Counter pleading. Demurrer. Defects cured by verdict. Not guilty. 14 G. 3. c. 20. Et vide title Gaols. Discharge on acquittal with out fee. 3. He must make averment, as the case shall require, that he is the same person, and that it is the same offence. 4. No issue shall be taken upon the plea of nul tiel record, because it is pleaded in court; but the king's attorney may have oyer of the record. 5. The averments are issuable. 6. If issues be taken upon them, they shall be tried by the jury that is returned to try the person. 22 H. 8. c. 14. 7. He that pleads these pleas must plead over not guilty to the felony; for if the pleas be found against him, he shall be tried by the country. To the foregoing pleas in bar the crown may counter plead. There may also be a demurrer to the indictment; but this plea is a confession of the indictment, and should be avoided, as the prisoner may have all the advantages of exception to the indictment, either before his plea of not guilty, or after his conviction, and before judgment, as he might have by demurrer. 2 Hale, 257. But see 7 G. 4. c. 64. § 21. ante, p. 392., by the provisions of which certain defects there specified are cured by verdict; and see also § 20. of the same stat. Ibid. But if the attorney-general demur, and the prisoner join in demurrer, and it be adjudged against the prisoner, he shall plead over to the felony. 2 Hale, 257. Upon a demurrer to an indictment, the court must look to the whole record, to see whether they are warranted in giving judgment on it: and therefore it is open to objections, as well to the jurisdiction of the court where the indictment is found, as to the subject-matter of the indictment. R. v. John Fearnley, 4 T. R. 316. In indictment there can be no justification pleaded. Ib. 258. (IV.) The last plea is, not guilty, and it consists of two parts: 1. The issue of not guilty, whereunto the clerk joins issue: 2. The putting himself upon his country, when the clerk demands how he will be tried. And if he fail in either of these, it is in law a standing mute. Ib. 258. XII. Acquittal on an Indictment. By stat. 14 G. 3. c. 20., every prisoner charged with any felony or other crime, or as an accessary thereto, who shall on his trial be acquitted, or against whom no indictment shall be found by the grand jury, or who shall be discharged by proclamation for want of prosecution, shall be immediately set at large in open court, without payment of any fee to the sheriff or gaoler: but in lieu thereof, the treasurer, or other proper officer of the several counties, or of such districts, hundreds, ridings, or divisions, as are not usually assessed to the county at large, and of such cities, towns corporate, cinque ports, liberties, franchises, and places, as do not pay to the rates of the several counties in which they are respectively situate, shall, on a certificate signed by one of the judges or justices before whom such prisoner shall have been discharged, pay out of the general rate of the county or district such sum as hath been usually paid, not exceeding 13s. 4d. But an action cannot be brought by the person acquitted of Granting copy felony against the prosecutor of the indictment, without obtaining of indictment in felony. a copy of the record of his indictment and acquittal; which in prosecutions for felony it is not usual to grant, if there is any the least probable cause to found such prosecution upon. For it would be a very great discouragement to the public justice of the kingdom, if prosecutors for felonies, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.—But an action on the case for a malicious prosecution may be founded on such an indictment whereon no acquittal can be, as, if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn; for it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for preferring it is sufficient to justify the defendant, provided it doth not appear that the prosecution was malicious. 3 Blac. Com. 126. Burr. 1971. If, however, a copy of the indictment be procured, even without an order of the court, it will be admissible in evidence. Leggatt v. Tollervey, 14 East, 302. cit. 1 Phill. Evid. 423. See also Caddy v. Barlow, 1 Man. & Ryl. 279. n. and (a), ib., and Browne v. Cumming and others, 10 B. & C. 70. Copy of indictment is evi dence however obtained. In misde meanor it is matter of right. meanor. But in cases of misdemeanor, the defendant is entitled to a copy of the indictment as a matter of right. 1 Phill. 423. Morrison v. Kelly, 1 Blac. Rep. 385. At the sittings in Middlesex, an action came on to be tried for a malicious prosecution In misdein indicting the plaintiff for keeping a disorderly house. To prove the fact, the clerk of the peace for the Westminster sessions attended, with the original record of the acquittal. It was objected, that there ought to be a copy of the record granted by the court before which the acquittal is had, in order to ground an action for a malicious prosecution. But it was ruled by Ld. Mansfield C. J., that though this is necessary where the party is indicted for felony, yet the practice is otherwise in case of misdemeanors. on road indict ment. Rex v. the Inhabs. of Burbon, M. 57 G. 3. 