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late as Henry the Fourth's time, that all the relations of the slain should drag the appellee to the place of execution ;(g) a custom founded upon that savage spirit of family resentment which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law, and which prevails even now among the wild and untutored inhabitants of America; as if the finger of nature had pointed it out to mankind in their rude and uncultivated state. (h) However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may discharge an appeal;(i) nam quilibet potest renunciare juri pro se introducto."'16

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These are the several methods of prosecution instituted by the laws of England for the punishment of offences, of which that by indictment is the most general. I shall therefore confine iny subsequent observations principally to this method of prosecution; remarking, by the way, the most material variations that may arise from the method of proceeding by either information or appeal



*WE are next, in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it. [*318 We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanours been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears, according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3 in capital ones, that no man shall be put to death without being brought to answer by due process of law.


() M. 11 Hen. IV. 12. 3 Inst. 131.

(4) Robertson, Cha. V. i. 45.

() 1 Hal. P. C. 9.

16 These appeals had become nearly obsolete; but the right still existing was claimed, and in part exercised, in the year 1818, by William Ashford, eldest brother and heir-atlaw of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer Assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded "not guilty, and that he was ready to defend himself by his body;" and, taking his glove off, he threw it upon the floor of the A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singular case, in the report of it under the name of Ashford vs. Thornton, 1 B. & A. 405. It was held in that case that where in an appeal of death the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt as to leave no possible doubt in the minds of the court, and therefore that a counterplea which only stated strong circumstances of suspicion was insufficient. It was also held that the appellee may reply fresh matter tending to show his innocence,-as an alibi, and his former acquittal of the same offence on an indictment. But it was doubted whether when the counterplea is per se insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, ordered that judgment should be stayed in the appeal and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century, (see Bigby vs. Kennedy, 5 Burr. 2643, 2 W. Bl. 713. Rex vs. Taylor, 5 Burr. 2793. Smith VOL. II.-36


The proper process on an indictment for any petit misdemeanour, or on penal statute, is a writ of venire facias, which is in the nature of a summons te cause the party to appear. And if by the return to such venire it appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick, (then, upon his non-appearar ce,) *319] a writ of capias *shall issue, which commands the sheriff to take his body and have him at the next assizes; and if he cannot be taken upon the first capias, a second and third shall issue, called an alias and a pluries capias. But on indictments for treason or felony a capias is the first process; and for treason or homicide only one shall be allowed to issue,(a) or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable.(b) And so, in the case of misdemeanours, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant. 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.

The punishment for outlawries upon indictments for misdemeanours 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 book,)(c) viz., forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country.(d) His life is, however, still under the protection of the law, as hath formerly been *320] *observed; (e) so that, though antiently 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

(a) See Appendix, 1.

2 Hal. P. C. 195.

See book iii. pages 283, 284.

(d) 2 Hal. P. C. 205.

(e) See page 178.
() Mirr. c. 4. Co. Litt. 128.

vs. Taylor, id. ibid, the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder, as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 Geo. III. c. 46.-CHITTY.

1 Now, by the 48 Geo. III. c. 58, when any person is charged with an offence below the degree of felony, one of the judges, may, on an affidavit thereof, or on the production of an indictment, or an information filed, issue his warrant for apprehending and holding him to bail; and if he neglects or refuses to become so bound, he may be committed to gaol until he conforms or is discharged.-CHITTY.

By the statute 11 & 12 Vict. c. 42, s. 3, when any indictment is found in any court of oyer and terminer or gaol-delivery, or in any court of general or quarter sessions, against any person at large, whether he has been previously bound by recognizance to appear or not, the clerk of indictments, or clerk of the peace, as the case may be, may at any time issue a certificate of such indictment having been found; and, upon its production, a justice for the county or place where the offence was committed, or where the defendant resides, may issue his warrant, and thereupon commit him for trial or admit him to bail. STEWART.

2 In most cases now in which a person convicted by a verdict is deprived of clergy, a person outlawed will also be ousted of clergy; yet some few instances may perhaps still remain where a person outlawed will have clergy, though if he had been tried for the same offence he would not have been entitled to that privilege. See Foster, 358. 2 Leach. Hawk. 481. 4 T. R. 543.-CHRISTIAN.

to kill him wantonly or wilfully, but in so doing is guilty of murder, (g) unless it happens in the endeavour to apprehend him; (h) for any person may arrest an outlaw. on a criminal prosecution, either of 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 circumstantial; and if any single minute point be omitted or misconducted, 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 indictment 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 trial, to certify and remove the indictment, 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 criminal. And this is frequently done for one of these four purposes: either, 1. To consider and determine the validity of appeals or indictments, 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 defendant tried at the bar of the court of king's bench, or before 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 against the offender in those counties or places where the process of the inferior judges will [*321 not reach him.(i) Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous 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 prosecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined or confession of the fact in any of the courts below.(k)*

() 1 Hal. P. C. 497.

(*) Bracton, fol. 125.

( 2 Hal. P. C. 210.
(*) 2 Hawk. P. C. 287. 4 Burr. 749.

