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by the principal and at least two sureties, conditioned that he shall appear at the trial to answer the charge.—Chitty's Cr. Law, 99, 103.
This recognizance must be certified to the court where the trial is to take place.—Ibid. 104. Vide sup. 250.
The Court of King's Bench, or in time of vacation, any judge thereof, may bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstances of the case.—4 Bl. C. 299.
But it is in discretion of the court, and not de jure.
And it is not usual for this court to bail in cases of felony, unless when, in consequence of the defect of the commitment, and of the examination and depositions, it appears doubtful whether any offence has been committed. -1 Chitty's Cr. Law, 98.
Upon putting in bail, where bail is allowed, the defendant is discharged; being supposed in law to be delivered to his sureties, and to remain in their custody, instead of going to gaol.-1 Chitty's Cr. Law, 104.
In case of commitment, the offender is sent to the county gaol by the warrant of the justice, under his hand and seal, (called his mittimus,) containing the cause of the commitment, there to abide till delivered by due course of law.4 BI. C. 300.
When imprisoned, he is not to be subjected to any unnecessary restraint or hardship before trial.-Ibid.
OF THE SEVERAL MODES OF PROSECUTION.
The prosecution of an offender is in general, by presentment or by indictment.
1. By Presentment. A presentment is the charge or accusation of an inquest, that is, a jury assembled to inquire of offences committed within their jurisdiction.
One species of presentment is that made by the jury of the tourn or leet, of such petty offences as they inquire into in those courts. (Vide sup. 228.)-4 Bl. C. 301.
Another species of presentment is that made by a jury summoned by the proper officer, to inquire, in some particular case, of matters affecting the rights of the crown, such as felo de se, deodands, violent or sudden deaths.-Ibid.
This last kind of presentment is usually called an inquisition of office.
Some few of these inquisitions of office are in themselves convictions, and cannot afterwards be traversed or denied. 2 Hale, P. C. 153.
But generally inquisitions of office may be traversed or denied, and the offender must be arraigned upon them for that purpose.—Ibid. 155.
Another kind of presentment is that made by a grand jury.
A grand jury is thus constituted. The sheriff in every county is bound to return for grand jurors to every session of the peace, and every commission of oyer and terminer and general gaol delivery, (as to which vide sup. 225,)
good and lawful men of the county to the number of twentyfour at least, some out of every hundred, to inquire of all offences, generally, committed within the county.--4 Bl. C. 302.
With respect to the county of Middlesex in particular, (as the county in which the Court of King's Bench is holden,) offences committed within that county may be tried, not only at the sessions of the peace or commission of oyer and terminer, but (at the option of the prosecutor) in the Court of King's Bench also. Accordingly the sheriff is bound in every term to make a like return of grand jurors into that court, and for the like purpose, as above stated with respect to the sessions of the peace, &c.—1 Chitty's Cr. Law, 157.
At the sessions of the peace, the persons returned as grand jurors are by 6 Geo. IV. c. 50, s. 1, required to be qualified in such manner as by that act provided.
Under commissions of oyer and terminer and general gaol delivery, the persons returned for grand jurors ought to be freeholders, but to what amount is not defined by law, except in the counties of Lancaster and York, in the former of which £5 per annum is the qualification, and in the latter £80 per annum.-1 Chitty’s Cr. Law, 308.
Grand jurors must also be inhabitants of the county, and are usually gentlemen of the best figure in the county.Ibid. s. 309.
If improper persons are discovered to be inserted in the panel returned by the sheriff, justices of gaol delivery at the assizes have power to reform the panel by taking out their names and inserting those of others.--Ibid. 310.
Of the grand jurors who appear in court upon their summons, twelve at least are sworn as a grand jury, and not more than twenty-three; so that twelve may be a majority. -4 Bl. C. 302.
They are instructed in the articles of their inquiry by a charge from the judge who presides in the court, and they then withdraw to the discharge of their duty in a place set apart for them near the court.-Ibid. 303.
In the discharge of this duty they sometimes make presentment (that is, prefer a charge on their own knowledge and observation) of some offence committed within the county, such as a nuisance, or the like.—1 Chitty's Cr. Law, 163.
Upon such presentment, after it has been delivered into court by the grand jury, the officer of the court must frame an indictment, before the party presented can be put to answer.-4 Bl. C. 301; 1 Chitty's Cr. Law, 163.
II. By Indictment. An indictment is an accusation in writing, presented upon oath by a grand jury, and charging some one or more persons with a crime.-4 Bl. C. 302; 1 Chitty's Cr. Law, 168.
The course of prosecution by indictment is as follows:
An accusation is laid by some prosecutor before the grand jury, after being sworn and charged as above described. (Vide sup. 254.) For this purpose it is reduced to writing, and drawn up in the shape of a presentment, ready to be delivered into court by the grand jury, upon their oath. In this state it is called a bill.—1 Chitty's Cr. Law, 163,
As a bill of indictment may be thus preferred either before a grand jury returned to the sessions or assizes, or (in case of offences committed in Middlesex) before a grand jury returned into the Court of King's Bench, so in those cases respectively the proceeding is said to be a prosecution at the sessions or assizes, or a prosecution in the Court of King's Bench.
The bill of indictment is supported by evidence called before the grand jury by the prosecutor; but they do not hear evidence on behalf of the party accused; the intention of the proceeding not being to try the offender, but merely to determine whether there is ground enough to put him on his trial.-1 Chitty's Cr. Law, 317.
If the grand jury are of opinion upon the evidence, that the party accused is guilty of the offence charged, they indorse upon the bill of indictment, a true bill. The indictment is then said to be found, and the party stands indicted. But if upon the evidence they think the accusation groundless, they indorse not found, or not a true bill; and the party is discharged.—1 Chitty's Cr. Law, 324.
To find a bill, twelve at least of the jury must agree.Ibid. 322.
A grand jury ought not to find a bill unless thoroughly persuaded of the truth of the charge, as far as their evidence goes, and they ought not to rest satisfied with merely remote probabilities.—4 Bl. C. 303.
The grand jury cannot find one part of the same charge to be true and another false, but must either maintain or reject the whole; they may, however, return a true bill upon one count out of several.-1 Chitty's Cr. Law, 323, 324.
And an indictment against several persons may be found against one or more of them, and rejected as to the rest.Ibid.
The bill of indictment when so “ found,” or “ not found," must be delivered publicly into court.—Ibid. 324.
Indictments must be in a precise and certain form.4 Bl. C. 306.
1. There must be a proper and sufficient venue; that is, the indictment must allege some place, as the place where the offence was committed.
There should be a venue in the margin of the indictment; and a venue also to every material fact alleged in the body of the indictment.—1 Chitty's Cr. Law, 194, 196.
The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus, and cannot therefore inquire of a fact done out of it, unless particularly enabled to do so in the particular case by act of parliament, as an exception to the general rule. From this it follows that the venue (or place where the offence is alleged in the indictment to have been committed) must in general be a place within the body of the county for which the grand jury are summoned.—4 Bl. C. 303; 1 Chitty's Cr. Law, 177, 190.