Law of traverse c. 4. 3. OF TRAVERSE AND POSTPONEMENT OF TRIAL. Before the late Traverse Act, parties indicted for misdebefore 60 Geo.3. meanor, when they pleaded, were always at liberty to traverse the indictment, that is, to turn over or postpone its determination to the next sessions; and it was even doubted whether the sessions had power to proceed on an indictment against a party not in custody at the session when it was found. But the law on this subject has been entirely altered by 60 Geo. 3. c. 4. which, although it does not, in all cases, take away the right of traverse, has essentially narrowed it. This act recites that "great delays have occurred in the administration of justice, in cases of persons prosecuted for misdemeanors by indictment or information in his Majesty's Courts of King's Bench at Westminster and Dublin, and by indictment at the sessions of the peace, sessions of oyer and terminer, great sessions, and sessions of gaol delivery, in that part of Great Britain called England, and in Ireland respectively, by reason that the defendants in some of the said cases have, according to the present practice of such respective courts, an opportunity of postponing their trials to a distant period, by means of imparlances in the said several Courts of King's Bench, and by time being given to try in such respective courts of session;" and after making certain provisions with respect to prosecutions in the superior courts, proceeds to enact, "That where any person shall be prosecuted for any misdemeanor by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery within that part of Great Britain called England, or in Ireland, having been committed to custody, or held to bail to appear to answer for such offence twenty days at the least before the session at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session or session of gaol delivery respectively, unless a writ of certiorari for removing such indictment into his Majesty's Courts of King's Bench at Westminster or in Dublin respectively, shall be delivered at such session before the jury shall be sworn for such Certiorari may trial. (f) And such writ of certiorari may be applied for be issued before and issued before such indictment has been found, in the like cases, in the same manner, and upon the same terms Persons in cus tody for misde meanors, or held to bail, within 20 days before the sessions, shall plead to indictment, and the trial shall proceed at the same session. or after indictment is found. (f) Section 3. ments may be and conditions, as if such writ of certiorari had been In what cases applied for after such indictment had been found. (g) such indictAnd the same statute enacts, "That where any per- tried at subseson shall be prosecuted for any misdemeanor by indict- quent sessions. ment, at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery within that part of Great Britain called England, or in Ireland, not having been committed to custody or held to bail to appear to answer for such offence twenty days before the session at which such indictment shall be found, but who shall have been committed to custody or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found twenty days before such subsequent session, he or she shall plead to such indictment at such subsequent session, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session, or session of gaol delivery respectively, unless a writ of certiorari for removing such indictment, &c. shall be delivered at such last-mentioned session before the jury shall be sworn for such trial, any law or usage to the contrary notwithstanding." (h) county to be It is, however, provided, that nothing in this act con- Not to prevent tained shall extend, or be construed to extend to prevent indictments found by a grand any indictment, found by a grand jury of any city or town jury of any city corporate, from being removed, at the prayer of any de- or town from fendant, for trial by a jury of the county next adjoining to being removed the county of such city or town corporate, pursuant to the to an adjoining provisions of an act passed in the thirty-eighth year of his tried, 38 Geo. 3. present Majesty's reign, to regulate the trial of causes, in- c. 52. dictments, and other proceedings, which arise within the counties of certain cities and towns corporate within this kingdom; and upon such removal, the defendant shall plead, and the trial shall be had according to the provisions of this act, in like manner as if such indictment had been originally found by a grand jury of such next adjoining county. (i) shewn, allow And it is further provided, that it shall be lawful for the Court may, on Court, at any session of the peace, session of oyer and ter- sufficient cause miner, great session, or session of gaol delivery respec- further time for tively, upon sufficient cause shewn for that purpose, to pleading, &c. allow further time for pleading to any such indictment, or for trial of the same. (j) Who are de Under this act, therefore, all persons who have been in prived of the (g) Section 4. (2) Section 6. (h) Section 5. (j) Section 7. right to traverse. Who may still traverse. Proceedings where a party traverses. Form of recog custody, or are out on bail upon the same charge, for more than twenty days, are on the finding of the indictment, bound to plead and try instanter, like parties charged with felony. And where an indictment has been found at a former sessions, and the party has been afterwards taken, or bailed, or received notice of the indictment twenty days before the subsequent session, he is bound at such session to plead and try, unless a writ of certiorari first remove the proceedings. This act, however, does not apply to prosecutions for omitting to repair bridges or highways, which are subject to traverse as before the statute. With this exception, the right to traverse an indictment just found at the sessions is now confined to parties who have not been in custody, or out on bail twenty days, in respect of the charge; and the right to traverse an indictment previously found is confined to such as have not received twenty days' notice of the indictment pending against them. In these instances, the right remains; and it may be proper here to observe, that this right exists, although the party may have been