frequently applied, which bear upon the matters laid before them. He also draws their attention, if necessary, to crimes which are liable to be confused, for example, larceny and embezzlement; and in general directs their inquiries to the proper channel. The charge having been delivered, the grand jury withdraw to their own room, having received the bills of indictment. The witnesses whose names are indorsed on the bill are sworn as they come to be examined in the grand jury room; the oath being administered by the foreman, who, as each witness is examined, writes his initials opposite to the name on the back of the bill.(p) Only the witnesses for the prosecution are examined, seeing that the function of the grand jury is merely to inquire whether there is sufficient ground to put the accused on his trial. If the majority of them think that the evidence adduced makes out a sufficient case, the words "a true bill" are indorsed on the back of the bill; if they are of the opposite opinion, the words "not a true bill" are so indorsed, and in this case the bill is said to be ignored. They may find a true bill as to the charge in one count, and ignore that in another; or as to one defendant and not as to another; but they can not, like a petty jury, return a special or conditional finding, or select parts of counts as true and reject the rest. When one or more hills are found, the grand jury come into court and hand the bills to the clerk of arraigns, or clerk of the peace, who states to the court the name of the prisoner, the charge, and the indorsement of the grand jury. They then retire and consider other bills, until all are disposed of; after which they are discharged by judge, chairman, or recorder, presiding. If the bill is thrown out or "cut," although it can not again be preferred to the grand jury during the same assizes or sessions, it may be preferred and found at subsequent assizes or sessions, of course within the time limited, if there be any time so limited.(g) We may anticipate, by reminding the reader that this can not be done in respect (p) 19 and 20 Vict., c. 54, % 1. of the same offense if the petty jury have returned a verdict; unless, indeed, the prisoner is acquitted, on a charge of felony, merely on the ground that the proof establishes an act short of the felony charged, but which amounts to a misdemeanor, or another kind of felony. In such case the court orders him to be detained; and the proper course is to take him before the magistrate again. We have pursued the ordinary method of criminal procedure by supposing that, in the first instance, there has been an examination before the magistrate. But this does not always take place. With certain exceptions, a person may prefer a bill of indictment against another before the grand jury without any previous inquiry into the truth of the accusation before a magistrate. This general right was, at one time, an universal right, and was often the engine of tyranny and abuse. It is easy to conceive how an innocent man's character might be injured, or at least how he might be put to great expense and inconvenience in defending himself against a charge founded on a true bill returned by the grand jury, who have heard only the evidence for the prosecution. A substantial check was put upon this grievance by the vexatious indictments act.(r) It provides that no bill of indictment for any of the offenses enumerated below shall be presented to or found by the grand jury unless one of the following steps has been taken: (a) The prosecutor or other person presenting such indictment has been bound by recognizance to prosecute or give evidence against the accused; or (b) the accused has been committed to, or detained in, custody, or has been bound by recognizance to appear to answer an indictment for such offense; (s) or (c) unless the indictment has been preferred by the direction, or with the consent, in writing, of a judge of the high court, or the attorney or solicitor-general of England, if the offense has been committed in England; or of a judge of one of the superior courts of law in Dublin, or the attorney or solicitor-general of Ireland, if the offense has been committed in Ireland; or (d) in case of an (r) 22 and 23 Vict., c. 17. (s) See 2, as to a justice refusing to commit or bail indictment for perjury, by the direction of any court, judge, or public functionary, authorized by 14 and 15 Vict., c. 100, to direct a prosecution for perjury. The offenses referred to are: Perjury, subornation of perjury, conspiracy, obtaining money or property by false pretenses, keeping a gambling house, keeping a disorderly house, indecent assault; and now, by the debtors act, 1869,(t) any misdemeanor under the second part of that act. The object of this salutary provision was furthered by a subsequent statute,(u) one section of which (sec. 2) allows the court trying an indictment for any of such offenses, in its discretion, to order the prosecutor to pay costs and expenses to the accused in the event of the latter's acquittal. [The number of jurors required to constitute a grand jury differs in the various states. Sixteen are required in Kentucky, Illinois, and Michigan; fifteen suffice in Ohio and Iowa; while in Indiana, where the constitution authorizes the legislature to modify or abolish the grand jury system, the grand jury consists, by the act of 1875,(1) of six members. The rule is almost universal, that twelve of the members must concur to find an indictment; but in Georgia, an indictment for misdemeanor may be found by nine, and in Indiana, under the act of 1875, five are sufficient to find any indictment. In most, if not all, the states, the prosecuting attorney may be present at their sessions, except while they are discussing or voting upon the question of finding a true bill. In Ohio, he may be present then also.(2) The grand jury, in the United States, do not pass upon a bill of indictment presented by a private prosecutor; but consider a charge transmitted by an examining magistrate, or preferred or suggested by the prosecuting attorney or by one of their own number, and, after such consideration, find, or refuse to find, an indictment. The indictment is drawn up by the prosecuting attorney in accordance with (t) 32 and 33 Vict., c. 62, § 18. (1) Rev. Stat. (1876), p. 417. (u) 30 and 31 Vict., c. 35. their finding. It must be indorsed "a true bill," and this indorsement signed by the foreman. In most states, the name of a prosecuting witness must, in certain cases, be irdorsed on the indictment, who shall be liable for costs in case the prosecution be groundless and instigated without reason. In Ohio, an indictment for misdemeanor must be indorsed with the name of the prosecuting witness, or else with a statement that it was found upon testimony sent before the grand jury at the request of the prosecuting attorney or of the foreman. (1) In Illinois, no indictment for false imprisonment, or for willful or malicious mischief, shall be indorsed a true bill, unless either there is a statement, at the end thereof, that the same is found upon the information and knowledge of two or more of the grand jury, or the name of a prosecutor is indorsed, by the foreman, with such prosecutor's assent. (2) In Iowa, when any indictment is found, at the instance of a private prosecutor, it must be so indorsed.](3) (1) 74 Ohio L. 332. (3) Rev. Stat. (1873), p. 663. (2) Rev. Stat. (1877), p. 403. CHAPTER VIII. PROCESS. THE grand jury have found a true bill. The next point to be considered is the process (the writs or judicial means) issued, or made to proceed, to compel the attendance of the accused to answer the charge. Of course this is not required if he is in custody or surrenders to his bail; in such case he may be tried as soon as is convenient. If he is in custody of another court for some other offense, the course is to remove him by a writ of habeas corpus, and bring him up to plead. But if he is already in the custody of the same court, there is no need for such writ.(x) If, however, an indictment has been found in the absence of the accused, he having fled or secreted himself so as to avoid the warrant of arrest, or has not been bound over to appear at the assizes or sessions, then process must issue to bring him into court. It is contrary to the policy and humanity of the English law to try an indictment in the absence of the accused.(y) Process in ordinary cases is now regulated by 11 and 12 Vict., c. 42, § 3. When an indictment has been found at the assizes or sessions against some person who is at large, the clerk of indictments, or clerk of the peace, after such assizes or sessions, upon the application of the prosecutor or any person on his behalf, will grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the jurisdiction where the offense is alleged to have been committed, or in which the accused resides, or is, or is suspected of residing or being, such justice may and must issue his warrant to apprehend the person so indicted and bring him before some justice of the jurisdiction, who, upon proof by oath that the fer (x) 30 and 31 Vict., c. 35, § 10. (y) But v. p. 301. |