be already in custody for some other offence. such justice or justices, upon its being proved upon oath or affirmation before him or them that the person so apprehended is the same person who is charged and named in such indictment, shall, without further inquiry or examination, commit (H.) him for trial, or admit him to Post, p. 18. bail, in manner hereinafter mentioned; or if such person How, if he so indicted shall be confined in any gaol or prison for any other offence than that charged in the said indictment, at the time of such application, and production of the said certificate to such justice or justices as aforesaid, it shall be lawful for such justice or justices and he and they are hereby required, upon it being proved before him or them upon oath or affirmation that the person so indicted and the person so confined in prison are one and the same person, to issue his or their warrant (I.) directed Post, p. 18. to the gaoler or keeper of the gaol or prison in which the person so indicted shall then be confined as aforesaid, commanding him to detain such person in his custody until by her Majesty's writ of habeas corpus he shall be removed therefrom, for the purpose of being tried upon the said indictment, or until he shall otherwise be removed or discharged out of his custody by due course of law. NOTE. A practice very similar to this prevailed previously to this statute, not only without authority, but seemingly in contravention of the provisions of stat. 7 Geo. 4, c. 64, ss. 2, 3, by which it was enacted that justices of the peace, before they should admit to bail, or commit to prison, any person arrested for felony or misdemeanor, or on suspicion of the same, should take the examination of such person, and the information of those who knew the facts and circumstances of the case, and should put the same into writing, and transmit the same to the officer of the court in which the offender was to be tried ;— which was in fact never done. But the practice was found useful, and it was deemed advisable in this statute to legalize it. And now, upon obtaining from the proper officer a certificate of the indictment being found, a warrant may be obtained for the apprehension of the defendant, not only in cases where the prosecutor has omitted to obtain a bench warrant during the session at which the indictment was found, but also, if necessary, in cases where a bench warrant has issued; for it may happen that whilst a bench warrant is in possession of a constable in another county, or in a distant part of the same county, there may be an opportunity of apprehending the defendant in another part of the county or in another county. It may be objected to this practice, that it deprives a defendant of all knowledge of what has been sworn against him, and that he cannot therefore be so well prepared with his defence, as if the witnesses against him had been examined in his presence, and he had an opportunity of getting a copy of their depositions. But the same objection would apply equally to a bench warrant, or to the old common law process upon an indictment by writs of venire facias and capias. By this section also it is provided, that where a person, against whom an indictment is found, is already in custody for another offence, a justice of the peace, on application, and on production of a certificate of the indictment being found, may issue a warrant of detention directed to the gaoler in whose custody he is, ordering him to detain the prisoner, until he shall be removed for the purpose of his trial upon the indictment, or until otherwise discharged by due course of law. This is new in practice. Formerly it was usual in such a case, to issue a warrant to apprehend the prisoner, and either to lodge that with the gaoler, (which was obviously irregular, and in strictness ineffectual,) or to give it to a constable, and let him watch his opportunity to arrest the defendant, immediately upon his being discharged from his previous imprisonment. But the warrant of detention given by this section, is a great improvement upon the old practice. In cases where a mere charge is made against a prisoner, but no indictment has been found, it was not thought necessary that a warrant of detention should issue. In such cases, therefore, a warrant to apprehend, if granted, must remain in the hands of the constable, and he must ascertain the time of the prisoner's discharge, and take that opportunity of executing the warrant. Or, if the charge be very serious, there is no objection to a justice of the peace attending at the prison, there taking the depositions in the presence of the prisoner, and making out his warrant of commitment, as in ordinary cases; and upon that being delivered to a constable present, he may formally execute it, and then hand it over to the gaoler. It is objected (S.), that where an indictment is found at the assizes, this section ought to have provided that the certificate here mentioned should be granted by the clerk of assize or clerk of arraigns, and not by the clerk of the indictments, who (it is alleged) never has possession of the indictment after it is presented to the grand jury. This assertion, being made positively and without qualification whatever, made me doubt my knowledge of the practice upon the subject; and I accordingly addressed a letter to the clerk of the indictments of the northern circuit, begging of him to inform me in whose custody those indictments found at the assizes, but upon which the parties are not then tried, remain; and I received from him the following answer : "York, 7th Oct. 1848. "Dear Sir,-The indictments found at the different assizes on the northern circuit, remain with me until tried, unless removed by certiorari; and if found in any of the northern counties, are taken with me on the circuit. Until tried, they are called extras. I am, dear sir," &c. &c. So that it seems that S. is here again mistaken; and if he were