Informations

by quo war

ranto, now considered as merely civil proceedings.

bench; and every prosecutor shall give security to prosecute the same with effect, and to pay costs to the defendant if he be acquitted, unless the judge who tries the information, shall certify there was reasonable cause for filing it; and at all events pay costs, unless the information be tried within a year after issue joined. But informations exhibited by the attorneygeneral are not affected by this statute.

There is one species of informations still farther regulated by 9 Ann. c. 20, viz., those in the nature of a writ of quo warranto, before explained (g), which is properly a criminal prosecution, though usually considered as merely a civil proceeding.

Process.

In treason or felony.

In misdemeanors.

Outlawry in

treason or

felony.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

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 has fled or secretes himself in capital cases; or has 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. And if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears.

In all cases of treason or felony, the practice is to issue a capias to bring in the defendant (a). And in the case of misdemeanors it is usual to have a bench warrant against the defendant, or for a judge of the queen's bench, upon certificate of an indictment found, to award a writ of capias immediately to bring him in.

But if he absconds, and is to be pursued to an outlawry, after the writ of capias, the defendant shall be put in the exigent:

(g) See ante, p. 375.

(a) On a bill being found (at sessions) for felony, if the party indicted be not in custody, or under recognizance to appear, the court will, on application to the clerk of the peace, issue a capias, tested by the two senior justices who are present. If the defendant does not appear, is not taken, or escapes after being taken, an alias and pluries capias will issue in succession; and if unavailing, a writ of exigent. By 4 & 5 W. & M. c. 22, s. 4, a writ of proclamation must issue at the same time as the exigent, bearing the same teste and return, requiring generally the defendant to render himself to the sheriff, so that he may have his body before the justices on the return day of the exigent; R. v. Yandell, 4 T. R. 521, 535.-Dickenson's Quarter Sess. Prac. by Serjeant Talfourd, 4th ed. p. 182.

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. The punishment for outlawries upon indictments for misdemeanors, is the same as for outlawries upon civil actions. But an outlawry in treason or 2 Hal. P. C. felony amounts to a conviction and attainder of the offence 1 Hal. P. C.

205.

charged in the indictment, as much as if the offender had been 497. found guilty by his country. His life is, however, still under Bracton, fol. the protection of the law, and such outlawry may be frequently reversed by writ of error.

125.

may be re

Writs of certiorari may be had at any time before trial, to Indictment remove the indictment, and all proceedings thereon, from any moved by cerinferior court of criminal jurisdiction into the court of queen's tiorari. bench (6), the sovereign ordinary court of justice in criminal causes; and this is often done for one of these purposes; either 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 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 queen's bench, or before the justices of nisi prius;

(b) By 5 & 6 Wm. 4, c. 33, s. 1, no certiorari shall issue to remove any indictment or presentment into the queen's bench from any court of session, 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 queen's bench, or before some judge of that court, and leave obtained, in the same manner as similar motions might then be made, and leave given, where the application was made by the defendant. By s. 2, in extension of the powers of 5 & 6 Wm. & M. c. 11, instead of the recognizance then required to be entered into before the allowance of a writ of certiorari, every person indicted or presented in any court of session, assize, oyer and terminer, gaol delivery, or any other court, who shall obtain a writ of certiorari for removing any indictment or presentment whatever into the court of queen's bench, not being in custody for want of bail to answer such indictment or presentment, shall, before the allowance of such writ, enter into a recognizance before one of her majesty's justices of the court of queen's bench, or before a justice of the peace of the county or place in which the offence is charged to have been committed, or in which such person shall reside, in such sum, and with such sureties as the said court of queen's bench, or one of her majesty's justices of the said court, shall by indorsement on the said writ, order and direct, which recognizance shall contain the same conditions as were then required by the said act, 5 & 6 Wm. & M. c. 11, and 8 & 9 Wm. 3, c. 33; and the provisions of the said acts as to costs or otherwise, shall extend to such last mentioned recognizances; and every person being in custody for want of bail to answer the charge contained in such indictment or presentment, shall be detained in custody until the like recognizances shall have been entered into, or until such person be discharged by due course of law.

Q Q

2 Hal. P. C.

210.

or it is so removed, in order to plead the queen's pardon there; or to issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not reach him. Such writ of certiorari, when issued and delivered to the inferior court, supersedes its jurisdiction, and invalidates all subsequent proceedings therein; unless the court of queen'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; 2 Hawk. P. C. 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. 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; 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 to be there tried and determined.