5 M. & S. 392. Right not Indictment for non-repair of a highway. Plea, not guilty. Upon bound on verthe trial before Wood B. at the Westmorland Sum. Ass. 1816, dict of acquittal there was a verdict of not guilty. And now, Scarlett moved for a new trial, upon the ground that the verdict was against all the evidence; and he said, that the prosecution was for the purpose of trying a civil right only.-But, per Lord Ellenborough C. J. In general, the rule is not to grant a new trial in a criminal proceeding, after a verdict of not guilty. And, inasmuch as the right will not be bound on the plea of not guilty, we do not think it would be proper to break into the general rule on the suggestion that the prosecution was merely intended to determine a civil right. R. R. XIII. Indictments in Counties of Cities and Towns Corporate. By stat. 38 G. 3. c. 52. § 1., reciting, whereas there at present 38 G. 3. c. 52. exists in the counties of cities and of towns corporate within this kingdom an exclusive right that all causes and offences which arise within their particular limits should be tried by a jury of persons In what case the court may direct an issue 38 G. 3. c. 52. residing within the limits of the county of such city or town corporate; which ancient privilege, intended for other and good purposes, has in many instances been found by experience not to conduce to the ends of justice: And whereas it will tend to the more effectual administration of justice in certain cases, if actions, indictments, and other proceedings, the causes of which arise within the counties of cities and towns corporate, were tried in the next adjoining counties, enacts, that from and after the 1st of June 1798, in every action, whether transitory or local, which shall be prosecuted or depending in any of H. M.'s courts of record at Westminster; and in every indictment removed into the K. B. by certiorari; and in every information filed by H. M.'s attorney or solicitor general, or by the leave of the court of K. B.; and in all cases where any person or persons shall plead to or traverse any of the facts contained in the return to any writ of mandamus, if the venue in such action, indictment, or information be laid in the county of any city or town corporate within that part of G. B. called England, or if such writ of mandamus be directed to any person or persons, body politic and corporate, that it shall be lawful for the court in which such action, &c. or other proceeding shall be depending, at the instance of the prosecutor or plaintiff, or of any defendant, to direct the issue or issues joined in such action, &c. to be tried by a jury of the county next adjoining to the county of such city or town corporate; and to award proper writs of venire and distringas accordingly, if the said court shall think it fit so to do. to be tried by a jury of the county next adjoining to the city or town corporate in which the venue is laid. Indictments may be preferred to county next adjoining. Indictment found in county of city or town corporate may be transferred to county next adjoining. 51 G. 3. c. 100. In cases of conviction under recited act, the sentence may be executed in the county of the city or town corporate, as well as in ad § 2. Indictments for offences committed within the county of any city or town corporate, may be preferred to the jury of the county next adjoining. §3. Indictments found by the grand jury, or inquisitions taken before the coroner of the county of a city or town corporate, may be ordered by the court to be filed with the proper officer of the . next adjoining county, and defendants may be removed to the gaol thereof. By stat. 51 G. 3. c. 100., after reciting the provisions of the preceding act, it is enacted, that from and after the passing of this act, it shall and may be lawful for the court before which any conviction shall have taken place in pursuance of the provisions of the said recited act, to order every such convict to be punished according to law, either within the county where such conviction shall have taken place, or within the county of the city or town corporate wherein such offence shall have been committed; and in cases where the court shall order such convict to be punished within the county of such joining county. city or town corporate, it shall be lawful for the court, after passing sentence upon every such convict, to order him to be delivered into the custody of the sheriff, gaoler, or other proper officer of the county of such city or town corporate; and the sheriff, gaoler, or other proper officer of the county of such city or town corporate is commanded to receive into his custody every such convict, and to execute the sentence so passed upon him in such adjoining county, as if he had been tried and had received such sentence in the county of such city or town corporate. § 2. And whereas it is provided by the said in part recited act, (§ 8.) that