in which such liberty, &c. situate. Persons charged with felony. Persons charged on suspicion. Power of committing or bailing under act for improvement of criminal justice. Power of commitment by justices under larceny act. Under ma licious trespass act. corporate to commit such person to the house of correction of the county, riding, or division in which such liberty, city, or town corporate is situate; which person so committed shall and may be received, detained, dealt with and ordered, and be set and kept to hard labour, or conveyed and sent away, or discharged, and be subject and liable to the same correction and punishment, to all intents and purposes, as if committed by any justice or justices of peace of the same county, riding, or division. See R. v. Amos, 2 B. & A. 533. R. v. Musson, 6 B. & C. 74. tit. Sessions. If a prisoner be brought before a justice, expressly charged with felony upon oath, the justice cannot discharge him, but must bail or commit him. 2 Hale, 121. But if he be charged with suspicion only of felony, yet if there be no felony at all proved to be committed, or if the fact charged as a felony be in truth no felony in point of law, the justice may discharge him; as if a man be charged with felony for stealing a parcel of the freehold, or for carrying away what was delivered to him, and such like, for which, though there may be cause to bind him over as for a trespass, the justice may discharge him as to felony, because it is not felony. But if a man be killed by another, though it be by misadventure or self-defence (which is not properly felony), or in making an assault upon a minister of justice in execution of his office (which is not at all felony), yet the justice ought not to discharge him, for he must undergo his trial for it; and, therefore, he must be committed, or at least bailed. 2 Hale, 121. By stat. 7 G. 4. c. 64. § 1., if a charge of felony or suspicion thereof is supported by positive and credible evidence, or by such evidence as, if not explained or contradicted, shall in the opinion of the magistrate raise a strong presumption of guilt, the person so charged shall be committed; but if the evidence be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, the prisoner is then to be detained, and the examination is to take place before two justices, and if the presumption of guilt is not so strong as to require his committal, or if the evidence produced on behalf of the prisoner weakens the presumption of his guilt, but there appears nevertheless sufficient ground for judicial inquiry, the two justices may then admit to bail, but the justice is not required to hear evidence on behalf of the prisoner, unless it appear conducive to the ends of justice to do so. By § § 2. & 3., before the justices shall commit or bail for felony or misdemeanor, they are to take the examination of the prisoner and the information of the witnesses in writing. See antè, Bail. By 7 & 8 G. 4. c. 29. § 67., where the sum due by virtue of a conviction under that act shall not be paid either immediately or within such time as the justice shall appoint, he may commit the offender for any time not exceeding two months where the sum including costs shall not exceed 5., and four months where it shall not exceed 10%., to be determinable on the payment of the amount and costs. A like enactment is made by § 33. of 7 & 8 G. 4. c. 30. And so, by § 27, of 9 G. 4. c. 31., as to the fine of 5l. inflicted against offences by that act. Under act to the person. insufficient to a part of a Where an offender is convicted in one penalty, under a statute Commitment providing a corporal punishment on failure of sufficient distress, where goods are and has effects sufficient only to satisfy part, it has been held that the goods ought not to be taken, but the corporal punishment pay more than should be resorted to. If, however, the same person be separately penalty. convicted in two penalties, and his goods are sufficient to satisfy one only, they ought to be levied under one conviction, and the corporal punishment should be inflicted for the other. (See R. v. Wyatt, 2 Ld. Raym. 1195. Fort. 132. 11 Mod. 54.) But the law never intended that a man should suffer both punishments for one conviction. 2 Ld. Raym. 1196. Paley on Convictions, P. III. Ch. 1. § 4. 1st ed. p. 185., and note l. By 5 G. 4. c. 18. § 1., where magistrates have power of issuing a distress warrant for a penalty or forfeiture on conviction, they may detain offender in custody till the return of the distress warrant, unless he gives security to appear, &c.; but if it appear to the justice that the offender has no sufficient goods or chattels, the justice may commit him without issuing any distress warrant, the same as if nulla bona had been returned. On conviction, power of detaining till re turn of distress warrant. are not suf By § 2., in cases where justices are empowered to issue distress Where distress warrants, but no farther remedy is provided if no sufficient goods only is authoror chattels can be found; whenever it shall appear to such justice ised, yet if there that sufficient goods and chattels are not to be found, the justice ficient goods, may commit, without issuing any distress warrant, for any term justice may not exceeding three months, unless the sum adjudged and all costs, &c. be sooner paid, the amount of such costs, &c. to be specified three months. in the warrant of commitment. See Hutchinson v. Lowndes, 4 B. & A. 118. and post, p. 167. II. To what place. By stat. 5 H. 4 c. 10. all felons shall be committed to the common gaol, and not elsewhere. And by stat. 23 H. 8. c. 2. felons shall be imprisoned in the common