The proper process on an indictment for any petit misdemeanor, or on a penal statute, is a writ of venire facias, (1) which is in the nature of a summons to cause the party to appear. And if by the return to such venire it appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick, (then, *319] upon his non-appearance,) a writ of capias (2) *shall issue, which commands the sheriff to take his body and have him at the next assizes; and if he cannot be taken upon the first capias, a second and third shall issue, called an alias(3) and a pluries capias. (4) But on indictments for treason or felony a capias is the first process; and for treason or homicide only one shall be allowed to issue, (a) or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable. (b) And so, in the case of misdemeanors, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant. (5) But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary; for, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry: that is, he shall be exacted, proclaimed, or required to surrender at five county courts; and if he be returned quinto exactus, (6) and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law, so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise.

The punishment for outlawries upon indictments for misdemeanors is the same as for outlawries upon civil actions, (of which, and the previous process by writs of capias, exigi facias,(7) and proclamation, we spoke in the preceding book,)(c) viz., forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country. (d)(8) His life is, however, still under the protection of (a) See Appendix, 21. (c) See book iii. pages 283, 284. (d) 2 Hal. P. C. 205.

(b) 2 Hal. P. C. 195.

(1) [That you cause to come.]

(2) That you take.]

(3) [As formerly.]

(4) [As more than once.]

(5) Now, by the 48 Geo. III. c. 58, when any person is charged with an offence below the degree of felony, one of the judges may, on an affidavit thereof, or on the production of an indictment, or an information filed, issue his warrant for apprehending and holding him to bail; and if he neglects or refuses to become so bound, he may be committed to gaol until he conforms or is discharged.-CHITTY.

By the statute 11 & 12 Vict. c. 42, s. 3, when any indictment is found in any court of oyer and terminer or gaol-delivery, or in any court of general or quarter sessions, against any person at large, whether he has been previously bound by recognizance to appear or not, the clerk of indictments, or clerk of the peace, as the case may be, may at any time issue a certificate of such indictment having been found; and, upon its production, a justice for the county or place where the offence was committed, or where the defendant resides, may issue his warrant, and thereupon commit him for trial or admit him to bail. -STEWART.

(6) [Required the fifth time.]

(7) [That you cause to be required.]

(8) In most cases now in which a person convicted by a verdict is deprived of clergy, a person outlawed will also be ousted of clergy; yet some few instances may perhaps still remain where a person outlawed will have clergy, though if he had been tried for the

the law, as hath formerly been observed; (e) so that, though an- [*320 ciently an outlawed felon was said to have caput lupinum, (9) and might be knocked on the head like a wolf by any one that should meet him, (f) because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him, yet now, to avoid such inhumanity, it is holden that no man is entitled to kill him wantonly or wilfully, but in so doing is guilty of murder, (g) unless it happens in the endeavor to apprehend him; (h) for any person may arrest an outlaw on a criminal prosecution, either of his own head or by writ or warrant of capias utlagatum, (10) in order to bring him to execution. But such outlawry may be frequently reversed by writ of error, the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial; and if any single minute point be omitted or misconducted, the whole outlawry is illegal and may be reversed, upon which reversal the party accused is admitted to plead to and defend himself against the indictment. (11)

Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is that writs of certiorari facias(12) are usually had, though they may be had at any time before trial, to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king's bench, (13) which is the sovereign ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes: either, 1. To consider and determine the validity of appeals or indictments, and the proceedings thereon, and to quash or confirm them as there is cause; or, 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the court of king's bench, (14) or before the justices of nisi prius;(15) or, 3. It is so removed in order to plead the king's pardon there; or, 4. To issue process of outlawry against the offender in those *counties or places [*321 where the process of the inferior judges will not reach him. (i) Such writ of certiorari, (16) when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal, unless the court of

(e) See page 178. (f) Mirr. c. 4.

Co. Litt. 128.

(9) 1 Hal. P. C. 497.

(h) Bracton, fol. 125.
(i) 2 Hal. P. C. 210.

same offence he would not have been entitled to that privilege. See Foster, 358. 2 Leach, Hawk. 481. 4 T. R. 543.-CHRISTIAN.

(9) [A wolf's head.]

(10) [That you take the outlaw.]

(11) By the common law, one is an outlaw who has been so declared by a court of justice, in some regular proceeding for that purpose; and this could take place in either a civil or a criminal proceeding. Dale County v. Gunter, 46 Ala. 118, 138 (1871).

(12) [That you cause to be informed of.]

