whether to the assizes or quarter sessions, see the provisions of the 5 & 6 Vict. c. 38, as amended in respect to bankruptcy offences, set out post, pp. 973, 974. When the offence is triable at either, and the sessions will be holden first, the justices may commit to either, and consequently over to the ordinary assizes ; but if the assizes take place first, they should send the case to it, as the judges sed,
“offence committed on the high seas, or on land beyond the
46 to the common gaol of the county, riding, division, city, liberty, borough, or place within which such justice or “ justices shall have jurisdiction,—to be there safely kept
until he shall be thence delivered by due course of law,* or admit him to bail as hereinbefore mentioned.” 47
If the accused is intended to be committed on two or more Detainer of charges of felony or misdemeanor, which cannot be included accused on
second in one indictment, a commitment should be made in one charge. charge and a detainer in the other or each of the others. 48 As to the form of the technical charges, it is advisable, since Form of the Vexatious Indictments Act, 22 & 23 Vict. c. 17, ante,
charges. pp. 876, 877 (as amended by 30 & 31 Vict. c. 35, ss. 1, 2), in cases to which it and the evidence apply, to frame the commitment and detainers with some care and particularity, as well as the recognizance to prosecute, in order to render unnecessary an application to the court or a judge for leave to indict or insert counts for the offences in such cases.
&c. on poor,
7. Ordering Prosecution in certain Cases. Justices have no general power to order a prosecution to be 24 & 25 Vict.
c. 100. instituted or carried on; but with respect to offences by masters
For assaults, on poor persons or apprentices, or assaults on persons under sixteen years of age, the 24 & 25 Vict. c. 100, s. 73, enacts,- persons and
apprentices, or persons
under sixteen. could deliver the gaol of such prisoners as the justices commit for the sessions. With respect to the winter gaol delivery, prisoners triable at quarter sessions should not (unless from the circumstances of any particular case the committing magistrate shall deem it expedient) be committed for trial thereat, nor does that gaol delivery, as a rule, take any bail cases.
It is desirable that the commitment should definitely state whether the accused is to be detained until the sessions or the assizes.
As to the special venue in certain offences, and where they can be tried, see Vol. I., paragraphs Nos. 18—26, pp. 22–25, which, when necessary, is noticed under the respective titles in Chap. II. of this part, post.
46 As to the Admiralty jurisdiction, see p. 903. As to what offences committed on land beyond the seas are triable in England, see p. 904.
47 In sect. 23, post, p. 977, " Bailing Accused after Examination."
48 See ante, p. 953, where several charges against accused, and Form of Detainer, Oke's “ Formulist,” 6th ed., No. 56, p. 494.