felony, &, may

other indictable offence whatsoever, the offender Proceedings in should be apprehended and brought before a be mated Magistrate, with the necessary witnesses to sub- before Ju tirer, stantiate the charge against him; whereupon the examinations and depositions are taken in writing upon oath, and, if the evidence in the opinion of the Magistrate, is sufficient to warrant a committal for trial, a mittimus is forthwith made out for the constable to take the prisoner to gaol; and the prosecutor and witnesses are bound over to appear at the Supreme Court, Circuit Court, or Quarter Sessions, for the purpose of following up the prosecution.

ceeding before a

The proper manner to proceed where a charge Mode of Profor an indictable offence is made before a Magis- Magistrate. trate, is for the informant to lay an information in writing on oath, (according to the form in Act No. 1, Schedule A. p. 54), before a Justice, in case it is intended to issue a warrant in the first instance, upon which the Justice will issue his Justice may warrant, (according to the form in Act No. 1, in the first Schedule B. p. 54), for the apprehension of the instance; person charged with the offence. (b)

issue a warrant

he thinks proper.

Instead of issuing a warrant in the first er a summons if instance, the Justice may, if he thinks proper, issue his summons, (according to the form in Act No. 1, Schedule C. p. 55), requiring the attendance of the person, charged with the offence, before him, in which case it is not necessary that the information or complaint should be in writing, or should be sworn to, but in every such case the information may be by parol merely, and without any oath to substantiate it. (c)

cannot of his own

facts.

It sometimes happens that the prosecutor or When prosecutor complainant cannot of his own knowledge give any knowledge give evidence of the facts; in which case his testimony evidence of the goes only to the loss and damage of his property, and the conclusion as to his redress for the injury sustained, and the application for remedy and relief thereon by law. For this purpose a prece

(b) 11 & 12 Vict. c. 42, ss. 1 & 8. (c) Ibid s. 9,

dent is here given by way of example and guide, to be varied in form according to the circumstances of the case—

FORM OF THE INFORMATION AND

New South
Wales,

to wit.

COMPLAINT.

The information and complaint of [prosecutor] of [place of residence ] in the said Colony, profession or calling] taken on oath before me [or us, names of Magistrates and titles at full length one of Her Majesty's Justices of the Peace acting in and for the said Colony, the

of

day

in the year of our Lord one thousand eight hundred and

Who saith as follows,-That from information I have received, and from other circumstances within my knowledge, I have just reason and good cause to suspect and do suspect, that

late of

[the party accused,] in the said Colony, laborer,

day

did, on or about the
of
take, and carry away, [the article or matter stolen,] the
same being my property; and thereupon I pray that
justice may be done herein.

last, unlawfully and feloniously steal,

Of the summons.

This complaint, in writing, being sworn to by the prosecutor, constitutes sufficient ground for the Magistrate to grant a warrant.

The summons is directed to the party charged in the information, and it must be served upon him by a constable or other peace officer, by delivering it to him personally, or if he cannot conveniently be met with, then by leaving it with some person for him at his last or most

asual place of abode. (d) The constable who served the summons must attend before the Justice, and at the time and place mentioned in the summons, to depose, if necessary, to its due service; as in the event of the party summoned not appearing, a warrant may be issued, (form in Act No. 1, schedule D., p. 55) for his apprehension. The Justice is not, however, by issuing a summons in the first instance prohibited from issuing a warrant for the apprehension of the person charged, at any time before or after the time mentioned in the summons for the appearance of the party.

defect in form.

It is provided (e) that no objection shall be No objection taken or allowed to the summons, or to any such allowed for warrants for the apprehension of the person charged, or to any information or complaint, for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the Justices who shall take the examinations; but if any such variance should appear to have been such as to have misled or deceived the party charged, the Justices may at his request adjourn the hearing to a future day, and in the meantime remand him or admit him to bail.

prehend for

seas or abroad.

