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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 1 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. 4, 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,
(a) Eng. Com. L. Rep. xiv. 469. (b) Id. xxxii. 599. (c) Id. 735. (d) Id. 741. (e) Id.
where any person shall be prosecuted in his 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."
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 him 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
lin, respectively, shall be delivered at such last-mentioned session, before the jury shall be sworn for such trial."
Where the prisoner had been held to bail for a rape more than twenty days, but the grand jury ignored the bill for the capital offence, and found one for an assault with intent, &c.; Vaughan, B., allowed the defendant to traverse, on the ground that he had not been on bail for twenty days on the charge of misdemeanor. James's case, 3 C. and P. 222 (a). So where the prisoner, who had been held to bail to answer the charge more than twenty days before the assizes, was tried and acquitted for feloniously cutting, and the judge ordered a fresh indictment for a common assault to be preferred against him; Gurney, B., held that he was entitled to traverse till the next assizes. William's case, 1 Moo. and Rob. 503. See also Lee's case, 2 Lew. C. C. 276.
And by sect. 7, it is also provided, that the court at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery respectively, upon sufficient cause shown, may allow further time for pleading to the indictment or for the trial.
A defendant who has the right, and who intends to traverse an indictment, must appear in court with two sufficient sureties, and having plead[*215] ed to the indictment, must enter into a recognizance to appear, enter, and try his traverse at the next assizes or sessions as the case may be; 4 Com. 351; and if he intends to try his traverse at the ensuing assizes or sessions, he must serve the prosecutor with notice to that effect according to the practice of the court, for otherwise he cannot force the prosecutor to go to trial. Minshall's case, 8 C. and P. 576 (b). The length of notice to be given before the sessions varies according to the practice of the sessions. At the assizes, ten days' notice is required. In one case, Littledale, J., held that the notice is only a regulation of practice, and is not a condition precedent, and that if the prosecutor appeared, the want of it was cured, for he could not be allowed to appear for the mere purpose of objecting to the defect of notice. Hobby's case, 1 C. and P. 660 (c); R. and M. 241. In a recent case, however, Lord Abinger ruled that the prosecutor might appear by counsel to object to the insufficiency of the notice, without waiving the frregularity. Featherstonhaugh's case, 8 C. and P. 109 (d).
Plea.] By the 7 & 8 G. 4, c. 28, s. 1, it is enacted, "That if any person not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto a plea of not guilty, he shall by such plea, without any further form, be deemed to have put himself upon the country for trial, and the court shall in the usual manner order a jury for the trial of such person accordingly."
Where a person pleads a plea of autrefois convict, the court will not reject it on the ground of informality, but will assign counsel to put it into a formal shape, and will postpone the trial. Chamberlain's case, 6 C. and P. 93 (e).
Joinder of distinct offences in the indictment-putting the prosecutor to his election.] Although there is no objection in point of law to the
(a) Eng. Com. L. Rep. xiv. 279. (b) Id. xxxiv. 532. (c) Id. xi. 517. (d) Id. xxxiv. 316, (e) Id. xxv. 299.
insertion in separate counts of the same indictment of distinct felonies of the same degree committed by the same offender; 2 Hale, 173, 1. Leach, 1103; and it is. neither a ground for demurrer nor arrest of judgment: Id.; 1 Chit. C. L. 253; 3 T. R. 98; yet a prisoner ought not to be charged with several felonies in one indictment. Where this appears to be the case, and the fact is discovered before the party has pleaded, or the jury are charged, the Court in its discretion will quash the indictment; or if not found out till after the jury are charged, will compel the prosecutor to elect on which charge he will proceed. Young's case, 3 T. R. 106, 2 East, P. C. 515; 2 Camp. 131; 3 Camp. 132; 2 M. and S. 539. Where the prisoners were indicted in one count as principals, and in another as receivers, the judges were unanimously of opinion that the charges might legally be joined, but they were equally divided on the question, whether the prosecutor should have been put to his election, and thereupon they all agreed that directions should be given to the clerks of assize not to put both charges in the same indictment. Galloway's case, 1 Moo. C. C. 234 (a); Madden's case, Id. 277 (b). Where the prisoners were charged in one count with robbing, and a second with an assault with intent to rob, Park, J., *seemed to think that the [*216] two counts ought not to be joined in the same indictment, and called upon the prosecutor to elect on which he would go to the jury. Gough's case, 1 Moo. and R. 71.
But a prisoner may be indicted as a principal in the first degree in one count, and as a principal in the second degree in another count. Gray's case, 7 C. and P. 164 (c). See also Folkes's case, 1 Moo. C. C. 354 (d), post, tit. Rape. So a receiver may be indicted as an accessary in one count, and for a substantive felony in another count, and although in his discretion the judge. may put the prosecutor to his election, he will not do so where it is clear there is only one offence, and the joinder of the counts cannot prejudice the prisoner. Austin's case, 7 C. and P. 796 (e). See also Jervis's case, 6 C. and P. 156 (ƒ); Wheeler's case, 7 C. and P. 170 (g); Hartall's case, Id. 475 (h).