to apply to the clerk of assize or clerk of arraigns for the certificate here mentioned, he would be referred to the clerk of the indictments. Another objection (S.) to this clause is, that this certificate cannot be granted until after the assizes or sessions. But during the assizes or sessions, the court may grant a bench warrant, upon application; and it was thought right that justices out of sessions should not interfere with the discretion which the judge or bench may exercise in this respect. FORMS. (F.) Certificate of Indictment being found. I hereby certify, that at [a court of oyer and terminer and general gaol delivery, or a court of general quarter sessions of the peace,] holden in and for the [county] of - at in the said [county], on a bill of indictment was found by the grand jury against A. B. therein described as A. B. late of [labourer], for that he [&c. stating shortly the offence], and that the said A. B. hath not appeared or pleaded to the said indictment. Clerk of the peace of and for the said [county]. (G.) Warrant to apprehend a person indicted. To the constable of· and to all other peace officers in the said [county] of Whereas it hath been duly certified by J. D. clerk of the circuit [or clerk of the peace of and indictments on the for the [county] of -] [that, &c. stating the certificate] : These are therefore to command you, in her Majesty's name, forthwith to apprehend the said A. B. and to bring him before [me], or some other justice or justices of the peace in and for the said [county], to be dealt with according to law. Given under my hand and seal, this day of the year of our Lord at- in the [county] aforesaid. J. S. (L. S.) (H.) , Warrant of Commitment of a Person indicted. in To the constable of, and to the keeper of the [common gaol, or house of correction,] at in the said [county] of Whereas by [my] warrant under my hand and seal, dated the day of after reciting that it had been certified by J. D. [&c. as in the certificate], [I] commanded the constable of and all other peace officers of the said county, in her Majesty's name, forthwith to apprehend the said A. B. and to bring him before [me], the undersigned, [one] of her Majesty's justices of the peace in and for the said [county], or before some other justice or justices of the peace in and for the said [county], to be dealt with according to law: And whereas the said A. B. hath been apprehended under and by virtue of the said warrant, and being now brought before [me], it is hereupon duly proved to [me] upon oath that the said A. B. is the same person who is named and charged in and by the said indictment: These are therefore to command you the said constable, in her Majesty's name, forthwith to take and safely convey the said A. B. to the said [house of correction] at in the said [county], and there to deliver him to the keeper thereof, together with this precept; and I hereby command you the said keeper to receive the said A. B. into your custody in the said house of correction, and him there safely to keep until he shall be thence delivered by due course of law. Given under my hand and seal, this the year of our Lord -, at· (I.) 2 day of in in the [county] aforesaid. J. S. (L. S.) Warrant to detain a Person indicted, who is already in Custody for another Offence. at To the keeper of the [common gaol, or house of correction,] in the said [county] of Whereas it hath been duly certified by J. D. clerk of the indictments on the circuit [or clerk of the peace of and for the county of · -], that [&c. stating the certificate]: And whereas [I am] informed that the said A. B. is in your custody in the said [common gaol] at aforesaid, charged with some offence or other matter; and it being now duly proved upon oath before [me] that the said A. B. so indicted as aforesaid, and the said A. B. in your custody as aforesaid, are one and the same person: These are therefore to command you, in her Majesty's name, to detain the said A. B. in your custody in the [common gaol] aforesaid, until by her Majesty's writ of habeas corpus he shall be removed therefrom for the purpose of being tried upon the said indictment, or until he shall otherwise be removed or discharged out of your custody by due course of law. Given under my hand and seal, this the year of our Lord aforesaid. at in day of J. S. (L. S.) may be IV. And be it enacted, that it shall be lawful for any Warrant justice or justices of the peace to grant or issue any issued on a warrant as aforesaid, or any search warrant, on a Sunday Sunday. as well as on any other day. NOTE. It was very doubtful, before this statute, whether a warrant could be issued on a Sunday. A writ cannot issue on a Sunday; and if it bear date on a Sunday, it is wholly void. Hanson v. Shackleton, 4 Dowl. 48. A warrant, however, may be executed on a Sunday, if it be to apprehend for treason, felony, or a breach of the peace; see stat. 21 C. 2, c. 7, s. 6; and the statute is so liberally construed, that the words "breach of the peace" have been holden to include all offences which are impliedly against the peace; it has been holden that even a warrant to apprehend a man, that he might find sureties for his good behaviour, might be executed on a Sunday, within the meaning of this statute of Charles. Johnson v. Colston, T. Raym. 250. But a warrant to apprehend for non-payment of a penalty under a conviction, or for non-payment of money under a justice's order, cannot be executed on a Sunday, for it is in the nature of an execution in a civil action, and is clearly not a warrant for a "breach of the peace" within the statute. See R. v. Myers, 1 T. R. 265. 1 Arch. J. P. 131. But now, a warrant may not only be executed, but may be issued on a Sunday; there may be cases, where the instant pursuit of an offender on a Sunday may be of great importance, and when it may be necessary, or at least advisable, that the constable should be armed with a warrant for the purpose. |