When any person charged with having com- Warrant to apmitted or with being suspected to have committed offences commitany crime or offence on the high seas, or on land ted on the high beyond the high seas, shall be, or shall be supposed to be, within the jurisdiction of any Justice, such Justice may issue his warrant (according to form in Act No. 1, schedule E., p. 56) to apprehend the person so charged. (f)

against whom an

When a person is at large and an information Warrant to apor indictment is preferred against him by the prehend a person Attorney General, either at the Supreme Court, indictment is Circuit Court, or at the Quarter Sessions, and he

(d) 11 & 12 Vic. c. 42, s. 9. (e) 11 & 12 Vic. c. 42, ss. 8 & 9. (f) 11 & 12 Vict. c. 42, s. 12.

found.

If the person is in prison for some other

offence he may be detained.

Of the warrant to apprehend.

does not appear and plead to the information or indictment, the prosecutor may apply to the Prothonotary of the Supreme Court, or the Clerk of Arraigns at the Circuit Court, or the Clerk of the Peace at the Sessions where the information or indictment has been found, after the termination of the Sessions, for a certificate (according to the form in Act No. 1, Schedule F., p. 56) of the information or indictment having been preferred; and on the production of this certificate to any Justice having jurisdiction where the offence was committed, or where the person charged therewith is supposed to be, he shall issue a warrant for the apprehension of the person charged with the offence (according to the form in Act No. 1, Schedule G., p. 57.) On the apprehension of the party charged, and on proof on oath being afforded that he is the person named in the indictment, the Justice is authorised to commit him for trial (form in Act No. 1, Schedule H., p. 57), or admit him to bail according to the nature of the offence. (g)

Should the person indicted be confined in prison for any other offence, at the time this application is made, the Justice may, on proof, on oath, of the identity of the person, issue a warrant, (form in· · the Act No. 1, Schedule I, p. 58), directed to the Gaoler, to keep such person in custody, until he is removed by habeas corpus, for the purpose of being tried, or until he is removed or discharged out of his custody by due course of law. (h)

The warrant to apprehend a party charged with an indictable offence, must be under the hand and seal, or the hands and seals of the Justice or Justices issuing it. (i) It may either be directed to the constable by name, or generally to the constable of the place or district within which it is to be executed, or to such constables and all other constables of the district, &c. In this Colony it

(g) 11 & 12 Vict., c. 42, s. 3. (h) Ibid. (i) Ibid s. 10.

is usual to direct the warrant to the Chief Constable of the district and his assistants. The warrant should state the offence shortly, and name, or otherwise describe the offender. It is not necessary to make it returnable at any particular time, but it may remain in force until it is executed. It may also, like a search warrant, be executed on a Sunday. (j)

executed.

With respect to the mode of executing the mow and when warrant, the recent Act of 11 and 12 Vict., c. 42, warrant may be s. 10, provides that the offender may be apprehended under such warrant any where within the jurisdiction of the Justice issuing the warrant, or in case of a fresh pursuit at any place in the next adjoining county, or district, or place, or within seven miles of the border of the county, or district, or place, over which the Justice who issued the warrant has jurisdiction, without its being backed by a Justice of such adjoining county, district, or place.

backed.

If the suspected offender should abscond into Warrant may be another jurisdiction different from that in which the offence was committed, the constable should take the warrant to a Justice of the jurisdiction into which the offender has absconded, for the

66

(j) 11 & 12 Vict., c. 42, s. 4 -In Mr. Saunders' edition of these Acts, he raises a curious objection to the execution of a search warrant on a Sunday. He says, "it was, no doubt, intended that the warrant to be granted (under the s. 4 of this Act, on the Sunday "might be executed on that day, but, oddly enough, "nothing whatever is said as to the power to use "such an instrument on that day." With regard to the arrest of a party upon a Sunday by warrant, any doubt is decided by the case of Rawlins v. Ellis and others (16 M. & W., 172; 16 L· J., Ex. 5); and with respect to a search warrant, it may well be asked, to what purpose does the Act especially provide for granting it on a Sunday if it cannot be executed on that day?-Both Mr. Archbold and Mr. Westbody agree in opinion that it can be so executed, and they attach but little weight to the "formidable doubt” which Mr. Saunders has raised.