CHAPTER III. BAIL. By stat. 7 Geo. 4, c. 64, s. 1, (reciting that, Whereas it is expedient to define under what circumstances persons may be admitted to bail in cases of felony), it is enacted, that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices in the manner herein-after mentioned. But if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices of the peace, shall be charged with felony or on suspicion of felony, and the evidence given in support of the charge shall, in their opinion, not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal; or such evidence shall be adduced on behalf of the person charged, as shall, in their opinion, weaken the presumption of his or her guilt; but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for judicial enquiry into his or her guilt; the person charged shall be admitted to bail by such two justices, in the manner herein-after mentioned. Provided always, that nothing herein contained shall be construed to require any such justice or justices to hear evidence, on behalf of any person so charged as aforesaid, unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same. In all cases of misdemeanors, except for breach of prison, justices may take bail, see 3 Ed. 1, c. 15, and it is usual to do so; in such cases the justices exercise their discretion merely as to the amount for which they will require bail. In felony, bail cannot be taken by less than two justices; see stat. 7 Geo. 4, c. 64, s. 1, supra; in misdemeanor, it seems, it may be taken by one justice alone. Dalt, c. 12. 2 Hawk. c. 15, s. 54. Where the party is arrested under a warrant, in the county in which the warrant was originally granted, the bail must be taken by two justices of that county; but where the warrant is backed, and the party thereupon arrested in another county, the party may be bailed before the justice who backed the warrant, or some other justices of the same county, 24 G. 2, c. 55, s. 1, 45 G. 3, c. 92, s. 1, cr before justices of the county where the warrant was originally issued, at his option. Where application is made to a justice of peace, to bail a party accused, he may, if he think fit, (and in suspicious cases it is usually done), order that a reasonable notice of the bail, usually twenty-four or forty-eight hours, according to circumstances, shall be given to the prosecutor. And when the bail appear, whether such notice have been given or not, the justice, or the prosecutor, or any professional person on his behalf, may examine them on oath as to their sufficiency. If either of them be not a housekeeper, or appear not to be worth the sum for which he comes to be bail, both must be rejected. But if they both appear to be responsible persons, and housekeepers, the justice then takes their and the prisoner's recognizance of bail; which is done, by stating to the prisoner and his bail the substance of the recognizance and condition, stating it, however, in the second person, "You acknowledge yourselves to owe to our sovereign lord the King" &c. The following is the form of The Recognizance of Bail. Berkshire: Be it remembered that on the in the day of year of the reign of King George the Fourth, A. B. of, yeoman, G. H. of ―, yeoman, and I. K. of yeoman, came before us, J. P., and R. L., esquires, two of his Majesty's justices of the peace for the said county, and severally acknowledged themselves to owe to our said lord the King, that is to say, the said A. B. the sum of [twenty] pounds, and the said G. H. and I. K. the sum of [ten] pounds each, to be respectively levied of their lands and tenements, goods and chattels, if the said A. B. shall make default in the performance of the condition indorsed [or, underwritten] hereon. J.P. R. L. The condition of this recognizance is such, that if the within [or above] bounden A. B. shall personally appear [before the justices of our sovereign lord the King, assigned to keep the peace within the said county, and likewise to hear and determine divers felonies, trespasses and other misdemeanors in the said county committed, at the next general quarter sessions of the peace," or, "before his Majesty's justices of gaol delivery at the next general gaol delivery,] to be holden in and for the said county, then and there to answer to our said sovereign lord the King, for and concerning the [felonious taking and stealing of - , the property of A. M. of —, yeoman," describing the offence thus shortly], "with the suspicion whereof the said A. B. stands charged before us the said justices, and to do and receive what shall by the court be then and there enjoined him, and shall not depart the court without licence, then the within [or, above] written recognizance shall be void. Upon the recognizance being taken, if the defendant have appeared voluntarily, or if he be in custody of the constable, the justice discharges him, as of course. But if he be in prison, the justice, upon application, issues the following Warrant of Deliverance. Berkshire: J. P. esquire, and R. L. esquire, two of his Majesty's justices of the peace for the said county, to the keeper of