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And by sec. 11, “If any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessary, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder ; and every such accessary shall suffer the same punishment, if he or she be in anywise convicted, as he or she should have suffered if the principal had been attainted.”

Since the above statute an accessary after the fact may be tried, either at the same time with the principal felon, or after his conviction. If the principal has been formerly convicted, and that conviction is alleged in the indictment, it must be proved in the ordinary way by an examined copy. The conviction appears to be evidence, not only of the fact of the principal having been convicted, but also to be prima facie evidence, that he was guilty of the offence of which he was so convicted (1). Foster, 365 ; 2 Stark. Ev. 7, 2d ed.

An accessary may avail himself of every matter, both of law and fact, to controvert the guilt of his principal, and the record of the conviction of the principal is not conclusive against him (2). Foster, 365; Smith's case, I Leach, 288; Prosser's case, Id. 290, (n.) | Russell, 39, Cook v. Field, 3 Esp. 134, and see post, title, Receiving stolen goods.

Wherever a variance is material as to the principal, it is material and available as to the accessary; and vice versa, where a variance is immaterial to the principal, it is in material to the accessary. 2 Stark. Ev. 9, 2d ed. ; Hawk. P. C. b. 2, c. 23, s. 176, 9.

If A. be indicted as accessary to B. and C., he may be convicted on evidence that he was accessary to C. only. Wallis' case, I Salk. 334.

For the punishment of accessaries after the fact, see ante, p. 206.

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Arraignment

210 Opening the case Postponing the trial

212 Prisoners' counsel act Traverse in misdemeanors

213 | Discharge of jury Plea

215 | Former conviction Joinder of distinct offences in the indict. Trial

ment-putting the prosecutor to his Verdict election

215 | Judgment Quashing indictments

217 Recording judgment of death Particulars of the offence

218 | Costs, expenses, and rewards

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Arraignment in general.] A person indicted for felony must in all (1) Where the principal and accessary are joined in one indictment, but are tried separately, the record of the conviction of the principal is prima facie evidence of his guilt, upon the trial of the accessary, and the burthen of proof rests on the accessary, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted. Commonwealth v. Knapp, 10 Pick. 477. See also State o. Crank, 2 Bailey, 66. It is not necessary to set out the conviction of the principal in the indictment. Ibid. The court may in its discretion permit an accessary to be tried separately from the principal. State o. Yancey, 1 Const. Rep. 237.

(2) U. States v. Wood, A 'Wash. C. C. Rep. 440. S. C. 3 Wheeler's C. C. 325.

cases appear in person and be arraigned, but this does not apply to misdemeanors. 1 Chit. C. L. 414; 4 BI. C. 375.

The arraignment consists of three parts; the calling the prisoner to hold up his hand, the reading over the indictment to him, and the asking hin whether he is guilty or not guilty. 2 Hale, 219.

If the prisoner upon bis arraignment refuse to answer, it becomes a question whether it is of malice, or whether he is mute by the visitation of God. The court will in such case direct a jury to be impanneled, who are immediately returned, Jones' case, 1 Leach, 102, from amongst the by-standers, 1 Chitty, C. L. 424. The prisoner's counsel may address the jury and call witnesses, for the affirmative of the issue is on him. Roberts' case, Carr. C. L. 57.

Where a verdict of mute by the visitation of God is returned, the court will order the trial to proceed, if the prisoner is of competent intellect, and can be made to understand the nature of the proceedings against him. Thus where it appeared that a prisoner who was found mute, had been in the habit of cominunicating by means of signs, and a witness was called who stated that he was capable of understanding her by means of signs, he was arraigned, put upon his trial, convicted of simple larceny, and received sentence of transportation. Jones' case, i Leach, 102; 1 Russ. 7.

So where a prisoner who was found mute could read and write, the indictment was handed to him with the usual questions written upon paper. After he had pleaded, and stated in writing he had no objection to any of the jury, the trial proceeded. The judge's note of the evidence was handed to him after the examination of each witness, and he was asked [ *211] in writing if he bad any question to put. The *proof on the part of the prosecution being insufficient, he was acquitted without being called upon for his defence. Thompson's case, 2 Lew. C. C. 137.

But where a prisoner is deaf and dumb, and cannot be made to comprehend the nature of the proceedings and the details of the evidence, the proper course seems, after the jury have found him mute by the visitation of God, to re-swear the jury to inquire whether he is able to plead to the indictment; and if that be found in the affirmative, then to swear them again, to inquire if the prisoner be sane or not, and if the jury find him to be insane, the judge will order him to be confined under the 39 and 40 Geo. 3, c. 94, s. 2, post. “ There are three points to be inquired into.

