to be admitted to bail, unless it be prohibited by some special act of parliament.(ƒ) In order, therefore, more precisely to ascertain what offences are bailable, Let us next see who may not be admitted to bail, or what offences are not bailable. (12) And here I shall not consider any one of those cases in which bail is ousted by statute from prisoners convicted of particular offences; for then such imprisonment without bail is part of their sentence and punishment. But where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away wherever the offence is of a very enormous nature; for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused, in order to insure that justice shall be done upon him if guilty. Such persons therefore, as the author of the Mirror observes, (g) have no other sureties but the four walls of the prison. By the ancient common law, before(h) and since(i) the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1, 3 Edw. I. c. 15 takes away the power of bailing in treason and in divers instances of felony. The statutes 23 Hen. VI. c. 9, and 1 & 2 P. and M. c. 13 give further regulations in this matter;(13) and upon the whole we may collect(k) that (f) 2 Hal. P. C. 127. (g) C. 2, 24. (h) 2 Inst. 189. (i) In omnibus placitis de felonia solet accusatus per plegios dimitti, præter quam in placito de homicidio, ubi ad terrorem aliter statutum est. [In all pleas of felony the accused is usually discharged upon bail, except in the plea of murder, where, to deter others, it is otherwise decreed.] Glanv. l. 14. c. 1. (k) 2 Inst. 186. 2 Hal. P. C. 129. (12) A court will bail, whenever there is any doubt on the law, or the fact of the case. The nature of the punishment must be regarded in determining whether bail shall be given or not. Manslaughter is not a bailable offence. Ex parte Taylor, 5 Cowen (N. Y.) 39, 60, 61 (1825). In New Hampshire the rule seems to be that laid down by Leach in his note to 3 Hawk. Pl. Cr. 225: The Court of King's Bench has the power to bail in all cases whatsoever; and the judges will, in general, exercise it in favor of a prisoner in every case not capital, and in capital cases where there is any circumstance to induce the court to suppose he may be innocent, and in every case where the charge is not alleged with sufficient certainty." So in New Hampshire a person indicted for causing the death of a female by means used to procure a premature child-birth was admitted to bail, abortion not being a capital offence, but punishable by a fine or imprisonment. State v. McNab, 20 N. H. 160, 161 (1849). The judges of the Superior Court in Georgia have a discretionary power (governed by the circumstances of the case) to bail in all cases whatsoever. It is not a sufficient ground for bail that the verdict of the coroner's jury does not charge the prisoner with felonious homicide, if the affidavits and depositions taken by the coroner and the committing magistrate, taken in connection with the verdict, show that a felony has been committed, or is charged. And where, on such charge, it appears that the prisoner has confessed that the death was caused by him, he will not be bailed, unless there be the existence of some special cause to induce it. State v. Abbot, R. M. Charlton's Reports (Ga.) 244 (1822). (13) These statutes are all repealed, by the 7 Geo. IV. c. 64, by sect. I (now repealed by stat. 11 & 12 Vict. c. 42, 23), by which it is enacted "that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, ir the manner thereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices, shall be charged with felony, or on suspicion of felony, and the evidence given in support of the charge shall in their opinion not be such as to raise a strong presumption of the guilt of the person charged and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear to them in either of such cases to be sufficient ground for judicial inquiry into his or her [*299 no justice of the peace can bail, 1. Upon an accusation of treason; nor, 2. Of murder; nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; of if any indictment be found against him; nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another; 5. Persons outlawed; 6. Such as have abjured the realm; 7. *Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused; 8. Persons taken with the mainor, or in the fact of felony; 9. Persons charged with arson; 10. Excommunicated persons, taken by writ de excommunicato capiendo:(14) all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known; 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessaries to felony, that labor under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame charged with a bare suspicion of manslaughter or other inferior homicide; 15. Such persons being charged with petit larceny or any felony not before specified; or, 16. With being accessary to any felony. Lastly, it is agreed that the court() of king's bench (or any judge(m) thereof in time of vacation) may bail for any crime whatsoever, be it treason, (n) murder, (o) or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice; and yet there are cases (though they rarely happen) in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the session lasts; or such as are committed for contempts by any [*300 of the king's superior courts of justice. (p) Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law. (q)(15) But this (7) 2 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111, 298. 1 Comyns Dig. 495. (m) Skin. 683. Salk. 105. Stra. 911. 1 Comyns Dig. 497. (n) In the reign of queen Elizabeth it was the unanimous opinion of the judges that no court could bail upon a commitment for a charge of high treason by any of the queen's privy council. Anders, 298. 