day now past, all and singular indictments of whatever [felonies] CH. XX. whereof R. S. was indicted before you (as was said), with all things touching the same, by whatever name the said R. S. should be called therein, together with the said writ to you directed that we might further cause to be done thereon what of right and according to the law and custom of England we should see fit to be done. We do now, for certain reasons us thereunto specially moving, command you and every of you, that you do wholly supersede whatsoever is to be done concerning the execution of that our said writ, and that you proceed to the determination of the said indictment against the said said R. S. for the said offence, with that expedition which to you shall seem right and according to the law and custom aforesaid, notwithstanding our writ as before sent to you directed for the purpose aforesaid. Witness, Sir Alexander James Edmund Cockburn, Baronet, this

in the

year of our reign.

day of

By the Court.

PART V.

PART V.

PROCEEDINGS BEFORE GRAND JURY AND AT
TRIAL-HEREIN OF SENTENCES AND COSTS.

Special plea in bar

CHAPTER XXI.

PROCEEDINGS BEFORE GRAND JURY AND AT TRIAL.

Within what time indictment to be preferred
Grand jury-proceedings before them

Proceedings after true bill found-arrest of accused
Outlawry

When and where indictment tried

Autrefois acquit

p. 124.

Autrefois convict

p. 125.

Autrefois attaint

p. 127.

p. 127.

p. 127.

p. 128.

p. 128.

p. 132.

p. 132.

p. 133.

p. 133.

p. 134.

p.136. p. 137.

p. 137.

THE following observations apply to a trial at the assizes; but for the most part they apply to a trial at the Quarter Sessions or Central Criminal Court.

must be

We have made observations, ante, p. 83, et seq., as to the Within form of the indictment. The indictment may be preferred what time at any length of time after the offence was committed unless indictment the time for so doing be limited by statute. A prosecution preferred. for night poaching, under the 9 Geo. 4, c. 69, must be commenced within 12 calendar months after the commission of the offence. As to what is the commencement of such a prosecution, see 1 Russ. p. 626.

In ordinary cases upon furnishing the proper officer with Grand the particulars of the offence he will draw the indictment; jury and but in special cases it should be drawn by counsel. It must proceedbe engrossed on parchment and indorsed with the names of ings before the witnesses intended to be examined before the grand jury. The bill of indictment has to be presented to and found by a grand jury (a) of the county, &c., where the venue is laid.

(a) In Hale's Pleas of the Crown, it is stated, so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the King of any capital offence, unless by the unanimous voice of 24 of his equals and neighbours: that is, by 12 at least of the grand jury, in the first place, assenting to the accusation; and afterwards, by the whole petit jury, of 12 more, finding him guilty, upon his trial. At the present day in cases tried at the Quarter Sessions and in most cases tried at the assizes the intervention of the grand jury seems useless. At present there is in almost all cases, before trial, a preliminary investigation before magistrates in the presence of the accused-this seems to be a sufficient guarantee that a person shall not be improperly put on his trial-but now, besides such investigation, after the accused has been committed to take his trial another investigation performed often, per

them.

PART V. The number of persons on the grand jury cannot be more than 23, nor less than 12. (2 Burr. 1088.) There must be 12 at least as the concurrence of that number is absolutely necessary in order to put the accused on his trial, and there must not be more than 23 because otherwise there might be an equal division, or 2 full juries might differ in opinion. The grand jury are charged by the judge presiding in court, and, when thought necessary by him, instructed as to the performance of their duties. By 19 & 20 Vict. c. 54, ss. 1, 3, the foreman of the grand jury, or person acting on his behalf in the examination of the witnesses, may administer the oath (a) or affirmation to them, and should write his initials on the back of the indictment against the name of each witness sworn and examined. The witnesses whose names are on the back of the indictment, or such of them as the grand jury think necessary, are examined by the grand jury; and if the offence appears, to a majority of them (consisting of 12 at least), to be sufficiently proved, the clerk of the grand jury will indorse on the indictment, "true bill"; but if the majority should be of opinion that the offence has not been sufficiently proved, the words "no true bill," are indorsed on the indictment. The foreman then accompanied by some of the other grand jurors, carries the indictment so indorsed into court, and delivers it to the proper officer, who thereupon states to the court the substance of it, and the indorsement upon it. An indictment is not so called, until it has been found a "true bill" by the grand jury; before that time it is called a bill merely. The grand jury may require the same evidence as may be necessary to support the indictment at the trial; but they are not in general very strict in this respect. The grand jury may find a true bill as to one count

haps, in a very perfunctory manner, in the absence of the accused, takes place just before the trial. This is very little protection, if any, to accused persons and sometimes defeats justice. In all cases it might be made a condition precedent to a trial that there should be a preliminary investigation before magistrates, and a committal for trial by them or the prosecutor bound over to prosecute. In order to get a sufficient number of jurors to serve on the grand jury a great many persons have to be summoned, and sometimes when they attend they have nothing or next to nothing to do. This causes great unnecessary inconvenience to persons summoned.

(a) It has been held that when the grand jury have found a bill, the judge before whom the case comes on to be tried ought not to inquire whether the witnesses were properly sworn before they went before the grand jury; and it seems that an improper mode of swearing them will not vitiate the indictment, as the grand jury are at liberty to find a bill upon their own knowledge merely. (Reg. v. Russell, C. & Mars. 247.)

and no true bill as to another count: but they cannot find a Ca. XXI. true bill as to part of a count and no true bill as to the remainder of the same count. (R. v. Fieldhouse, Cowp. 325.) As to the practice where a person is indicted for murder and the grand jury find a true bill for manslaughter only, see 1 Russ. on Crimes, 796. The fact of the bill having been thrown out by one grand jury does not prevent it being preferred and found by another

If the defendant, against whom an indictment is found, be Proceedpresent in court, or in the custody of the court, he may at ings after once be arraigned upon the indictment, without any previous foundprocess. (2 Hawk. c. 27.)

true bill

Arrest of

Any court before which an indictment is found may forth- accused. with issue a bench warrant for arresting the party charged, and bringing him before such court, to answer such indictment. If issued during the assizes, it is signed by a judge; if at sessions, by 2 justices of the peace. When a prosecutor applies for a bench warrant at the Central Criminal Court, a recognizance to prosecute the law with effect against the defendant is required. (Reg. Gen., Jan., 1847; Car. & M. 254.) When defendant is in the custody of another court he may be brought up by habeas corpus to plead. By 30 & 31 Vict. c. 35, s. 10, where recognizances have been entered into for the appearance of any person to take his trial for any offence, and a bill of indictment is found against him, and he is in the prison of the court, under warrant of commitment, or under sentence for some other offence, the court, by order in writing, may direct the governor of the prison to bring up such person in order that he may be arraigned upon the indictment.

By 11 & 12 Vict. c. 42, s. 3, where any indictment is found by the grand jury against any defendant who is at large, the clerk of the indictments or clerk of the peace must, if the defendant has not appeared and pleaded to the indictment, at any time after the end of the sessions of oyer and terminer or gaol delivery, or sessions of the peace at which such indictment is found, upon application of the prosecutor, or of any person on his behalf, and on payment of a fee of 1s., grant a certificate of such indictment having been found; and upon the production of such certificate any justice or justices of the peace for any county, &c., in which the offence is in such indictment alleged to have been committed, or in which the defendant resides or is, or is supposed or suspected to reside or be, must issue a warrant to apprehend the defendant, and to cause him to be brought before any justice or justices for the same county, &c., to be dealt with accord