in all cases of indictments and other proceedings which Providing for county of a city may be tried before H. M.'s justices of oyer and terminer or ge- 51 G. 3. c. 100. neral gaol delivery, for any county, in pursuance of the provisions contained in the said act, it should and might be lawful for such justices to order the expenses of the prosecution, and of the witnesses, and of the several rewards payable in pursuance of the statutes in such cases made and provided on the conviction of offenders, to be paid by and to the same persons and in the same manner as the same would have been payable if such indictment had been tried in the court of oyer and terminer or general gaol delivery of the county of such city or town corporate: And whereas it is just and expedient that a similar provision should be made for the payment of all other expenses which may be incurred by any such adjoining county in relation to any person who may be tried or removed for trial to such adjoining county, for any offence committed or charged to have been committed in the county of any such city or town corporate; the justices of oyer and terminer or general gaol delivery, at any sessions thereof holden for such county, shall order all expenses whatsoever incurred by such county in relation to any person who shall be tried in such county or removed thither for trial, for any offence committed or charged to have been committed within the county of any such city or town corporate, as well in maintaining and supporting such person and carrying the sentence into execution as in any other respect, to be repaid to the treasurer of such county, or other person acting as treasurer of such county, or who shall have actually paid such expenses, by the same person and in the same manner as the same would have been payable, if such offender or supposed offender had remained in the county of such city or town corporate, and had been tried in the court of oyer and terminer or general gaol delivery of the county of such city or town corporate, and as if the sentence with respect to such offender had been carried into execution within the county of such city or town corporate. Condition of a Recognizance to prefer a Bill of Indictment. ` Condition of a Recognizance to answer to an Indictment. THE condition of this recognizance is such, That if the above bound A. O. shall personally appear at the next general quarter sessions of the peace to be holden at in and for the said county, then and there to answer to an indictment to be preferred against him by A. I. of. yeoman, for assaulting and beating him the said A. I., and not depart without leave of the court, Then this recognizance to be void. Indorsing a Warrant in another County. Infant, who. Age of discretion. Infant liable. Breach of peace. Perjury. Aliter for a mere nonfeasance. Exception. For not attach- ano her. Infants. How far answerable for Crimes. BY an infant or minor is meant any one who is under the age of twenty-one years. 1 Inst. 2. It is said generally, that those who are under a natural disability of distinguishing between good and evil, as infants under the age of fourteen years, which is called the age of discretion, are not punishable by any criminal prosecution whatsoever. But this must be understood with some allowance; for if it appear by the circumstances that an infant under the age of discretion could distinguish between good and evil, as, if one of the age of nine or ten years kill another and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of full age. But in such case the judges will in prudence respite the execution, in order to get a pardon; and it is said, that if an infant apparently wanting discretion be indicted and found guilty of felony, the justices themselves may dismiss him without a pardon. And in general it must be left to the discretion of the judge, upon the circumstances of the case, how far an infant under that age is capax doli, or hath knowledge to discern betwixt good and evil. Hale's Sum. 43. 1 Haw. c. 1. §8. 1 Hale, 18. 1 Russ. 3. In case of any notorious breach of the peace, as a riot, battery, or the like, an infant under the age of twenty-one is equally liable to suffer as a person of the full age of twenty-one. 1 Russ. 2. 3 Bac. Abr. 591. So, if an infant judicially perjure himself, he shall be punished for the perjury: and he may be indicted for cheating. Ibid. But where the offence charged is a mere non-feasance, there in some cases he shall be privileged by his non-age, if under twentyone, though above fourteen years; because laches in such case shall not be imputed to him, unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c. Ibid. If A. kills B., and C. and D. are present, they may be fined or imprisoned if they do not attach the offender; but if C. is under twenty-one, he shall not be fined or imprisoned. 3 Bac. Abr. 591. The following is an important case, as to the capability of an infant of ten years old to commit the crime of murder; and as to the expediency of visiting such an offender with capital punishment. |