2

(13) For the definition and history of the writ of certiorari, see Fitz. N. B. 554. As the court of King's Bench has a general superintendence over all other courts of criminal jurisdiction, so it may award a certiorari to remove proceedings from them, unless they are expressly exempted from such superintendence by the statutes creating them. Hawk. P. C. 286. Rex v. Young, 2 T. Ř. 473. Rex v. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express negative, words, (Rex v. Reeve, I W. Bla. 231;) and a statute taking away certiorari does not take it from the crown, unless expressly mentioned. Rex v. 2 Chitt. R. 136; and see Rex v. Tindal, 15 East, 339, n. Čertiorari lies from the court of King's Bench to justices, even in cases which they are empowered finally to hear and determine. 2 Hawk. P. C. 286. Rex v. Morely, 2 Burr. 1040. Hartley v. Hooker, Cowp. 524.-CHITTY.

(14) State v. Sluder, 8 Ired. (N. C.) 487, 490 (1848).

(15) [Unless before.]

(16) [To be informed of.]

king's bench remands the record to the court below, to be there tried and determined. A certiorari may be granted at the instance of either the prosecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined or confession of the fact in any of the courts below. (k) (17)

At this stage of prosecution also it is that indictments found by the grand jury against a peer must, in consequence of a writ of certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter and confirmed by act of parliament, to be there respectively tried and determined.

*322]

CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

*WHEN the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution. (1)

To arraign (2) is nothing else but to call the prisoner to the bar of the

(k) 2 Hawk. P. C. 287. 4 Burr. 749.

(17) But, by statute 5 & 6 W. IV. c. 33, S. I, it was enacted that no certiorari should issue to remove any indictment or presentment into the King's Bench from any court of sessions, assize, oyer and terminer, and gaol-delivery, or any court, at the instance of the prosecutor or any other person, (except the attorney-general,) without motion first made in the King's Bench or before some judge of that court, and leave obtained in the same manner as where the application was made by the defendant. And now, by statute 16 Vict. c. 30, s. 4, no indcitment, except indictments against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, can be removed into the court of Queen's Bench or into the Central Criminal Court by writ of certiorari, either at the instance of the prosecutor or of the defendant, (other than the attorneygeneral acting on behalf of the crown,) unless it be made to appear to the court from which the writ is to issue, by the party applying for the same, that a fair and impartial trial of the case cannot be had in the court below, or that some question of law of more than usual difficulty and importance is likely to arise upon the trial, or that a view of the premises in respect whereof any indictment is preferred, or a special jury, may be required for its satisfactory trial. If the indictment be removed at the instance of the defendant, he must enter into a recognizance to pay costs if convicted; and so, on the other hand, if the indictment be removed at the instance of the prosecutor, he must enter into a recognizance to pay costs in the event of the defendant being acquitted.-STEWART. For cases in which this unit has been issued to some inferior court to remove before trial a cause pending there, see People v. Runkle, 6 Johns. (N. Y.) 334 (1810). Nicols v. State, 5 N. J. 539 (1819). State v. Canal Co., 13 N. J. 192 (1832). State v. Studer, 8 Ired. 487 (1848). Kendrick v. State, Cooke (Tenn.) 474. In Vermont it has never been the practice to bring cases from the inferior courts into the supreme court for trial, which is the principal use of the writ of certiorari, in England, where it is more generally confined to criminal proceedings. Woodstock v. Gallup, 2 Williams, 587, 591 (Vt. 1856).

(1) An arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment. People v. Bradner, 107 N. Y. (62 Sickels) 1,9 (1887). A formal arraignment of one charged with a criminal offence may not be indispensable to the regularity of a conviction. State v. Hughes, I Ala. 655, 657 (1840).

(2) This word in Latin (lord Hale says) is no other than ad rationem ponere [To place to account], and in French, ad reson [To call to account], or, abbreviated, ad resn. 2 Hal. P. Č. 216.-CHRISTIAN. See Binns' Justice, 10 ed. 68.

court, to answer the matter charged upon him in the indictment. (a)(3) The prisoner is to be called to the bar by his name; and it is laid down in our ancient books(b) that, though under an indictment of the highest nature, he must be brought to the bar without irons or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons. But yet, in Layer's case, A. D. 1722, a difference was taken between the time of arraignment and the time of trial; and accordingly the prisoner stood at the bar in chains during the time of his arraignment. (c)(4)

*When he is brought to the bar, he is called upon by name to hold [*323 up his hand; which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona, (5) and he owns himself to be of that name by which he is called. (d)(6) However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well: therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient. (e)

Then the indictment is to be read to him distinctly in the English tongue, (which was law even while all other proceedings were in Latin,) that he may fully understand his charge. After which it is to be demanded of him whether he be guilty of the crime whereof he stands indicted, or not guilty. (7) By the old common law the accessary could not be arraigned till the principal was attainted, unless he chose it: for he might waive the benefit of the law; and therefore principal and accessary might, and may still, be arraigned, and plead, and also be tried, together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these cases could not be arraigned; for non constitit (8) whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessary should be convicted one day and the principal acquitted the next, which would be absurd. (9) However, this absurdity could only happen where it was possible that a trial of the principal might be had subsequent to that of the accessary; and therefore the law still continues that the accessary shall not be tried so long as the principal remains liable to be tried hereafter. But, by statute *1 Anne, c. 9, if the principal [*324 be once convicted, and before attainder (that is, before he receives

(a) 2 Hal. P. C. 216.