1 (0) In omnibus placitis de felonia solet accusatus per plegios dimitti, præter quam in placito de homicidio. Glanv. l. 14, c. 1. Sciendum tamen quod, in hoc placito non solet accusatus per plegios dimitti, nisi ex regiæ potestatis beneficio. (In all pleas of felony the accused is usually discharged upon bail, except in the plea of murder. Nevertheless it should be observed, that in this plea it is not customary to discharge the accused on bail, unless through favor of the royal authority. Ibid. c. 3. (p) Staundf. P. C. 73, b. guilt, the person charged shall be admitted to bail, by such two justices, in the manner thereinafter mentioned; provided always that nothing therein contained shall be construed to require any such justice or justices to hear evidence on behalf of any person so charged unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same.-CHITTY. (14) [For taking an excommunicated person.] (15) This is not the form where the offence is bailable and the party cannot find bail: in that case it is to keep the prisoner in custody "for want of sureties, or until he shall be discharged by due course of law." And where the commitment is in the nature of punishment, the time of imprisonment must be stated, and if it be until the party he discharged by due course of law it will be bad, (5 B. & A. 895;) but where in other respects the time of imprisonment is sufficiently stated, the unnecessary addition of the words" until he be discharged by due course of law" wili not vitiate. 3 M. & S. 283. And as to the form of the mittimus in general, see 1 Chitt. C. L. 109 to 116, 2 ed.CHITTY. imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this 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 pœnam sibi commissorum non augeant nec eos torqueant; sed omni sævitia remota, pietateque adhibita, judicia debite exequantur." (16) *301] CHAPTER XXIII. 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 2 Inst. 381. 3 Inst. 34. Flet. l. 1, c. 26. (a) Lamb. Eirenarch. l. 4, c. 5. (16) ["Let not jailers torture or augment the punishment of those entrusted to their keeping; but let the sentence of the law be duly yet mercifully executed."] (i) 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 shown 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, etc. This regulation applies, however, only to persons actually confined upon suspicion, and s solely intended to prevent the protracting of arbitrary imprisonment; so that it does not preclude the crown from preferring an indictment at any distance of time from the actual perpetration of the offence, unless some particular statute limits the time of prosecuting. 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 [Before] 167, note 12.-CHITTY. A proceeding by quo warranto is a criminal prosecution, and should be carried on in the name of the state and should conclude presented can be put to answer it. (2) 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 in themselves convictions, and cannot afterward be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. (3) Of this nature are all inquisitions of felo de se; (4) of flight in persons accused of felony; of deodands and the like; (5) and presentments of petty offences in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. (6) Other inquisitions may be afterwards traversed and examined; as particularly the coroner's *inquisition of the death of a man [*302 in the same words as an indictment, viz.: "Against the peace and dignity of the same." Donelly v. The People, 11 Ill. 552, 553 (1850). (2) "In England, almost every offender brought before the court for trial, has in the first instance, been examined and committed or bailed, by a magistrate, in the ordinary way, having been brought before him by a police officer, on his own judgment, or on the complaint of some private individual; though cases do occur where an offence is presented by the grand jury, without preliminary notice, against an absent party, 'A mode of proceeding,' however, says Brown, which is not commonly resorted to nor expedient.' Lewis v. Commissioners, 74 N. C. 194, 197 (1876). "A presentment by a grand jury is the official notice, taken by them, of any criminal offence from their own knowledge or observation, or the same from any member of their body, or from the evidence of any competent witness duly sworn given before them, or any proper evidence in the absence of a bill of indictment for the offence laid before them. It should be in writing, and contain a summary of the accusation, the names of the person or persons presented, and the names of the witnesses who can give evidence of the facts of the offence. It is not necessary that it should be signed by all the grand jury, or at all, though usually it is signed by the foreman, but it should be delivered to the court in their presence by their foreman, who is their official organ. Thus returned, it passes into the record of the court and becomes effectual, and the beginning of the prosecution. It requires no further authentication. It is such return into court, and putting it of record, that gives it efficient force." State v. Ivey, 100 N. C. 539 (1888). Upon such presentment, the officer employed to prosecute afterward frames a bill of indictment, which is then sent to the grand jury, and they find it to be a true bill." State v. Cox, 3 English (Ark.) 436, 442 (1848). An indictment averring the commission of a misdemeanor on a day named "and on divers other days and times between that day and the day of the finding and presentment of the indictment," states the time with sufficient certainty. There is no difference in the legal meaning of said indictment between the words and "presentment." Commonwealth v. Keefe, 9 Gray (Mass.) 290, 292 (1857). (3) Commonwealth v. Lockwood, 109 Mass. 323-331 (1872). (4) [Suicide.] ་་ finding" (5) But such an inquisition is now considered traversable. I Saund. 