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WHENEVER a person is restrained of his liberty, whether in prison or by a private person, and whether for a criminal or civil cause, he may, by Habeas Corpus, have his body, and the proceedings under which he is detained, removed to some superior jurisdiction having authority to examine the legality of the commitment, and on the return to the writ, he will be discharged, bailed, or remanded. There are three descriptions of writs of Habeas Corpus, namely, the Habeas Corpus ad subjiciendum, the Habeas Corpus ad deliberandum et recipiendum, and the Habeas Corpus cum causa. The principal Habeas Corpus Act, 31 Cha. II. c. 2, was passed owing to the delays which arose from sheriffs and other officers having persons in custody, and neglecting to make returns to writs of Habeas Corpus. The writ is obtained by motion to the court in term, and by application to a judge in vacation. It must be signed by the judge by whom it is granted. The party to whom the writ is directed is bound to return the body within three days if twenty miles, ten days if within a hundred miles, and twenty days for any greater distance. The depositions, in obedience to a certiorari issued from the crown office with the Habeas Corpus, are returned by the magistrate
COURTS OF CRIMINAL JURISDICTION.
who committed, for the information of the court. Upon the writ being returned, the counsel for the prisoner may move to file the return, and that the prisoner be called into court and the return read; after which the counsel proceeds: to argue the illegality of the commitment. The judges, after argument, either discharge, bail, or remand the prisoner. The writ of Habeas Corpus ad deliberandum et recipiendum lies to remove a prisoner to take his trial in the county where the offence was committed; the writ of Habeas Corpus cum causa is issued by the bail of a prisoner on a criminal charge, in order to render him in their own discharge; upon the return an exoneretur is entered on the bail-bond.
OF THE COURTS OF CRIMINAL JURISDICTION.
THE Court of Queen's Bench is the highest court in criminal cases within the realm. Its jurisdiction extends from high treason down to a breach of the peace; and this court may proceed on indictment for any offences removed by certiorari from inferior courts.
The commission of General Gaol Delivery is one directed to the judges themselves, the serjeants, Queen's counsel, and the clerk of assize and associate. The commission is the same on each circuit. It commands them, four, three, or two of them, of which number there must be at least one of the
COURTS OF CRIMINAL JURISDICTION.
judges and serjeants specified, and authorises them to deliver the gaol at a particular town and the prisoners in it. They are commanded to meet at a particular time and place, and the commission informs them that the sheriff is commanded to bring all prisoners before them. Every description of offence is cognizable under this commission.
The commission of OYER and TERMINER is one to inquire, hear, and determine into the truth of all treasons, felonies, and misdemeanors therein specially mentioned. The courts held in every county on the circuits, called the assizes, are held before the Queen's commissioners, among whom are usually two of the judges. The six circuits of England date back as far as the year 1176. The judges of assize now sit by virtue of five commissionsnamely, the Commission of the Peace, the Commission of Oyer and Terminer, the Commission of General Gaol Delivery, the Commission of Assize, and the Commission of Nisi Prius.
There are also the courts of sessions. These sessions are of four kinds-namely, Petty, Special, General, and Quarter Sessions. The General Quarter Sessions of the Peace is a court of record holden before two or more justices, one of whom must be of the quorum. This court, by statute 2 Henry V. c. 4, must be held four times every year, in every English county, and oftener if occasion require. This court, as far as respects its jurisdiction to hear and determine indictments, appears to owe its origin to the statutes 18 Edward III. c. 2, and 34 Edward III. c. 1.
PRINCIPALS AND ACCESSARIES.
Definition of Offences.
BEFORE We treat of indictments, it may be well to say something of those persons against whom an indictment lies, and then to give shortly a definition of the chief offences which are the subjects of indictments. An indictment lies against those who commit, procure, or assist in the commission of crimes, as well as against those who harbour offenders. All persons, save those exempted by the law itself, are liable to the penalties for disobedience of the law. The following are the exemptions:
INFANTS. Within the age of seven years no infant can be guilty of felony. Between the ages of seven and fourteen an infant is deemed primâ facie to be doli incapax; but this presumption may be rebutted by evidence of a mischievous discretion: indeed, it is said that an infant aged eight years may be indicted for murder, and hanged. There are instances on record of a child between eight and nine years being executed for arson, and a girl of thirteen years being executed for killing her mistress.
INSANE PEOPLE are not criminally responsible for their acts. Insanity may be divided into three kinds :
1. Dementia naturalis, idiocy or natural fatuity. According to Lord Coke, an idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals.
2. Adventitious insanity, or dementia accidentalis, which is either partial or total insanity.
3. Dementia affectata, or acquired madness. If the primary cause of the phrenzy be involuntary, this species of insanity will excuse the offender equally with the former species of this malady. If a person be subjected to the power of another, he is not responsible for his acts. Thus, if A. by force take the hand of B. in which is a weapon, and therewith kill C., A. is guilty of murder, but B. is excused. No threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel another to kill C., is a legal excuse. In general, if a felony be committed by a wife in the presence of her husband, she is presumed to have acted under his coercion, and is excused from punishment. This presumption may, however, be rebutted by showing that the wife voluntarily took an active part in the commission of the offence.
A PRINCIPAL is either the actual perpetrator of the crime, or a person present, aiding and abetting. In some cases, a man may be a principal without being present, as where poison is laid by a person not present when it is taken; and, generally, whenever murder is committed in the absence of the murderer, or of any other guilty party, by means prepared beforehand. A principal in the first degree is the actual perpetrator; a principal in