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declaratory of the old common law; for in the Gothic constitutions we find the same "præscriptio annalis, quæ currit adversus actorem, si de homicia ei non constet intra annum a cæde facta, nec quenquam interea arguat et accuset." (a) (49)

These appeals may be brought previous to any indictment; and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. (50) In like manner as by the old Gothic constitution, if any offender gained a verdict in his favor when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same) offence; (b) but, on the contrary, if he made his peace with the king, still he' might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day past, by virtue of the statute 3 Hen. VII. c. 1, in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that " nemo bis punitur pro eodem delicto." (51) Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals, which produced very great inconvenience, of which more hereafter. (c)

*316] *If the appellee be acquitted, the appellor (by virtue of the statute of Westm. 2, 13 Edw. I. c. 12) shall suffer one year's imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained; and if the appellor be incapable to make restitution, his abettors shall do it for him and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta, (d) proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.

If the appellee be found guilty, he shall suffer the same judgment as if he had been convicted by indictment, but with this remarkable difference: -that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it than he can remit the damages recovered on an action of battery. (e) In like manner as while the weregild continued to be paid as a fine for homicide it could not be remitted by the king's authority. (f) And the ancient usage was, so 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 con

(a) Stiernh. de jure Goth. l. 3, c. 4.

(b) Ibid. l. 1, c. 5. (c) See page 335.

(d) L. 1, c. 34, 48.

(e) 2 Hawk. P. C. 392.
(f) LL. Edm. 3.

(g) M. 11 Hen. IV. 12. 3 Inst. 131.
(h) Robertson, Cha. V. i. 45.

(49) ["Limitation of a year, which runs against the appellor, if he prove not the homicide within a year from its perpetration, or bring his accusation within that time."] (50) An appeal of murder, though a suit between plaintiff and defendant, is yet a criminal proceeding. Francis v. Lewis, II Conn. 200, 203 (1836).

(51) ["No one is punished twice for the same offence."]

currence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may *discharge [*317 an appeal;() "nam quilibet potest renunciare juri pro se introducto." (52)

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 my 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.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

*WE are next, in the fourth place, to inquire into the manner of [*318 issuing process, after indictment found, to bring in the accused to answer it. 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 misdemeanors 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.

(i) I Hal. P. C 9.

(52) [For anyone may relinquish a right introduced for his own avail."] 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-at-law 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 court. 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 v. 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 [By itself ] 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 v. Kennedy, 5 Burr. 2643, 2 W. Bl. 713. Rex v. Taylor, 5 Burr. 2793. Smith v. 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.

The proper process on an indictment for any petit misdemeanor, or on a penal statute, is a writ of venire facias, (1) which is in the nature of a summons to 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, *319] upon his non-appearance,) a writ of capias(2) *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(3) and a pluries capias. (4) 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 misdemeanors, 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. (5) 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, (6) 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 misdemeanors is the same as for outlawries upon civil actions, (of which, and the previous process by writs of capias, exigi facias, (7) 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)(8) His life is, however, still under the protection of (a) See Appendix, 2 1. (c) See book iii. pages 283, 284. (d) 2 Hal. P. C. 205.

(b) 2 Hal. P. C. 195.

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(5) 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.

(6) [Required the fifth time.]

(7) [That you cause to be required.]

(8) 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

[*320

the law, as hath formerly been *observed; (e) so that, though anciently an outlawed felon was said to have caput lupinum, (9) 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 wilfully, but in so doing is guilty of murder, (g) unless it happens in the endeavor 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, (10) 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. (11)

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(12) 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, (13) 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, (14) or before the justices of nisi prius;(15) 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 [*321 where the process of the inferior judges will not reach him. (¿) Such writ of certiorari, (16) 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

(e) See page 178.

(f) Mirr. c. 4. Co. Litt. 128.

(g) 1 Hal. P. C. 497.

(h) Bracton, fol. 125.
(i) 2 Hal. P. C. 210.

same offence he would not have been entitled to that privilege. See Foster, 358. 2 Leach, Hawk. 481. 4 T. R. 543.-CHRISTIAN.

(9) [A wolf's head.]

(10) [That you take the outlaw.]

(11) By the common law, one is an outlaw who has been so declared by a court of justice, in some regular proceeding for that purpose; and this could take place in either a civil or a criminal proceeding. Dale County v. Gunter, 46 Ala. 118, 138 (1871). (12) [That you cause to be informed of.]

2

(13) 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. Hawk. P. C. 286. Rex v. Young, 2 T. R. 473. Rex v. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express negative, words, (Rex v. Reeve, 1 W. Bla. 231;) and a statute taking away certiorari does not take it from the crown, unless expressly mentioned. Rex v. 2 Chitt. R. 136; and see Rex v. Tindal, 15

East, 339, n. Čertiorari 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 v. Morely, 2 Burr. 1040. Hartley v. Hooker, Cowp. 524.-CHITTY.

(14) State v. Sluder, 8 Ired. (N. C.) 487, 490 (1848).

(15) [Unless before.]

(16) [To be informed 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) (17)

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.

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CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

*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. (1)

To arraign (2) is nothing else but to call the prisoner to the bar of the

(k) 2 Hawk. P. C. 287. 4 Burr. 749.

(17) 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 indcitment, 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, 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 recognizance to pay costs in the event of the defendant being acquitted.-STEWART. For cases in which this unit has been issued to some inferior court to remove before trial a cause pending there, see People v. Runkle, 6 Johns. (N. Y.) 334 (1810). Nicols v. State, 5 N. J. 539 (1819). State v. Canal Co., 13 N. J. 192 (1832). State v. Studer, 8 Ired. 487 (1848). Kendrick v. State, Cooke (Tenn.) 474. In Vermont it has never been the practice to bring cases from the inferior courts into the supreme court for trial, which is the principal use of the writ of certiorari, in England, where it is more generally confined to criminal proceedings. Woodstock v. Gallup, 2 Williams, 587, 591 (Vt. 1856).

(1) An arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment. People v. Bradner, 107 N. Y. (62 Sickels) 1, 9 (1887). A formal arraignment of one charged with a criminal offence may not be indispensable to the regularity of a conviction. State v. Hughes, I Ala. 655, 657 (1840).

(2) This word in Latin (lord Hale says) is no other than ad rationem ponere [To place to account], and in French, ad reson [To call to account], or, abbreviated, ad resn. 2 Hal. P. Č. 216.-CHRISTIAN. See Binns' Justice, 10 ed. 68.

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