gaol, which shall be kept by the sheriff. Vide 12 Howell's St. Tri. 1376. By 6 G. 1. c. 19. § 2. vagrants and other criminals, offenders, and persons charged with small offences, may for such offences, or for want of sureties, be committed either to the common gaol or house of correction, as the justices in their judgment shall think proper. By 4 G. 4. c. 64. § 4. the justices at sessions may declare and make order to what class of prisoners every gaol, house of correction, or any part thereof shall be applicable, with notice, &c., after which such class of prisoners and no other shall be committed or detained in such gaol, house of correction, &c.; and persons not coming within the class so appointed may be removed; and every such gaol or house of correction shall be deemed the legal place of confinement of persons committed pursuant to such order. commit for If distress would be injurious, justice may commit, in writing of with consent offender. 5 H. 4. c. 10. To the gaol. 23 H. 8. c. 2. Small offenders may be committed either to gaol or house of correction. Commitments under order for classification. 4 G. 4. c. 64. House of correction. Vagrants. 60 G. 3. &c. 1 G. 4. c. 14. justices, acting mit offenders 4 & 5 W. 4. c. 27. tit. Dessions. Justices au over witnesses by recognisance, to give By stat. 4 G. 4. c. 64. § 7. (tit. Gaols, ec. § XIV. (a)) idle and disorderly persons, rogues and vagabonds, incorrigible rogues, and other vagrants, shall be committed to some house of correction belonging to such county, &c. or place, and such house of correction shall be deemed the only legal place of commitment of any such person. Stat. 60 G. 3. & 1 G. 4. c. 14., after reciting that "whereas the trial of capital offences before justices of peace, within local and exclusive jurisdictions not being counties, may be attended with inconvenience, and it is desirable that some remedy should be provided for the same," enacts, "that the justices of the peace acting within and for any town, liberty, soke, or place, not being a county, but having an exclusive jurisdiction for the trial of felonies and misdemeanors committed within the same, shall, from and after the passing of this act (28. Feb. 1820), have full power within their respective limits, at their discretion, to commit any person duly charged before them, or any of them, with any capital offence committed within such limits, to the gaol of the county within which such town, liberty, soke or place shall be situated, then to be tried at the next session of oyer and terminer or general gaol delivery, to be held in and for such county, in the same manner as if such offence had been committed within any other part of the same county, and as if such person had been committed by any other justice of the same county, not being within such limits." § 2. "In all cases where any justice or justices of the peace, thorised to bind under the authority of this act, shall commit any person to the county gaol, it shall be lawful for such justice or justices, and he and they is and are hereby authorised and required also to bind over all necessary parties and witnesses by recognisance, to prosecute and give evidence against such offenders at the next sessions of oyer and terminer and general gaol delivery, and to transmit such recognisance, and all depositions taken before him or them relating to the charge, to the clerk of the crown, clerk of assize and other proper officer, to be filed in the court of oyer and terminer and general gaol delivery for such county, to the intent that the same may be used or put in force by the judge or judges of the said court, as he or they shall deem proper, according to law." evidence at the sessions of oyer and terminer; and transmit depositions taken before them to the clerk of the crown, &c. Expenses of the prosecution to be paid by the town or place within which the of fence shall be committed. 3. "In all cases of any commitments to the county gaol, under the authority of this act, all the expenses to which the county may be put by reason of such commitment, together with all such expenses of the prosecution and witnesses as the judge shall be pleased to allow by virtue of any law now in force, shall be borne and paid by the said town, liberty, soke, or place within which such offence shall have been committed, in like manner and to be raised by the same means whereby such expenses would have been raised and paid, if the offender had been prosecuted and tried within the limits of such exclusive jurisdiction; and the judge or court of oyer and terminer and general gaol delivery shall have full power and authority to make such order touching such costs and expenses as such judge or court shall deem proper; and also to direct by whom and in what manner such expenses shall in the first instance be paid and borne, and in what manner the same shall be repaid and raised within the limits of such exclusive jurisdiction, in case there be no treasurer or other officer within the same, who, by the custom and usage of such place, ought to pay the same in the first instance." See the new stat. 4 & 5 W. 4. c. 26. Justices may commit certain offenders to the stocks, or other Stocks. custody, by particular statutes. Generally, if a man commit felony in one county, and be ar- Different rested for the same in another county, he shall be committed to county. gaol in that county where he is taken. Dalt. c. 170. p. 409. Yet, if he escape, and be taken on fresh suit in another county, he may be carried back to the county where he was first taken. Dalt. c. 170. p. 409. Also by stat. 24 G. 2. c. 55. § 1., if a person is apprehended 24 G. 2. c. 55. upon a warrant