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843. The practice in issuing it. While the practice may vary in the different states, the general rule is for the person restrained, or some one in his behalf, to present a petition to a court or judge, setting out the illegal detention, and praying for a writ of habeas corpus. The writ is then issued, commanding the person having the custody of the prisoner to produce him in court or before the judge, immediately, or at a fixed time. In some instances, where there is danger that the writ will be disobeyed, the writ directs the officer serving it to take possession of the prisoner immediately and bring him into court or before the judge. The person against whom the writ runs should present in writing his reasons for holding the prisoner, which is called his "return." To this the prisoner may reply, and the case is then ready for a hearing. If the court or judge finds that the imprisonment is illegal, the prisoner is immediately given his liberty. If it is a question of bail, he is either admitted to bail or remanded back into custody.

CHAPTER IV.

PROCEDURE BEFORE TRIAL.

8 44. Right to counsel. There was a time in England when persons charged with felony were not permitted to have the assistance of counsel; but now, both in England and our country, in any criminal case the accused has the right to appear both in person and by counsel, and, if he is unable to employ a lawyer, counsel will be appointed for him by the court. Not only does the right of counsel exist at the trial, but from the time of arrest the accused is entitled to such benefit-a right which the stationkeeper or jailor is bound to respect.

§ 45. Bail. In all criminal cases, except capital cases in which the evidence is strong, the accused is entitled to be admitted to bail in a reasonable amount, which amount is usually fixed by the presiding judge or magistrate. The bail required should be sufficient in amount to insure the presence of the accused at the trial; but should not be exorbitant; for that in effect would be a denial of his constitutional rights.

§ 46. Arraignment. By the old English practice, the accused was brought before the court and the indictment distinctly read to him; whereupon he was called to plead to the charges therein set against him. By our practice, he is generally entitled to a copy of the indictment prev

ious to his arraignment, and the reading of the indictment is usually dispensed with. At the arraignment he may either plead in abatement, move to quash the indictment, demur to the indictment, plead former jeopardy, plead not guilty, or plead guilty. A plea in abatement should be entered at the earliest possible moment; hence it comes before a motion to quash, while the other pleas are subsequent to the motion to quash.

§ 47. Ancient practice. Standing mute. Pressing to death. Under the old English practice, when a prisoner was arraigned for any felony other than high treason and stood mute or silent, the court impaneled a jury to determine whether his silence was the result of nature or obstinacy. If the jury found that he was dumb by nature, a trial was had the same as though he had pleaded not guilty; but if the jury found that his silence was the result of obstinacy, very severe measures were taken to compel him to plead; for the law was then very technical and no trial could be had unless there was an issue joined by the defendant denying the charges in the indictment. At this point a sentence was distinctly read to him that he might know his danger, and a respite of a few hours given him. In speaking of this respite Blackstone says: "Thus tender was the law of inflicting this dreadful punishment;" but Blackstone fails to tell us what occurred during the respite. Kelynge gives us an account of the procedure during the respite, as it was in the reign of Charles the Second (1). In speaking of the case of one

(1) Thorley's Case, Kelyng 27.

George Thorley he says that the prisoner was sent out with his two thumbs tied together with whip cord that the pain thereof might cause him to plead; and that a minister was sent out to persuade the sufferer; and that in an hour Thorley was brought back and entered his plea.

If the prisoner remained obstinate, the sentence of the court was read to him, which was substantially as follows: That he be put in a low dark chamber; then laid on his back naked upon the bare floor, except where decency forbids; that his arms and legs by the use of cords be stretched toward the four corners of the room; that upon his body be placed a great weight of iron, as much as he could bear, and more; that upon the first day he be given three morsels of the worst bread; that on the second day he be given three draughts of standing water, that should be nearest to the prison door; that this should be his diet alternating daily, till he died, or, as the ancient judgment ran, until he answered (2). The practice of pressing to death did not apply to cases of high treason or to misdemeanors. In those cases the silence of the accused was considered the same as a plea of guilty.

§ 48. Same: A New England case. There is at least one noted instance of this infamous practice west of the Atlantic. In the days when witchcraft prosecutions were had both in Europe and America, Giles Corey, a citizen of Massachusetts, eighty years of age, was arraigned for that imaginary offense, and, well knowing that a convic

(2) 2 Hale's P. C. 319; 4 Bl. Com. 327.

tion would follow either a plea of guilty or not guilty and take both his life and the substance of his family, he bravely stood mute. For this he was sentenced to be pressed. The pressure was so great that the dying man's tongue protruded. The refined sensibilities of the devout sheriff were so shocked at this involuntary rudeness that he pushed it back with his cane (3).

§ 49. Plea in abatement. Misnomer. A plea in abatement does not attack the substance of an indictment, but refers to some irregularity regarding it. If the grand jury is improperly selected or impaneled, if improper methods are used in obtaining the indictment, if persons other than grand jurors are present at the voting of the indictment, if the defendant is indicted by the wrong name, or if some other irregularity has happened which does not appear on the records, such facts may be set out in a plea in abatement. If the charges in the plea in abatement are found to be true the indictment is quashed but a new indictment may be had. Under this head comes a plea of misnomer. For example, a man by the name of John Amann was indicted by the name of John Ammon. It was held that he had a right to file a plea alleging that he was always known by his true name, and not by the name of Ammon (4).

§ 50. Motions to quash. A motion to quash applies to something which appears on the face of the indictment, or in the records. If by the records it appears that the

(3) Washburn's Judicial History of Mass., 142; 2 Chandler's Criminal Trials, 122.

(4) Amann v. People, 76 Ill. 188.

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