CHAPTER XXII.

OF PROCESS,

1. On Indictment.

IN proceedings by way of indictment, the offender is often in custody, under the commitment of a magistrate or otherwise, before the indictment found. But in other cases it may happen that there has been no arrest or commitment before the indictment found. In such cases an indictment may be preferred and found against him in his absence; and it then becomes necessary to issue some writ or writs in order to bring him into court. Writs thus issued upon the indictment are called process-a name which does not apply to the warrant under which the party is arrested before the finding of the indictment, and the nature of which has been already considered; (vide sup. 239).--4 Bl. Com. 318; 1 Chitty Cr. Law, 337, 338.

In general the mode of bringing a defendant into court upon an indictment found against him for felony, is by writ of capias, which all courts having power to try the offence have also power to issue against the offender.-1 Chitty, Cr. Law, 339; 4 T. R. 521.

It is also the practice upon an indictment found for a misdemeanor during the assizes or sessions, to issue a bench warrant signed by a judge or two justices of the peace to apprehend the defendant; and so when the assizes or sessions are over, the clerk of assize and clerk of the peace respectively will, on application of the prosecutor, grant a certificate of the indictment being found, upon which a judge of the King's Bench or justice of the peace of the

proper county, will grant a warrant for apprehending the defendant.-Ibid. 340.

And by 48 Geo. III. c. 58, whenever any person shall be charged with any offence for which he may be prosecuted by indictment or information in his majesty's court of King's Bench, (not being treason or felony,) and the same shall be made appear to any judge of the same court by affidavit or certificate of an indictment or information being filed against such person in the said court for such offence, it shall be lawful for such judge to issue his warrant under his hand and seal, and thereby cause such person to be apprehended and brought before him or some other judge of the same court or before a justice of the peace, in order to his giving bail for appearance, to such amount as shall be expressed in the warrant, and in neglect thereof to commit such person for trial.

And by the same act, if a person committed by warrant or capias in that court, neglect to appear and plead to the indictment or information, (a copy of which is to be delivered eight days before he is required to appear and plead,) the prosecutor after notice may enter an appearance and plead not guilty for him, and such proceedings are to be thereupon had, as if the defendant had appeared and pleaded for himself.

In a proceeding by indictment, if the defendant cannot be found so as to be taken on capias or bench warrant, he may, on his non-appearance, be outlawed.

To effect an outlawry, it is necessary to go through several successive stages of process.

In cases of misdemeanor the first process towards outlawry is by venire facias, which is a summons to appear; and if the defendant makes default and the sheriff return that he has summoned him, a distringas is issued, and is repeated by alias distringas from time to time, whereby the defendant forfeits part of the issues of his land in every default. But if the sheriff return that he has no lands, or that he is not found, then upon his non-appearance a capias, and if nẹ

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cessary, an alias and pluries capias, issues to take his body. -4 Bl. C. 318; 1 Chit. Cr. Law, 350.

If these various proceedings prove ineffectual, then a writ of exigent is awarded, under which he is exacted at five successive county courts.-Ibid.

By 4 & 5 W. & M. c. 22, s. 4, upon the issuing of the exigent, a writ of proclamation shall also be issued, under which the defendant is to be openly proclaimed three times by the sheriff.

If the defendant does not appear nor is taken on or before the fifth county court, or day of exaction, under the writ of exigent, judgment of outlawry (or in case of a woman, judgment of waiver) is given.-1 Chitty, Cr. Law, 356.

Upon this a writ of capias utlagatum issues to take him into custody; upon which process any doors may be broken to apprehend the outlaw.-Ibid. 367.

In cases of felony the proceeding to outlawry is more summary, being by capias in the first instance instead of venire.-Ibid. 362.

In cases of misdemeanor an outlawry occasions a forfeiture of all the goods and chattels of the offender, the loss of the profits of all real estate, and restraint of liberty; besides which the outlaw is incapable of suing in any action for redress of injury, or of sitting as a juror or executing an office in a corporation, &c.-Ibid. 366.

In cases of felony, outlawry amounts to a conviction and attainder of the offence as much as if the defendant had been found guilty; and consequently the same forfeiture as to estates real and personal takes place as in the case of conviction and attainder, (as to which vide post,) and he is liable to have execution awarded against him without trial (unless the outlawry be reversed) whenever his body can be taken.-Ibid. 365.

An outlawry, however, may be avoided or reversed.

Such reversal is by plea or by writ of error, according to the nature of the case; but in the case of felony the de

fendant must for this purpose render himself into custody, and come in person to the bar of the court to pray to be allowed a writ of error.—Ibid. 369.

The defendant may assign various matters for error, e. g. that he was in prison, or went beyond seas on his own business, before the award of the exigent, or he may take any technical objection to the regularity of the process, and upon such errors, if established, the outlawry will be reversed. Ibid. 368.

Upon such reversal the party accused is permitted to plead to and defend himself against the indictment.-Ibid. 369.

In one instance, though the outlawry be regular, its consequences may be avoided: for by 5 & 6 Edw. VI. c. 11, (which permits outlawry for treason to be awarded against persons residing abroad,) if a person so outlawed shall, within one year, yield himself to the chief justice and offer to traverse the indictment, he shall be admitted so to do, and being acquitted of the indictment shall be discharged of the outlawry.

Outlawry does not lie against a parish, a corporation, or a hundred; nor against a peer, except for felony or breach of the peace; nor against an infant under fourteen, for felony. Ibid. 348; 2 Hale, P. C. 207.

2. On Information.

The first process is a writ of subpoena, and if the defendant does not appear on this, a capias is awarded.1 Chitty, Cr. Law, 866.

But if a corporation aggregate is defendant, the process is by distringas.—Ibid.

When the information is filed by the master of the crown office at the relation of a private person, the security to prosecute required by the 4 & 5 W. & M. c. 18, must. be given before process issues.-Ibid. 865.

Besides the process above described, the Court of King's Bench has the power of issuing bench warrants at once

to apprehend the party accused, as in the case of indictments, (vide sup. 273.)-Ibid. 866.

If the defendant cannot be found so as to be taken on capias or bench warrant, it may be necessary (as on an indictment) to proceed to outlawry. And the course of proceeding is the same as in outlawry on an indictment for misdemeanor; and the first process is, in that case, not by subpoena, but by venire facias.-Ibid.