twenty days in custody on a charge arising out of the same transaction, if the degree of the accusation is altered; as if he were committed for felony, and the bill be found for misdemeanor. This point arose in the case of the King v. Edward Gibbon Wakefield, at the Lancaster spring assizes, 1827. The defendant had been committed more than twenty days before the assizes for a felony; but, at the assizes, it was thought right to indict him jointly with others for a misdemeanor; and Mr. Justice Park, after much consideration, decided that he had a right to traverse. Where a party has a right to traverse, he must appear in court with his sureties. The clerk of the peace reads the indictment to him; he pleads not guilty; and his plea is recorded. He then gives to the clerk of the peace the names and additions of two responsible persons who are ready to be bound for him in recognizance that he shall appear and try at the ensuing sessions; and the prosecutor may, if he think fit, then examine the proposed sureties as to their sufficiency in point of estate. If they are unopposed or accepted, the recognizance of the defendant and his sureties is read over by the clerk of the peace to them in the following form: A. B. you acknowledge to owe to our Sovereign Lord the King nizance to try a the sum of and you C. D. and E. F. severally acknowledge to owe &c. the respective sums of and to be respectively levied of your goods and chattels, lands and tenements, to his traverse. Majesty's use, by way of recognizance, upon condition that you A. B. shall appear at the next session of the peace to be holden for this county, to try your traverse upon this indictment to which you have now pleaded not guilty, and not depart without leave of the court. To this the accused and the pledges answer that “ they are content," and depart the court. If the defendant is anxious to dispose of the charge, two days, at least, before a traverse for a misdemeanor is intended to be tried at a session of the peace,(k) he should cause the prosecutor to be served with a true copy of a notice, to the following effect: THE KING ON THE PROSECUTION OF Y. Z. v. A. B. Mr. Y. Z. Take notice, that I intend to appear at the next Notice. general quarter session of the peace, to be holden at in and for the county of on next, being the in day of by ten o'clock in the forenoon of the same day, and then and there to try my traverse upon the indictment which you have preferred against me for To Y. Z. A. B. Having thus seen what are the preparations made for Trial. the trial of a travere at, and after, the previous session, we return to the time of trial. The defendant must appear in court, at the bar, in his proper person, and the solicitor prepare an affidavit of the service of the above notice, in case the prosecutor do not appear, in the following form, or to the like effect: { O. P. of in the county aforesaid, gentleCounty of man, maketh oath and saith, that he did, on the day of instant (or as the fact is) personally serve the prosecutor in this case, Y. Z. with a true copy of the notice hereunto annexed, (1) at his house situate in (or as the fact was) and did at the same time inform the said Y. Z. of the contents and purport thereof. Sworn at the day of O. P. When the defendant is at the bar, the clerk of the peace reads the indictment to the jury, and then says,-" to which (k) Two days for the sessions of the peace, and eight for the assizes. (1) Had it not been for mistakes which have occurred within the knowledge of the compiler, he would scarcely have conceived it necessary to observe that, if the attorney do not serve this notice personally, the party who serves it for him must qualify himself, by inspection, to testify that the notice served was a true copy of that annexed to his affidavit. Prosecutor not appearing. to be found. indictment the defendant hath pleaded not guilty: your business, gentlemen, is to inquire whether he be guilty or not guilty, and hearken to your evidence." Then the crier. makes the usual proclamation; and if the prosecutor appears, the trial proceeds. If a prosecutor do not appear, according to the notice, the defendant is acquitted, the prosecutor being (by the crier) called to come and give evidence; then the Chairman addresses the jury to this effect," Gentlemen, A. B. stands indicted for making an assault upon Y. Z. (or as the offence is); no one appears to prove that he is guilty, and therefore you must acquit him;" and thereupon the jury being asked (by the clerk of the peace) "whether the defendant is guilty or not guilty," say, "not guilty." All this, however, proceeds upon the assumption that the prosecutor was found, and that the notice from the deProsecutor not fendant was actually served. But it sometimes happens that the prosecutor could not be found. In that case there must be an affidavit of the endeavour to serve him with the notice of trial, and that it was without effect, in such form, and disclosing such circumstances, as may induce the Court, upon motion, to respite the recognizances, and to put off the trial to the next session; making an order, at the same time, that a new notice, left at the last place of the prosecutor's abode, or at the office of the clerk of the peace, with certain conditions of publication or notification, as to the said court shall seem necessary, shall be good and sufficient. These terms, imposed by the Court, whatever they may be, having been complied with, the defendant must take out a venire, enter his traverse, and be prepared with affidavits of the order, and of the acts done in conformity with it, to be produced at the ensuing session; when, if the prosecutor again fail to appear, the jury will be sworn, and an acquittal directed. Although the defendant may have no right of traverse, or though his traverse has expired, yet the Court has always authority, on sufficient grounds, to postpone the trial either of felony or misdemeanor. This right is expressly reserved by the Traverse Act; and, therefore, it may be proper here to notice the manner in which its exercise may be obtained. The most common ground for extraordinary delay of trial is the absence of any material witness, which if properly and sufficiently stated and verified, will usually procure it. For what shall be deemed proper and sufficient |