his said Majesty's gaol, at in the said county: in the said county, Forasmuch as A. B., late of — labourer, hath before us found sufficient sureties for his appearance before [the justices at the next general quarter sessions of the peace," or "his said Majesty's justices of gaol delivery, at the next general gaol delivery] to be holden in and for the said county, to answer to our said sovereign lord the King, for and concerning the [felonious taking," &c. describing the offence shortly, as in the recognizance], "for the suspicion whereof he was taken and committed to your said gaol: We therefore hereby command you, on behalf of our said sovereign lord the King, that if the said A. B. do remain in your said gaol for the said cause, and for no other, you shall forbear to detain him any longer, but that you deliver him thence, and suffer him to go at large, and that upon the pain that will thereon ensue. Given under our hands and seals, at in the county aforesaid, in the year of our Lord 1828. the day of J. P. Care must be taken that the recognizance of bail be carefully transmitted to the proper officer of the court in which the trial is to be, so as to be delivered to him before or at the opening of the court, on the first day of the assizes or sessions. See stat. 7 Geo. 4, c. 64, ss. 2, 3, ante, p. 8, and see 24 Geo. 2, c. 55, s, 1, ante, p. 5. CHAPTER IV. COMMITMENT. [SECT. 1. Commitment generally. If the accused party be not bailed, or discharged without bail, he must be committed to the common gaol of the county, &c., 5 Hen. 4, c. 10. 23 Hen. 8, c. 2, or, when charged merely with small offences, either to the common gaol or house of correction, at the option of the committing magistrate. 6 Geo. 1, c. 19. The commitment should state the name of the party committed, if known. But if that be unknown, and the prisoner refuse to disclose it, it seems that in such a case it will be sufficient to describe the person by his age, stature, complexion, and the like, adding that he refuses to tell his name. 1 Hale, H. 577. It must state the offence for which the party is committed, and with sufficient certainty to distinguish it from any other offence. It is not necessary however to state the offence with the particularity and certainty required in an indictment; if stated concisely, as for "high treason," 2 Hawk. c. 16, s. 16, and see R. v. Despard, 7 T. R. 736, for "burglary in breaking and entering the dwelling house of J. S." 2 Hale, H. 122, or the like, it will be sufficient. If it state any material parts of the offence in the disjunctive, it will be bad. See R. v. Evered, Cald. 26. It must have an apt conclusion, namely, that the party be detained "until he shall be thence delivered by law," or "by order of law," or "by due course of law," 2 Hale, H. 123, 2 Hawk. c. 16, s. 18, or words to that effect. The following is the form of a Warrant of Commitment. in the Berkshire: J. P. esquire, one of his Majesty's justices of the peace for the said county, to the constable of said county, and to the keeper of the [common gaol] at in the said county. These are to command you the said constable, in his Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said [common gaol], the body of A. B., charged this day before me, the said justice, on the oath of C. D. of farmer, and others, for that he the said A. B. [on the second day of July, in the year of our Lord one thousand eight hundred and twenty eight, at-- in the said county, ten pieces of the current gold coin of the realm called sovereigns, one woollen cloth coat, and one linen shirt, of the monies, goods, and chattels of the said C. D., feloniously did steal, take, and carry away]. And you the said keeper are hereby required to receive the said A. B. into your custody in the same [common gaol], and him there safely to keep, until he shall be thence delivered by due course of law. Herein fail you not. Given under my hand and seal the in the year of our Lord day of J. P. As to the description of the offence in a commitment, see the next Section. SECT. 2. Commitments in particular Cases. 1. For Offences within Stat. 7 & 8 Geo. 4, c. 29, as to Larceny &c. 2. For Offences within Stat. 7 & 8 Geo. 4, c. 30, as to Malicious Mischief &c. 3. For Forgery. 4. For Offences against the Persons of Individuals. 5. For Offences against the King and his Government. 6. For Offences against Public Justice. 7. For Offences against Public Trade. 8. For Offences against Public Police and Economy. 9. For Conspiracy. 10. Against Principals in the second degree, and Accessaries. 1. Commitments for Offences within Stat. 7 & 8 Geo. 4, c. 29, as to Larceny, &c. Simple Larceny. Commencement, as ante, p. 18.] on the day of in the year of our Lord one thousand eight hundred and twentyeight, at in the said county, ten pieces of the current gold coin of the realm called sovereigns, one woollen cloth coat, and one linen shirt, of the monies, goods, and chattels of [the said] C. D., feloniously did steal, take, and carry away. And you the said keeper" &c. as ante, p. 19, to the end. See Arch. Peel's Acts, p. 1, 3, &c. |