363, note 1. Impey's Off. Cor. 437.-CHITTY. (6) There is some inaccuracy in this statement. An inquisition finding that a man was felo de se cannot of course be traversed by the individual; but it may be removed into the king's bench by certiorari and then traversed by the executors or administrators of the deceased. Toomes v. Ethrington, 1 Saund. Řep. 363, n. (1), ed. 1824. As to the flight of persons accused of felony, I am not aware that this was ever made a substantive matter of inquiry distinct from the trial of the felony itself, (see post [After] 387;) and, as that trial could only be in the presence of the party accused, it was then the regular verdict of a jury after an open trial, and not a case in point. The coroner, indeed, holding an inquisition on the death of a person, may find that he was murdered by A. B. and that A. B. has fled for it; and the authorities all agree that this latter part of the finding is not traversable, though it is observed that no adequate reason for this distinction is to be found in the books. This probably was the flight which the author intended to mention. With respect to deodands, there is no mode, indeed, by which the lord of the franchise can quarrel with the finding of the jury, so as to increase the value they have affixed, but the court will interfere to diminish that value, (Foster, 266;) and therefore it must be inferred that the finding is not absolutely conclusive. And lastly, as to presentments of petty offences in the town or leet, lord Mansfield has said that it cannot be true that they are not traversable anywhere, (Rex v. Roupell, Cowp. 459;) and the law seems to be that before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of King's Bench and traversed there. Rex v. Heaton, 2 T. R. 184. Upon the whole, it may be laid down generally that, with the exception of flight on the death of a man, no finding of an inquisition can be conclusive on a party who has 1693 BOOK IV.-18. when it finds any one guilty of homicide; (7) for in such cases the of fender 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. (8) To this end the sheriff of every county is bound to return to every (c) See Appendix, ? 1. had an opportunity of vindicating his rights before the jury; while there are cases in which a party who has voluntarily foregone that right in one stage may yet traverse the finding in some future stage. As when, upon an inquiry by the sheriff under a writ of extent, the jury find certain goods to be the goods of A. B., and that finding is returned to the court of Exchequer, C. D., who claims the goods, and might have done so, but neglected to do so before the sheriff, may yet traverse the finding in the court above.— COLERIDGE. (7) 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.;) an if an indictment be found for the same offence, and the defendant be acquitted on the one, 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. Abr. 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 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 be received by the court of King's Bench as the foundation of a criminal information against another. T. R. 285.-CHITTY. (8) When grand jurors are not selected in the manner required by statute, their findings have no effect as indictments. State v. Symonds, 36 Maine, 128, 132 (1853). See Goddard v. The State, 12 Conn. 448, 452 (1838). In State v. Cox, 3 English (Ark.) 436, 442, the words "legally convoked" are appended to the definition in the text. Where an indictment, upon which witnesses had been examined, was returned by the grand jury "a true bill," and quashed because it did not sufficiently charge the offence intended, and thereupon a new bill for the offence was sent and returned into court "a true bill," without a re-examination of the witnesses upon this bill; held, that it should be quashed. State v. Ivey, 100 N. C. 539, 541 (1888). The grand jury is deemed to be an informing and accusing body, rather than a judicial tribunal. A plea in abatement to an indictment will not be sustained on the ground that one of the grand jurors by whom it was found, being otherwise competent and qualified to serve, had before the meeting of the grand jury made a personal investigation into the guilt of the accused, and had secreted himself in a room with an officer for the purpose of listening to declarations and admissions made by the accused concerning the crime, and had heard such declarations and admissions, and had listened to statements of officers to the effect that the accused was guilty, and had thereupon formed an opinion and believed him to be guilty before and at the time of the investigation by the grand jury. Commonwealth v. Woodward, 157 Mass. 516, 517 (1893). An indictment need not be certified by the foreman of the grand jury to be "a true bill," and the omission of these words is not a cause for an arrest of judgment. State v. Freeman, 13 N. H. 488, 489 (1843). It is not a valid objection to an indictment, properly returned, endorsed and filed, that the fact of its return is not recited on the minutes of the court. Mose The State, 35 Ala. 421, 425, 426 (1860). The provision of the Indiana code requiring that every indictment must be signed by the prosecuting attorney is satisfied if the attorney sign his surname in full and his Christian name by its initials. Vanderkarr v. The State, 51 Ind. 91, 93 (1875). An information is not an equivalent for an indictment within Rev. St. of U. S. 5278, requiring the surrender of a fugitive from justice on demand from another state and production of an indictment or affidavit, made before a magistrate, charging the person demanded with a crime. Ex parte Hart, 63 Fed. Rep. 249, 259 (1894), reversing 59 Fed. 894. |