such accused party shall, before he enter into such recognizance, choose and consent to take his trial at such first assizes or sessions, in which case the recognizance may be in the ordinary form herein-before mentioned. NOTE. But Justices of the peace cannot admit to bail for treason. they may, in their discretion, admit to bail in all cases of felony, and in the following misdemeanors :-Assault with intent to commit a felony,-assault in pursuance of a conspiracy to raise wages,-assault upon a peace officer in the execution of his duty, or upon any person acting in his aid,-attempt to commit felony,-breach or neglect of duty as a peace officer,concealing the birth of a child,-false pretences, obtaining money, &c. by,-indecent exposure of the person,-perjury or subornation of perjury,―receiving property stolen or obtained by false pretences, where the offence is a misdemeanor,—and riot. In all other cases of misdemeanor, the justices must take bail, if sufficient sureties be tendered. The accused may be admitted to bail by the examining magistrate, immediately after the examinations have been taken. Or if he be committed to prison, he may at any time afterwards and before the first day of the sitting or session at which he is to be tried, be admitted to bail by the justice who signed his warrant of commitment. Also, where the offender is committed for felony, or for any of the misdemeanors above specified, and the committing justice thinks that it is a case in which he ought to be admitted to bail, although his sureties be not then forthcoming, the justice may in his discretion, and in all other cases of misdemeanor he must, certify (S. 3) on the back of the commitment his consent to the party's being admitted to bail, and stating the amount of bail that ought to be required; in which case any justice of the peace attending at the gaol, on production of the certificate, may admit him to bail, and order him to be discharged. In some cases, however, it may be inconvenient for the sureties to attend at the prison for the purpose of bailing the prisoner; then, on getting a copy of the commitment and indorsement from the gaoler, and presenting it to the committing magistrate, he will give you a duplicate of the certificate (S. 4) on a separate paper, and on that being taken to any other magistrate of the county, &c., he will take the recognizance of the bail; and this being transmitted to the gaoler, then any justice of the peace, attending or being at the prison, will take the recognizance of the prisoner, and order him to be discharged. And in these cases, where a prisoner is admitted to bail by a magistrate other than the committing justice, such magistrate shall forthwith transmit the recognizance of bail to the committing magistrate, and he shall transmit it together with the depositions to the proper officer. The bail is taken, by stating verbally to the prisoner and his sureties the substance of the recognizance, in the second person, thus: You A. B. of ——, and you L. M. of and you N. O. of- severally acknowledge yourselves to owe to our sovereign lady the Queen the several sums following, that is to say, You the said A. B. the sum of &c. &c.; and then stating the condition, but in the second person. recognizance (S. 1) is afterwards drawn up in form; and at the time of entering into it, a note of it (S. 2) is given to the accused and his sureties. If in cases of misdemeanor the accused will be entitled to a traverse, (see 2 Arch. J.P.) the recognizance should be drawn up accordingly. Vide infra. (S. 1.) Recognizance of Bail. Be it remembered, that on the - day of· A. B. of The in the year of our Lord labourer, L. M. of · grocer, and N. O. of butcher, personally came before [us] the undersigned, two of her Majesty's justices of the peace for the said [county], and severally acknowledged themselves to owe to our lady the Queen the several sums following; (that is to say,) the said A. B. the sum of and the said L. M. and N. O. the sum of each, of good and lawful money of Great Britain, to be made and levied of their several goods and chattels, lands and tenements respectively, to the use of our said lady the Queen, her heirs and successors, if he the said A. B. fail in the condition indorsed. Taken and acknowledged, the day and year first above mentioned, at before us, Condition in ordinary Cases. J. S. J. N. The condition of the within written recognizance is such, that whereas the said A. B. was this day charged before [us], the justices within mentioned, for that [&c., as in the warrant]; if therefore the said A. B. will appear at the next court of oyer and terminer and general gaol delivery [or court of general quarter sessions of the peace] to be holden in and for the county of and there surrender himself into the custody of the keeper of the [common gaol] there, and plead to such indictment as may be found against him by the grand jury, for or in respect of the charge aforesaid, and take his trial upon the same, and not depart the said court without leave,—then the said recognizance to be void, or else to stand in full force and virtue. Condition where the Defendant is entitled to a Traverse. The condition of the within written recognizance is such, that whereas the said A. B. was this day charged before [me], the justice within mentioned, for that [&c., as in the warrant or summons]; if therefore the said A. B. will appear at the next court of general quarter sessions of the peace [or court of oyer and terminer and general gaol delivery] to be holden in and for the county of · — and there plead to such indictment as may be found against him by the grand jury, for or in respect of the charge aforesaid, and shall afterwards at the then next court of general quarter sessions of the peace [or court of oyer and terminer and general gaol delivery] surrender himself into the custody of the keeper of the [house of correction] there, and take his trial upon the said indictment, and not depart the said court without leave, then the said recognizance to be void, or else to stand in full force and virtue. (S. 2.) Notice of the said Recognizance to be given to the Accused and his Bail. Take notice, that you A. B. of are bound in the sum of and your [sureties L. M. and N. O.] in the sum of· each, that you A. B. appear, &c. [as in the condition of the recognizance], and not depart the said court without leave; and unless you the said A. B. personally appear and plead, and take your trial accordingly, the recognizance entered into by you and your sureties shall be forthwith levied on you and them. Dated this day of 185-. J. S. (S. 3.) Certificate of Consent to Bail by the committing Justice, indorsed on the Commitment. I hereby certify, that I consent to the within named A. B. being bailed by recognizance, himself in and [two] sure committed by me to the [house of correction] at ——, charged with [&c., naming the offence shortly]: I hereby certify, that I consent to the said A. B. being bailed by recognizance, himself in -- and [two] sureties in each. Dated the day of 185-. J. S. XXIV. And be it enacted, that in all cases where a warrant of deliverance justice or justices of the peace shall admit to bail any on bail being person, who shall then be in any prison, charged with the given for a prisoner after commitment. 157. offence for which he shall be so admitted to bail, such justice or justices shall send to or cause to be lodged 1 J. P. 156, with the keeper of such prison, a warrant of deliverance (S. 5) under his or their hand and seal or hands and seals, requiring the said keeper to discharge the person so admitted to bail, if he be detained for no other offence; and upon such warrant of deliverance being delivered to or lodged with such keeper, he shall forthwith obey the same. Infra. Discharge or 1 J. P. 298. NOTE. This is the authority to the gaoler to discharge the prisoner; if he were to discharge him without it, he would be guilty of an escape, although bail had been regularly put in for the prisoner, and their and his recognizances duly taken. FORM. (S. 5.) Warrant of Deliverance, on Bail being given for a Prisoner already committed. To the keeper of the [house of correction] at said [county] of· in the Whereas A. B. late of- labourer, hath before [us, two] of her Majesty's justices of the peace in and for the said county, entered into his own recognizance, and found sufficient sureties for his appearance at the next court of oyer and terminer and general gaol delivery [or court of general quarter sessions of the peace] to be holden in and for the county of to answer our sovereign lady the Queen, for that [&c., as in the commitment], for which he was taken and committed to your said [house of correction]: these are therefore to command you, in her said Majesty's name, that if the said A. B. do remain in your custody in the said [house of correction] for the said cause, and for no other, you shall forthwith suffer him to go at large. Given under our hands and seals, this said. day of [county] aforeJ. S. (L. S.) J. N. (L. S.) XXV. And be it enacted, that when all the evidence commitment. offered upon the part of the prosecution against the accused party shall have been heard, if the justice or justices of the peace then present shall be of opinion that it is not sufficient to put such accused party upon his trial for any indictable offence, such justice or jus 1 J. P. 298. tices shall forthwith order such accused party, if in custody, to be discharged as to the information then under inquiry; but if, in the opinion of such justice or justices, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise a strong or probable presumption of the guilt of such accused party, then such justice or justices shall, by his or their warrant (T. 1), commit him 1 J. P. 299. to the common gaol or house of correction for the county, Post, p. 80. riding, division, liberty, city, borough, or place to which by law he may now be committed, or, in the case of an indictable offence committed on the high seas, or on land beyond the sea, to the common gaol of the county, riding, division, liberty, city, borough, or place within which such justice or justices shall have jurisdiction, to be there safely kept until he shall be thence delivered by due course of law, or admit him to bail as herein before mentioned. NOTE. The duty of a justice of the peace, in this respect, is similar to that of a grand jury; he is not to try the prisoner, he is not to judge whether the evidence given is sufficient to convict him, but he is simply to ascertain whether the evidence given raises a strong or even probable presumption against the prisoner, and if so, he must commit or bail him. If he think that the evidence does not raise that presumption, and there does not appear to be any other material evidence to be brought forward against him, then it will be the justice's duty to discharge him. The discharge in this case is merely verbal. The committal may be to the common gaol of the county, &c. in which the offence was committed. 1 Arch. J. P. 298. Or it may be to any house of correction near to the place where the assizes or sessions are to be holden, at which the prisoner is intended to be tried. 5 & 6 W. 4, c. 38, s. 3. Justices of a town or place, having exclusive jurisdiction for the trial of felonies and misdemeanors, may nevertheless commit for capital felonies to the gaol of the county in which such town or place is situate, to be tried at the next gaol delivery. 60 G. 3&1 G. 4, c. 19, s. 1. And justices of boroughs or franchises, not having power to hear and determine felonies, may commit felons for trial at the sessions for the county in which such borough or franchise is situate, 4 & 5 W. 4, c. 27, s. 1, or for trial at the assizes. |