3 For the definition and history of the writ of certiorari, see Fitz. N. B. 554 As the court of King's Bench has a general superintendence over all other courts of criminal jurisdiction, so it may award a certiorari to remove proceedings from them, unless they are expressly exempted from such superintendence by the statutes creating them. 2 Hawk. P. C. 286. Rex vs. Young, 2 T. R. 473. Rex vs. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express negative, words, (Rex vs. Reeve, 1 W. Bla. 231;) and a statute taking away certiorari does not take it from the crown, unless expressly mentioned. Rex vs. 2 Chitt. R. 136; and see Rex vs. Tindal, 15 East, 339, n. Certio, ri lies from the court of King's Bench to justices, even in cases which they are empowered finally to hear and determine. 2 Hawk. P. C. 286. Rex vs. Morely, 2 Burr. 1040. Hartley vs. Hooker, Cowp. 524.—CHITTY.

4 But, by statute 5 & 6 W. IV. c. 33, s. 1, it was enacted that no certiorari should issue to remove any indictment or presentment into the King's Bench from any court of sessions, assize, oyer and terminer, and gaol-delivery, or any court, at the instance of the prosecutor or any other person, (except the attorney-general,) without motion first made in the King's Bench or before some judge of that court, and leave obtained in the same manner as where the application was made by the defendant. And now, by statute 16 Vict. c. 30, s. 4, no indictment, except indictments against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, can be removed into the court of Queen's Bench or into the Central Criminal Court by writ of certiorari, either at the instance of the prosecutor or of the defendant, (other than the attorneygeneral acting on behalf of the crown,) unless it be made to appear to the court from which the writ is to issue, by the party applying for the same, that a fair and impartial trial of the case cannot be had in the court below, or that some question of law of more than usual difficulty and importance is likely to arise upon the trial, or that a view of the premises in respect whereof any indictment is preferred, or a special jury, may be required for its satisfactory trial. If the indictment be removed at the instance of the defendant,

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.



*322] *WHEN the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon ; which is the fifth stage of criminal prosecution.

To arraign1 is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.(a) The prisoner is to be called to the bar by his name; and it is laid down in our antient books(b) 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)2

*323] *When he is brought to the bar, he is called upon by name to hold up his hand; which, though it may seem a trifling circumstance, 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. (d) However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the 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)

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, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessory in any of these cases could not be arraigned; for non

(a) 2 Hal. P. C. 216.

(b) Bract. l. 3, de coron. c. 18, 23. Mirr. c. 5, sect. 1, 2 54. Flet. l. 1, c. 31, 1. Britt. c. 5. Staundf. P. Č. 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.
() Raym. 408.

he must enter into a recognizance to pay costs if convicted; and so, on the other hand, if the indictment be removed at the instance of the prosecutor, he must enter into a recog. nizance to pay costs in the event of the defendant being acquitted.—STEWART.

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

And it has since been held that the court has no authority to order the irons to be taken off till the prisoner has pleaded and the jury are charged to try him. Waite's case, Leach, 34.-CHRISTIAN.


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 *1 Anne, 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 accessory, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice,(f) that the accessory is at liberty (if he can) to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law.

When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraignment; or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment,―of standing mute, or confession.

I. Regularly, a prisoner is said to stand mute when, being arraigned for treason or felony, he either, 1. Makes no answer at all; or, 2. Answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise; or, 3. Upon having pleaded not guilty refuses to put himself upon the country.(g) If he says nothing, the court ought, ex officio, to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei. If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty.(h) But whether judgment of death can be given against such a

(f) Fost. 365, &c.

(9) 2 Hal. P. C. 316.

(*) 2 Hawk. P. C. 327.

And now, by the 11 & 12 Vict. c. 45, s. 1, an accessory before the fact to any felony may be indicted, tried, convicted, and punished in all respects as if he were a principal felon; and an accessory after the fact to any felony may be indicted and convicted either as an accessory after the fact to the principal felony with the principal felon, or may be indicted and convicted 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.-. STEWART.

See the 7 Geo. IV. c. 64, by sect. 9 of which accessories before the fact, whether in cases of felony at common law, or by virtue of any statute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be committed on the seas or abroad, and, if the offences be committed in different counties, may be tried in either.

By sect. 10, accessories after the fact may be tried by any court having jurisdiction over the principal felons, as in the preceding section; and, by sect. 11, in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, it is enacted that accessories may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further, as to arraignment, 1 Curw. Hawk. P. C. 434. 1 Chitt. C. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64.-CHITTY.

5 By 7 & 8 Geo. IV. c. 28, s. 1, where the prisoner pleads "Not guilty," without more, he shall be put on his trial by jury; and, by sect. 2, if he refuses to plead, the court may order a plea of "Not guilty" to be entered, and proceed as in other cases. But the latter is discretionary; and where there is any real doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, impanel a jury to try that question. In cases of insanity this is specially provided for by the unrepealed statute of 39 & 40 Geo. III. c. 94, sect. 1 of which enacts that the jury, in case of any person charged with treason, &c., proving upon the trial to be insane, shall declare whether he

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