So a party may be charged in one count with being an accessary before the fact, and in another count with being an accessary after the fact, to the same felony, and the prosecutor cannot be called upon to elect upon which charge he will proceed. Per Parke, B. and Patteson, J., Blackson's case, 8 C. and P. 43.
Where an indictment for arson contained five counts, each of which charged the firing of a house of a different party, and it was opened that the five houses were in a row, and that one fire burnt them all. Erskine, J. refused, upon this opening, to put the prosecutor to his election, as it was all one transaction. Trueman's case, 8 C. and P. 727 (i).
Counts for distinct misdemeanors may be included in the same indictment, provided the judgment be the same for each offence. Young's case, 3 T. R. 98, 106; Towle's case, 2 Marsh. 466; Johnson's case, 3 M. and S. 539; Jones's case, 2 Camp. 130.
Where, however, two defendants were indicted for a conspiracy and also for a libel, and at the close of the case for the prosecution there was evidence against both as to the conspiracy, but no evidence against one
(a) 2 Eng. C. C. 234.* (6) Ibid. 277. (c) Eng. Com. L. Rep. xxxii. 480. C. C. 354. (e) Eng. Com. L. Rep. xxxii. 740. (f) Id. xxv. 330. (g) Id. h) Id. 589. (i) Id. xxxiv. 285.
(d) 2 Eng. xxxii. 483.
as to the libel; Coleridge, J., put the prosecutor to his election, on which charge he would proceed before the counsel for the defendants entered upon their defence. Murphy's case, 8 C. and P. 297 (a).
A prosecutor cannot maintain two indictments for misdemeanor for the same transaction, and he must elect to proceed with the one and abandon the other. Britton's case, 1.Moo, and R. 297.
The practice is the same whether the indictment contains distinct counts charging different offences, or, as it is more usually the case, it consists only of one count, and several felonies are disclosed by the evidence, to each of which the indictment is applicable. Thus, upon an indictment for receiving stolen goods, if it appear that the articles were received at different times, the prosecutor must elect as to the receipt on which he will proceed; but the mere probability that the goods were stolen, or received at different times, is no ground for putting the prosecutor to his election. Dunn's case, R. and M. 146. Upon an indictment for larceny, it appeared that the prisoners had taken several things out of the prosecutor's house and pledged them on different days, but whether they were all taken at once or at different times, was not known. It was held, [*217] by Alderson, B., that as *all the articles might have been stolen at one time the prosecutor was not put to his election. Hindmarch's case, Hunt's Supp. to Deacon's C. L. 1583.
It is not usual to put the prosecutor to his election immediately upon the case being opened. Wrigglesworth's case, Cor. Alderson, J., Hindmarch's Supp. to Deacon's C. L. 1583. And semble, that the reason for putting a prosecutor to his election, being that the prisoner may not have his attention divided between two charges, the election ought to be made not merely before the case goes to the jury, as it is sometimes laid down, but before the prisoner is called on for his defence at the latest. Id.
Quashing indictments.] Where an indictment is so defective that in case of conviction no judgment could be given, the court will in general quash it. Thus an indictment for perjury found at sessions has been quashed, because the sessions have no jurisdiction of perjury. Bainton's case, 2 Str. 1088. See Hewitt's case, R. and R. 158 (b). Rigby's case, S. C. and P. 770 (c). So indictments have been quashed because the facts stated in them did not amount to an offence punishable by law, Burket's case, Andr. 230. Sermon's case, 1 Burr. 516, 543. Where the application is on the part of the defendant, the courts have almost uniformly refused to quash an indictment when it was preferred for some great crime, such as treason or felony. Com. Dig. Indictment (Id.) and see Johnson's case, 1 Wils. 325, forgery, perjury, or subornation of perjury. Belton's case, 1 Salk. 372, 1 Sid. 54, 1 Vent. 370. Thomas's case, 3 D. and R. 621 (d). They have also refused to quash indictments for cheats, Orbell's case, 1 Mod. 42, for selling flour by false weights, Crookes' case, 3 Burr. 1841, and for other minor offences, see Archb. C. P. 61, 7th ed. If the application is made on behalf of the defendant, the court will not grant it, unless the defect is very clear and obvious, but will leave him to demur. 1 Chitty, C. L. 299.
But if the application is on the part of the prosecution, the court will
(a) Eng. Com. L. Rep. xxxiv. 397. (b) 1 Eng. C. C. 158. (c) Eng. Com. L. Rep. (d) Id. xvi. 179.