indorsed in another county, for an offence not bailable, or if he shall not there find bail, he shall be carried back into the first county, and there be dealt with according to law. See this act at length, post, tit. Warrants. See also stat. 15 G. 2. c. 24. ante, § 1. p. 163. III. The Form of the Commitment. It must be in writing, either in the name of the king, and only In whose name. tested by the person who makes it, or it may be made by such person in his own name, expressing his office or authority, and must be directed to the gaoler or keeper of the prison, and must be under hand and seal. 2 Haw. c. 16. § 13. The commitments mentioned in 2 Haw. c. 16. § 13. mean commitments to the custody of sheriffs, gaolers, &c.; but a magistrate may by parol order an offender to be detained in custody until he can make out his warrant of commitment. Still v. Walls, 7 East, 533. (a) So a magistrate, in the case of a breach of the peace within his view, may instantly order the offender to be taken into custody. Per Cur. S. C. by court of A commitment by a court of record need not be under seal, Commitment as the record itself, or a memorial of it, will be sufficient. 2 Hale, 583, 584. Where 13 G. 3. c. 80. authorised the justice to issue a distress warrant, on nonpayment of a penalty on conviction, and to order the offender to be detained in custody, unless he give sufficient security for his appearance till the return of the distress warrant, it was held that the order to detain in custody might be by parol. Still v. Walls and another, 7 E. R. 533. It is fit to mention the name of the justice, and his authority, in the beginning of the mittimus, though not always necessary; for the seal and subscription of the justice to the mittimus is sufficient warrant to the gaoler; for it may be supplied by averment, that it was done by the justice. 2 Hale, 122. It ought also to mention the time and place at which it is made. 2 Haw. c. 16. § 13. It should contain the name and surname of the party committed, if known; if not known, then it may be sufficient to describe the person by his age, stature, complexion, colour of his hair, and the like, and to add, that he refuseth to tell his name. 1 Hale, 577. (a) Acc. Hutchinson v. Lowndes, 4 B. & A. 118. record. Order to detain till return of distress warrant, by parol, good. The party's name, if known. Oath. Cause. The nature of the felony. Treason, generally. Not the same strictness, as in an indictment. Need not state the offence to have been done "feloniously." There may be a fresh valid de tainer after a bad commit It is safe, but not absolutely necessary, to set forth that the party is charged upon oath. 2 Haw. c. 17. § 17. It ought to contain the cause, as for treason, or felony, or suspicion thereof: otherwise, if it contain no cause at all, if the prisoner escape it is no offence at all; whereas, if the mittimus contained the cause, the escape were treason or felony, though he were not guilty of the offence; and therefore for the king's benefit, and that the prisoner may be the more safely kept, the mittimus ought to contain the cause. 2 Inst. 52. And hereupon it appeareth that a warrant or mittimus, "to answer to such things as shall be objected against him," is utterly against law. 2 Inst. 591. Also it ought to contain the certainty of the cause; and therefore, if it be for felony, it ought not to be generally for felony, but it must contain the special nature of the felony, briefly; as for felony for the death of J. S., or for burglary in breaking the house of J. S., and the reason is, because it may appear to the judges of the K. B., upon an habeas corpus, whether it be felony or not. 2 Hale, 122. In Dr. Groenvelt's case, it was resolved, "that the cause of commitment ought to be certain, to the end that the party may know for what he suffers, and how he may regain his liberty. 1 Ld. Raym. 213. But a commitment for treasonable practices is legal. R. v. Despard, 7 T. R. 736. And commitments for high treason in general are good. 2 Haw. c. 16. § 16. Even in cases of felony, the want of the certainty of the cause seems not to make the commitment absolutely void, so as to subject the gaoler to a false imprisonment; but it lies in averment to excuse the gaoler or officer, that the matter was for felony. 1 Hale, 584. A commitment need not be drawn with the same precision as an indictment; but if the facts stated therein do not amount to felony, the prisoner will be entitled to be bailed. R. v. Remnant, 5 T. R. 169. And although it is not necessary to state, in a warrant of commitment on a charge of felony, that the act was done "feloniously," yet unless it sufficiently appears on the facts stated in the commitment to be in law a felony, the judges of the court of K. B. are bound to bail the defendant. R. v. Judd, 2 T. R. 255. Rex v. James Gordon, M. 1777, 1 B. & A. 572. (n.) James Gordon was committed to New Prison, Clerkenwell, till the next general sessions, for assaulting a custom-house officer's assistant in execution of his duty. Motion for a habeas corpus, because the stat. 13 & 14 Car. 2. c. 11. directs that such offender shall be comv. Marks, post. mitted, without bail, till the next quarter sessions. Writ granted. ment. And see R. Afterwards, the defendant being brought up, the keeper of New Prison returned the warrant of commitment, which appeared to be to the general sessions: but he also returned a warrant of detainer for the same offence, issued the day before he was brought up, by the same justice, which was till the next quarter sessions. The defendant, therefore, was remanded without opposition, the warrant of detainer being strictly regular. |