487.

4 Burn. 749.

CHAPTER XXV.

Of arraign

ment.

2 Hal. P. C. 216.

Ibid. 219.

And its incidents.

OF ARRAIGNMENT AND ITS INCIDENTS.

WHEN the offender either appears voluntarily to an indictcriminal ment, or was before in custody, or is brought in upon process to answer it in the proper court, he is immediately to be arraigned thereon. This is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment. The prisoner is to be called to the bar by name, and desired to hold up his hand. Then the indictment is read to him distinctly, that he may fully understand his charge. After which it is demanded of him whether he be guilty of the crime whereof he stands indicted, or not guilty.

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. Regularly a prisoner is said to stand mute, when, being arraigned for treason, or felony, he either makes no answer at all: or

316.

answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise: or, upon having pleaded not guilty, he refuses to put himself upon the country. 2 Hal. P. C. If he says nothing, the court may ex officio empanel 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, are to proceed to the trial, and examine all points as if he had pleaded not guilty (a). The other incident to arraignment exclusive of the plea, is the prisoner's actual confession of the indictment; and upon a simple and plain confession, the court has nothing to do but to award judgment.

2 Hawk. P. C

227.

Confession, simple,

which is either

or by approve

ment.

It has been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or as it is generally termed king's evidence) against his fellows; upon an implied confidence which the judges have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is Rex v. Rudd, examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree (b).

Mich. 16 Geo. 3, on a case

reserved Bailey, Oct.

from the Old

1775.

(a) By 7 & 8 Geo. 4, c. 28, s. 1, if any person not having the privilege of peerage being arraigned upon any indictment for treason, felony, or piracy, shall plead "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. By s. 2, if any person being arraigned for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information, it shall be lawful for the court, if it 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. (b) The testimony of an accomplice becoming king's evidence is effectual only when confirmed by unimpeachable proof; Phillipps on Evid. 34. Mr. Christian observes here, (B. C. vol. 4, p. 330,) "in the case of Mrs. Rudd, in which this subject is clearly and ably explained by Lord Mansfield, and again by Mr. J. Aston, in delivering the opinion of all the judges (Cowp. p. 331), it is laid down that no authority is given to a justice of the peace to pardon an offender, and to tell him he shall be a witness at all events against others; but where the evidence appears insufficient to convict two or more without the testimony of one of them, the magistrate may encourage a hope that he who will behave fairly, and disclose the whole truth, and bring the others to justice, shall himself escape punishment. But this discretionary power exercised by the justices of the peace, is founded in practice only, and cannot control the authority of the court of gaol delivery, and exempt, at all events, the accomplice from being prosecuted. A motion is always made to the judge for leave to admit an accomplice to be a witness, and unless he should see some particular reason for a contrary conduct, he may prefer

CHAPTER XXVI.

The prisoner's pleas.

A plea to the jurisdiction.

2 Hal. P. C. 256.

A demurer to the indictment.

Plea in abatement.

Special pleas in bar.

OF PLEA AND ISSUE.

THE plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess, or stand mute, is either a plea to the jurisdiction; a demurrer; a plea in abatement; a special plea in bar; or the general issue.

A plea to the jurisdiction, is where an indictment is taken before a court that has no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions; in these, or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.

A demurrer to the indictment is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be.

A plea in abatement is principally for a misnomer, a wrong name or a false name to the prisoner. But such plea is now rendered nugatory by 7 Geo. 4, c. 64, s. 19 (a).

Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged, are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon (b).

the one to whom this encouragement has been given by the justice of the peace." And again, "the claim of the witness to mercy does not extend beyond those offences in which he has been connected with the prisoner, and concerning which he has previously undergone an examination; and with regard to those crimes, he may be cross-examined by the counsel for the prisoner, but of course he may refuse to criminate himself of other charges against which that prosecution affords him no protection."

(a) By 7 Geo. 4, c. 64, s. 19, no indictment or information shall be abated by reason of any dilatory plea of misnomer, or of want of addition, or of wrong addition of the party offering such plea, if the court shall be satisfied by affidavit, or otherwise, of the truth of such plea; but in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded.

(b) A plea of autrefois acquit cannot be pleaded unless the facts charged in the second indictment would, if true, have sustained the first. Rex v. Vandercomb, 2 East, P. C. 519.