(b) Bract. l. 3, de coron. c. 18, 23. Mirr. c. 5, sect. 1,254. Flet. l. 1, c. 31, 31. Britt. c. 5. Staundf. P. C. 78. 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219. 2 Hawk.

(3) See Basset's Crim. Plea. 199. Ohio St. 344, 347 (1865).

P. C. 308.

(c) State Trials, vi. 230.
(d) 2 Hal. P. C. 219.
(e) Raym. 408.

(4) And it has since been held that the court has no authority to order the irons to be taken off till the prisoner has pleaded and the jury are charged to try him. Waite's case, Leach, 34.-CHRISTIAN. To require a prisoner during the progress of his trial to appear and remain with chains and shackles upon his limbs without evident necessity as a means of securing his presence for judgment, is a violation of the common law rule and of the thirteenth section of the Criminal Practice Act. People v. Harrington, 42 Cal. 165, 169 (1871). If a prisoner is brought into court in irons, he is entitled to have them removed whilst actually on trial. State v. King, 1 Mo. App. 438, 441 (1876). I Waterman's Crim. Prac. 350.

(5) [There is evidence of the person.]

(6) See The State v. Hughes, 1 Ala. (Judges) 655, 657 (1840). Drier v. Com., 89 Va. 529, 530 (1893).

(7) State v. York, 37 N. H. 175, 179 (1858).

(8) [It was not evident.]

(9) 2 Barb. Crim. Law, 3 ed. 624.

judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases in which no subsequent trial can be had of the principal, the accessary may be proceeded against as if the principal felon had been attainted; for there is no danger of future contradiction. (10) And upon the trial of the accessary, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice, (f) that the accessary is at liberty (if he can) to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law. (11)

When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraignment; or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment,—of standing mute, or confession.

I. Regularly, a prisoner is said to stand mute when, being arraigned for treason or felony, he either, 1. Makes no answer at all; 2. Answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise; or, 3. Upon having pleaded not guilty refuses to put himself upon the country. (g) If he says nothing, the court ought, ex officio, (12) to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei.(13) If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty. (h) (14) But whether judgment of death

(f) Fost. 365, etc.
(g) 2 Hal. P. C. 316.

(h) 2 Hawk. P. C. 327.

I

(10) And now, by the 11 & 12 Vict. c. 45, s. I (now superseded by the 24 & 25 Vict. c. 94, 21 and 3, which provide substantially as section 1 of this act) an accessary before the fact to any felony may be indicted, tried, convicted, and punished in all respects as if he were a principal felon; and an accessary after the fact to any felony may be indicted and convicted either as an accessary after the fact to the principal felony with the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice.-STEWART.

(II) See the 7 Geo. IV. c. 64, by sect. 9; see State v. Yancy, 3 Brev. (S. C.) *306, 307 (1813); of which accessaries before the fact, whether in cases of felony at common law, or by virtue of any statute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be committed on the seas or abroad, and, if the offences be committed in different countries, may be tried in either.

By sect. 10, accessaries after the fact may be tried by any court having jurisdiction over the principal felons, as in the preceding section; and, by sect. 11, in order that all accessaries may be convicted and punished in cases where the principal felon is not attainted, it is enacted that accessaries may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further, as to arraignment, I Curw. Hawk. P. C. 434. I Chitt. C. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64.-CHITTY. But now see the statute Vict. supra.

In Indiana, where an accessary to a crime is tried before the principal, and found guilty; but before judgment the principal is tried and acquitted, the accessary is entitled to be discharged. McCarty v. State, 44 Ind. 214, 217 (1873).

(12) [Officially.]

(13) [By the visitation of God.]

But the

(14) By 7 and 8 Geo. IV. c. 28, s. I, where the prisoner pleads "Not guilty," without nore, he shall be put on his trial by jury; and, by sect. 2, if he refuses to plead, the court may order a plea of "Not guilty "to be entered, and proceed as in other cases. latter is discretionary; and where there is any real doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, empanel a jury to try that question. In cases of insanity this is specially provided for by the unrepealed statute