CHAPTER XXIII.

OF CERTIORARI.

FROM any inferior court of criminal jurisdiction, an indictment, with all the proceedings thereon, may be removed by a writ of certiorari facias into the Court of King's Bench. -4 Bl. C. 320.

Certiorari lies from the Court of King's Bench to justices, even in cases where they are empowered finally to hear and determine, unless the writ be taken away by the express words of a statute.-2 Hawk. c. 27, s. 22, 23; Cowp. 524. This writ is awarded by the Court of King's Bench, and the objects of the removal are—

To consider and determine in the King's Bench the validity of the indictment and proceedings, and quash or confirm them, as there may be cause; to have a trial at bar or at nisi prius (according to the course of all indictments and informations in the King's Bench) in cases where it is surmised that a partial or insufficient trial would probably be had in the court below; to plead the king's pardon in the court of King's Bench; or to issue process of outlawry against the offender in those places which cannot be reached by the process of the court below.-4 Bl. C. 320.

This course is also sometimes adopted for other reasons. Thus it is sometimes adopted in cases of misdemeanor for the sake of obtaining a trial by special jury; which cannot be had in the inferior jurisdiction.-1 Chitty, Cr. Law, 372, 522.

So it may be desirable for the defendant to obtain a certiorari, where he is indicted at the assizes for a nuisance, in order that a view may be had of the premises,—a proceeding which cannot take place under the authority of the inferior jurisdiction without the prosecutor's consent.Ibid. 373.

A certiorari is granted at the instance either of the prosecutor or the defendant.

Where applied for by the Attorney General or other officer of the crown, either as prosecutor, or when he takes up the defence of the party indicted, on account of the latter being an officer of the crown, or for some other reason, the writ must issue as a matter of course, and the court has no discretion.-1 Chitty, Cr. Law, 378.

When a certiorari is applied for by a private prosecutor, the court has a discretion; yet it usually grants the writ as of course, even from high courts of criminal jurisdiction, such as the Old Bailey.—Ibid.

When applied for by a defendant, the court has a discretion; and will never grant it unless he show strong reason for the removal.-Ibid.

In practice it is generally not granted at the instance of the defendant, to remove indictments from the justices of assize or gaol delivery, or the Old Bailey, unless the consent of the prosecutor be obtained.-Ibid. 379.

The proper time for either party to apply, is after indictment found, and before issue has been joined upon it. And in practice it is seldom granted after conviction, unless for special cause, such as that no remedy is to be had by writ of error; but it seems that, strictly speaking, a certiorari may be granted at any time before judgment is given; and even afterwards, where a writ of error does not lie.—Ibid. 380; and 4 Bl. C. 320, n. (b), by Ryland.

Besides this the ordinary kind of certiorari, a writ of certiorari also lies to remove an indictment found against a peer, out of the King's Bench or any other court, into the Court of Parliament, or the Court of the Lord High Steward, that the defendant may claim his privilege of being tried by his peers. (Vide sup. p. 221.)

A certiorari when granted and issued and delivered to the inferior court, makes all subsequent proceedings there erroneous, unless the Court of King's Bench remands the record.1 Chitty, Cr. Law, 390; 4 Bl. C. 321, n. 9, by Ryland.

CHAPTER XXIV.

OF ARRAIGNMENT.

WHEN an indictment is found for felony, the prisoner is put to the bar of the court, to answer the matter charged upon him in the indictment. He is then said to be arraigned.-4 Bl. C. 322.

A defendant indicted of felony must, in all cases, appear personally in court, and be arraigned; but this does not apply to misdemeanors.-1 Chitty, Cr. Law, 414, 532; 4 Bl. C. 375.

In indictment and information for misdemeanor in the King's Bench, the defendant must, before plea, enter an appearance, and the appearance may be by attorney.1 Chitty, Cr. Law, 411. (Vide sup. 273.)

Upon arraignment, the defendant should be arraigned by name, and required to hold up his hand; but the latter ceremony is not indispensable, and in case of a peer it is not observed. Ibid. 414, 415.

The indictment should then be read to him, and he should be asked whether he is guilty or not guilty.—Ibid. The following incidents may then take place:

1. Upon the arraignment it may happen that the prisoner stands mute, that is, he may either make no answer at all, or answer foreign to the purpose, or matter not allowable.— 4 Bl. C. 324.

By 7 & 8 Geo. IV. c. 28, s. 2, if any person being arraigned upon or charged with any indictment or information for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information, 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 force and effect as if such person had actually pleaded the same.

But if a doubt arises whether the prisoner is mute of malice, and whether the refusal to plead does not really proceed from inability, the court, instead of ordering a plea to be entered at once, will (as before the statute) impannel a jury to try whether he stands obstinately mute or whether he is dumb ex visitatione Dei.-4 Bl. C. 324, n. (5), by Ryland.

This jury may be any twelve persons who may happen to be present.-1 Chitty, Cr. Law, 424.

Upon such issue the prisoner's counsel is allowed to address the jury.-Ibid.

If upon an issue whether obstinately mute, or dumb ex visitatione Dei, the latter is found by the jury, the court will use means to make the prisoner understand the arraignment and convey his answer; but if this be impossible, will direct a plea of not guilty to be entered and the trial to proceed. In such cases it is the duty of the court to examine all the points for him on the trial as counsel for the prisoner, to see that he hath law and justice.-4 Bl. C. 325; 1 Chitty, Cr. Law, 424.

But if convicted, it seems that in such cases judgment even of death, may lawfully be pronounced.-1 Chitty, Cr. Law, 425.

When the party indicted is deaf and dumb, he may, if he understand the use of signs, be arraigned, and the meaning of the clerk who addresses him conveyed to him by signs, and his signs, in reply, explained to the court.-1 Chitty, Cr. Law, 417.

In the case of insanity, it is provided, by 39 & 40 Geo. III. c. 94, s. 2, that insane persons indicted for any offence and found to be insane by a jury impannelled on their arraignment, shall be ordered by the court to be kept in custody till his Majesty's pleasure be known. (Et vide sup. p. 4.)

2. It may also happen that upon arraignment the prisoner confesses the indictment; and in this case, if he merely confesses, the court has nothing to do but to record the confession and award judgment; but it is usually very backward in receiving and recording such confession in capital cases, and will generally advise the prisoner to retract it and plead to the indictment.-4 Bl. C. 329.

But there is a kind of confession called approvement. That is, where a person indicted of felony, and arraigned for the same, confesses the fact before plea pleaded, and accuses others as his accomplices of the same crime, in order to obtain his pardon. The approvement (which can only be in capital cases) is considered as a sort of indictment; and the accused or appellee must go to trial upon it, and if found guilty, must suffer the judgment of the law; and if acquitted, the approver, on the other hand, must suffer the judgment of the law as upon his own confession. But it is in the discretion of the court whether it will allow an approvement or not; and in practice the proceeding has been long disused.--4 Bl. C. 330; 1 Chitty, Cr. Law, 602.

It has been usual, however, for the justices of the peace before 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 called, king's evidence,) against his fellows, upon an implied confidence, which the judges of gaol delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and all other felonies in which they have been concerned together, and to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for any offence in respect to which he has thus made disclosure.-4 Bl. C. 331, and note by Chr.

But he has no claim to pardon with respect to other offences in which he was not concerned with the prisoners. -Ibid. n. (13), by Ryland.