1st. Whether the prisoner is mute of malice or not. 2d. Whether he can plead to the indictment or not. 3d. Whether he is of sufficient intellect to comprehend the course of proceedings at the trial so as to make a proper defence.” Per Alderson, B. Pritchard's case, 7 C. and P. 203 (a). See also Dyson's case, ibid. 305 (n).

If the prisoner stands mute of malice, or will not answer directly to the indictment, or information, (for treason, felony, piracy, or misdemeanor,) it is enacted by 7 and 8 Geo. 4, c. 28, s. 2, that in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of “not guilty," on behalf of such person, and the plea so entered, shall have the same effect as if such person had actually pleaded the same (1).

(1) U. States o. Hare, 3 Wheelers' C. C. 285.

(a) Eng. Com. L. Rep. xxxii. 517.

Where the prisoner refused to plead on the ground that he had already pleaded to an indictment for the same offence, (which had been tried before a court not having jurisdiction,) it was held that the court might order a plea of “not guilty,” to be entered for him under the above statute. Bitton's case, 6 C. and P. 92 (a).

In cases of insanity, it is enacted by the 39 and 40 Geo. 3, c. 94, s. 2, that if a person indicted for any offence appears insane, the court may, on his arraignment, order a jury to be impanneled to try the sanity, and if they find him insane, may order the finding to be recorded, and the insane person to be kept in custody till his majesty's pleasure be known. And by the same statute, s. 1; if upon the trial for treason, murder, or felony, insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find specially whether insane at the time of the commission of the offence, and whether he was acquitted on that account; and if they find in the affirmative, the court inust order him to be kept in custody till his majesty's pleasure be known.

The above enactment applies to inisdemeanors as well as to felonies. Little's case, Russ. and Ry. 430 (6).

Where a party was indicted for a misdemeanor in uttering seditious words, and upon his arraignment refused to plead, and showed symptoms of insanity, and an inquest was forthwith taken under the above statute to try whether he was insane or not. It was held, 1st, that the jury might form their own judgment of the present state of the defendant's mind from his demeanor while the inquest was being taken, and might thereupon find him to be insane without any evidence being given as to his present state. *2d, That upon the prisoner showing strong symp- [ *212 ] toms of insanity in court during the taking of the inquest, it became unnecessary to ask him whether he would cross-examine the witnesses on the inquest, or would offer any reinarks on evidence. "Goode's case, 7 A.. and E. 536 (c).

A grand jury ought not to ignore a bill on the ground of insanity, but if they believe that the acts done, if committed by a sane person, would have amounted to the offence charged, it is their duty to find the bill, otherwise the court cannot order the party to be detained in custody under the foregoing act. Hodges' case, 8 C. and P. 195 (d).

Postponing the trial.] No traverse is allowed in a case of felony, but where the courts deem it necessary for the purposes of justice, they will postpone the trial until the next assizes or sessions. Instances have occurred in which a principal witness has been of such tender years and so ignorant as not to understand the nature and obligation of an oath, the judge has ordered the trial to be put off until the next assizes, and directed the child in the meantime to be instructed in religion. Ante, p. 115. Also where it appears by affidavit that a necessary witness for the prisoner is ill, Hunter's case, 3 C. and P. 591 (e), or that a witness for the prosecution is unavoidably absent, or is kept out of the way by the contrivance, or at the instigation of the prisoner, the court will postpone the trial.

In Palmer's case, 6 C. and P. 652 (f), the judges of the Central Crim

(n) Eng. Com. L. Rep. xxv. 208. (6) 1 Eng. C. C. 430. (c) Id. xxxiv. 150. (d) Id.

xxxiv. 350. (c) Id. xiv. 469. () Id. xxv. 579.

inal Court postponed until the next session the presentment of a bill for a capital offence to the grand jury, upon the affidavit of the attorney for the prosecution, that a witness whose evidence was sworn to be material, was too ill to attend, and they refused to refer to the deposition of the witness to ascertain whether he deposed to material facts.

Where; in a case of murder committed in Newcastle-upon-Tyne, which had created great excitement, a newspaper published in the town had spoken of the prisoner as the murderer, and several journals down to the time of the assizes had published paragraphs, implying or tending to show his guilt, and it appeared that the jurors at such assizes were chosen from within a circle of fifteen miles round Newcastle, where such papers were chiefly circulated, Alderson and Parke, B. postponed the trial until the following.assizes. Bolan's case, Newcastle Spring Ass. 1839, MS. See also Jolliffe's case, 4 T. R. 285.

In no instances will a trial be put off on account of the absence of witnesses to character. Jones's case, 8 East, 34.

