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corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security.
When after a conviction the owner is entitled to restitution, he may take his goods wherever he can find them, without any writ or order for restitution, so that it be effected without breach of the peace.—1 Chitty, Cr. Law, 820.
And he is entitled to restitution of his goods, though since they were stolen, they should have been sold in market overt to an innocent purchaser.—1 Chitty, Cr. Law. 819.
But until conviction the right of recaption of things stolen, and the right of action for them, are suspended.-- Ibid. 821.
Upon conviction for any felony, the personal property of every description, of the offender, which he has at the time of the conviction, are immediately forfeited to the crown.1 Chitty, Cr. Law, 730, 732; 4 Bl. Com. 387.
But before conviction, he may bonâ fide sell any of his chattels real or personal, for the sustenance of himself and family, between the fact and conviction.—4 Bl. Com. 388.
Yet if they be collusively and not bonâ fide parted with, and merely to defraud the crown, the law will reach them. See 13 Eliz. c. 5.—Ibid.
Upon conviction for misprision of treason the profits of the lands of the offender during life, and also his goods and chattels, are forfeited.—Vide supra, p. 37.
In prosecutions in the King's Bench for misdemeanors if a verdict of guilty has been given, contrary to the evidence, and not to the satisfaction of the judge who tried the case, the Court will, on the motion of the defendant, grant a new trial.—1 Chitty, Cr. Law, 654.
And there are many other grounds on which after such verdict a new trial will be granted, at the instance of the defendant, to promote the purposes of justice.—Ibid. 655.
But a new trial will not be granted at the instance of the prosecutor, though the defendant has been acquitted contrary to the evidence-unless the verdict should appear to have been obtained by some fraudulent or irregular proceeding on the part of the defendant.Ibid. 657; 4 BI. C. 361.
And no new trial can be granted in any case of felony; but if the conviction appears to the Court to be improper, the execution is respited to enable the defendant to apply for a pardon.—1 Chitty, Cr. Law, 654; 6 T. R. 638.
OF JUDGMENT AND ITS CONSEQUENCES.
The Court of King's Bench may give judgment in every case, whether the indictments were originally found there or removed by certiorari from any inferior tribunal.-2 Hale, 401; 4 Mau. & Selw. 71.
By 14 Hen. VI. c. 1, justices of nisi prius are empowered in cases of felony and treason, to pass sentence on a prisoner convicted before them; or they may return the postea, together with the criminal, into the Court above, if they think proper.—1 Ch. Cr. Law, 697.
By 11 Hen. VI. c. 6, and 1 Edw. VI. c. 7, justices of oyer and terminer, gaol delivery, and of the peace, have power to give judgment by virtue of their respective commissions; and this, even though the trial was before former commissioners.-Ibid.
If an inferior Court do not give judgment, the King's Bench may issue a mandamus.—7 T. R. 467.
By 11 Geo. IV. and 1 Will. IV. c. 70, s. 9, upon all trials for felonies or misdemeanors upon any record of the King's Bench, judgment may be pronounced during the sittings or assizes by the judge before whom the verdict was taken—(except only in cases of information filed by leave of the King's Bench, or in cases of information filed by the attorney-general, where he prays that the judgment may be postponed,) and the judge may either order an immediate commitment in execution, or may respite the execution until the sixth day of the next term.
No corporal punishment can in any case be awarded against a defendant, unless he be personally present. He may be fined in his absence-but to mitigate a fine, he must appear in person.—2 Hawk. c. 48, s. 17; 4 B. & C. 329. After conviction, if the defendant is not in custody, a capias is awarded against him to bring him in to receive judgment; and if he absconds, he may be prosecuted to outlawry.—4 Bl. C. 375.
In case of a conviction for a misdemeanor, where judgment is given in the King's Bench, if the defendant be present, he will be committed until judgment shall be passed against him; unless the prosecutor will consent to his liberation on his recognizance to appear and receive judgment.--1 East, 159.
Upon conviction where judgment is given in the King's Bench, whether for a capital felony or otherwise, the prosecutor enters a four-day rule for judgment; and in that interval he brings the postea into Court, to enable the judges to pass sentence.—2 Hawk. c. 48, s. 1.
At any time between the conviction and the judgment, either in case of felony or misdemeanor, the defendant may move the Court in arrest of judgment.
And to give him an opportunity of doing this, he must in capital offences, be asked after conviction, and before judgment, what he has to say why judgment of death should not be pronounced against him. And it must appear on the record that this question was put.-Com. Dig. Indict. (N.)
The grounds for a motion in arrest of judgment are objections arising upon the face of the record itself.4 Burr. 2287.
No defect in evidence, or other objection to the proceedings not apparent on the record, can be urged in this shape -4 Burr. 2287; Com. Dig. Indict. (N.)
But a motion in arrest of judgment may be grounded on a defect apparent in any part of the record, and not merely such as occur in the indictment itself.—1 Chit. Cr. L. 662.
By 7 Geo. IV. c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for
the omission of the words, “ as appears by the record;" or of the words, “ with force and arms;" or of the words, “ against the peace;" nor for the insertion of the words “ against the form of the statute," instead of the words “ against the form of the statutes," or vice versâ; nor for that any person or persons mentioned in the indictment or information, is or are designated by a name of office or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the Court shall appear by the indictment or information to have had jurisdiction over the offence.
And by sect. 21, no judgment after verdict, upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer upon ah insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.
A pardon may be also pleaded in arrest of judgment, and it has the same advantage when so pleaded, as when pleaded on arraignment. (Vide sup. p. 260.)
The defendant must be personally before the Court, to move in arrest of judgment.--Com. Dig. Indict. (N.)