Where the prisoner applies to postpone the trial, he will be remanded and detained in custody till the next assizes or sessions, or will be admitted to bail, but he is never required to pay the costs of the prosecutor. Hunter's case, 3.C. and P. 591 (a). Where the application is by the prosecutor, the court in its discretion will either detain the prisoner in custody, or admit him to bail, or discharge him on his own recognizances. Beardmore's case, 7 C. and P. 497 (b); Parish's case; Id. 782 (c); Osborne's case, Id. 799 (d); see also Crowe's case, 4.C. and P. 251 (e).

The postponement of a trial sometimes originates with the court. [ *213 ] *Thus if several be in custody for a conspiracy or other joint misdemeanor, and bills have been found, and one or more of them prefer to take their trial immediately, and others to traverse, the court will put off • the trial till the period when, by the customary expiration of the traverse, all the parties can be tried together. See further, Dict. Quart. Sess. 457, 4th ed.

The right of the court to postpone the trial in cases of misdemeanor, is recognized by the 60 Geo. 3.and i Geo. 4, c. 4, post.

Traverse in misdemeanors.) With respect to misdemeanors, formerly the defendant was not bound to have the indictment against him tried at the same assizes or sessions at which it was found, but if he was in custody, he was called upon to plead to the indictment, and he might then traverse it until the next assizes or sessions; and the same if he was brought in by process during the assizes or sessions at which the bill was found; but if not in custody at the finding of the bill, or if he was not brought in by process during the assizes or sessions at which it was found, but he was brought in or bound over by recognizance previously to some subsequent assizes or sessions; then he was bound not only to plead to the indictment, but also to be tried upon it at such subsequent assizes or sessions. Archb. Quart. Sess. 243.

Now, it is enacted, by the stat. 60 Geo. 3, and 1 Geo. 1, c. 4, (which by s. 10 does not extend to prosecutions by information in the nature of a quo warranto, or for the non-repair of any bridge or highway), “ that, where any person shall be prosecuted in bis majesty's courts of King's Bench (at Westminster or Dublin,) for any misdemeanor, either by information or by indictment there found, or removed into that court, and shall appear in term time in either of the said courts respectively, in person to answer to such indictment or information, such defendant, upon being charged therewith, shall not be permitted to imparle to a following term ; but shall be required to plead or demur thereto, within four days from the time of his or her appearance; and in default of his or her pleading or demurring within four days as aforesaid, judgment may be entered against the defendant for want of a plea ; and in case such defendant shall appear to such indictment or information by his or her clerk or attorney in court, it shall not be lawful for such defendant to imparle to a following term, but a rule requiring such defendant to plead may forthwith be given; and a plea or demurrer to such indictment or information enforced, or judgment by default entered thereupon, in the same manner as might have been done before the passing of this act, in cases where the defendant had appeared to such indictment or information by his or her clerk in court, or attorney in a previous term.”

(a) Eng. Com. L. Rep. xiv. 469. (b) Id. xxxii. 599. (c) Id. 735.

xix. 369.

(d) Id. 741. (e) Id.

But by sect. 2, the court, or a judge, may on sufficient cause shown, allow further time for the defendant to plead or demur.

By sect. 3, it is enacted, “That where any person shall be prosecuted for any misdemeanor, by indictment, at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery, within that part of Great Britain called England, or in *Ireland, having [ *214 ] been committed to custody, or held to bail to appear to answer for such offence, twenty days at the least before the session, at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session, or session of gaol delivery, respectively, unless a writ of certiorari for removing such indictment into his Majesty's Courts of King's Bench at Westminster or in Dublin, respectively, shall be delivered at such session before the jury shall be sworn for such trial.” And by sect. 4, it is enacted, that the writ of certiorari may issue as well before indictment found as after.

Where a person was bound over (but within twenty days) to appear at the assizes, Parke, B., held that the above section did not exempt bim from pleading, but only from taking his trial at such assizes. Hewson's case, 2 Lew. C. C. 277.

And by sect. 5, it is enacted, “ that where any person shall be prosecuted for any misdemeanor, by indictment, at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery, within the part of Great Britain called England, or in Ireland, not having been committed to custody, or held to bail to appear to answer such offence, twenty days before the session, at which such indictment shall be found, but who shall have been committed to custody, or held to appear to answer such offence at some subsequent session, or shall have received notice of such indictment having been found, twenty days before such subsequent session, he or she shall plead to such indictment, at such subsequent session, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session or session of gaol delivery, respectively, unless a writ of certiorari for removing such indictment into his Majesty's Courts of King's Bench at Westminster or in Dub

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