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CHAPTER XIX.

OF PROCESS : AND HEREIN, OF CERTIORARI.

[WE are now to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it (a). We have hitherto supposed the offender to be in custody or else held to bail, before the finding of the indictment; in which cases, he is immediately after the finding, or as soon as convenience permits, to be arraigned thereon. But if he has fled or secretes himself so as to avoid the operation of the warrant; or if no warrant has ever been issued for his arrest, or at least no commitment to take his trial has taken place :-still an indictment may be preferred against him in his absence: since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court, to appear or be arraigned. For the indictment cannot be tried unless he appears: according to the rule of justice in all cases, and the express provision of statute 28 Edw. III. c. 3, in capital ones, that no man shall be put to death without being brought to answer by due process of law.]

In general, the process on an indictment is by writ of capias, where the person charged is not in custody, and in cases not otherwise provided for by statute (6). It is, also, the practice upon an indictment found during the assizes or sessions, to issue a bench warrant, to apprehend the defendant (c). And in certain cases, we have already seen, that a person against whom an indictment

(a) Vide sup. p. 344.

(6) 25 Edw. 3, c. 14; 2 Hale, P. C. 195; R. v. Yandell, 4 T. R. 521;

1 Chit. Cr. 440.

(c) 1 Chit. Cr. L. pp. 36, 339.

has been found or information filed for a misdemeanor, may be apprehended and held to bail by a warrant from a judge of the Queen's Bench, under the provisions of 48 Geo. III. c. 58, s. 1 (d). But process on indictment found, may now, under the provisions of a later statute, be by a justice's warrant, instead of suing out a capias, or bench warrant, or proceeding under the provisions of the Act of Geo. III. For by 11 & 12 Vict. c. 42, s. 3, it is enacted, that where an indictment shall have been found in any court of oyer and terminer, general gaol delivery, or general or quarter sessions of the peace, against any person then at large,-a certificate of the fact shall be granted by the proper officer to the prosecutor; and upon production thereof to any justice of the peace for the place where the offence is alleged in the indictment to have been committed, or in which the person indicted is or is suspected to be, the justice shall issue a warrant to apprehend such person, and cause him to be brought up to be dealt with according to law: and, upon its being proved that he is the person named in the indictment, shall, without further inquiry, commit him for trial, or admit him to bail. On the other hand, if the person against whom the indictment is found, shall be in prison for any other offence,-then, upon proof thereof, the justice shall issue his warrant to the gaoler, commanding him to detain such prisoner in custody, until by writ of habeas corpus he shall be removed therefrom, for the purpose of being tried upon the indictment, or until he shall be otherwise discharged by due course of law (e). (d) Vide sup. p. 345.

who has been held to bail, and he (e) In the particular case of a shall be then in the prison belongprisoner, ordered by the Queen's ing to the jurisdiction of the court Bench to be tried at the Central under warrant of commitment or Criminal Court, under 19 & 20 Vict. sentence for some other offence, the c. 16, he is to be removed to the court may, by order in writing, prison of that court without habeas direct the governor of such prison corpus or other writ. And so also

to bring him up to be arraigned by 30 & 31 Vict. c. 35, s. 10, where without a habeas. an indictment is found against one

Supposing, however, the defendant not to be found, so that his apprehension cannot be effected by any of the above means,-he is then liable, on his non-appearance to the indictment, to be outlawed (f ).

[The first process for this purpose in cases of treason or felony is a writ of capias; but in misdemeanors the process is less summary : for here there is, in the first place a writ of venire facias, 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 has no lands in his bailiwick, then, upon his non-appearance, a writ of capias shall issue ; and if he cannot be taken upon the first, a second and a third shall issue, called an alias and a pluries capias. And 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 successive sheriff's county courts; and a writ of proclamation shall also be issued (9); and if he be returned quinto exactus, 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, and his property is forfeited to the Crown (h). And outlawry for treason or felony

(f) Outlawry does not lie against a corporation, or a parish, or a hundred; nor against a peer, except for treason, felony, or breach of the peace; nor against an infant under fourteen. (1 Chit. Cr. L. 348.) In case of outlawry of a woman, she is said to be waived.

(9) 4 & 5 W. & M. c. 22, made perpetual by 7 & 8 Will. 3, c. 36,

8. 4. (See 30 & 31 Vict. c. 59).

(1) A defendant in a civil action is also liable, after judgment, to be outlawed, supposing him to abscond leaving the judgment debt unpaid. It may be noticed here, that nothing in the Felony Act, 1870 (33 & 3+ Vict. c. 23), whereby forfeiture is abolished as a consequence of a conviction for treason or felony,

[amounts to a conviction and attainder of the offence, as much as if the offender had been found guilty by his country (ë). His life is, however, still under the protection of the law, so that though antiently an outlawed felon was said to have caput lupinum, and might be knocked on the head, like a wolf, by any one that should meet him (k);— 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 (1), unless it happens in the endeavour to apprehend him (m): for any person may arrest an outlaw on a criminal prosecution,-either of his own head, or by writ or warrant of capias utlagatum, - in order to bring him in to be dealt with according to law.] It is further to be observed, that though an outlawry may be frequently reversed by plea, or by proceedings in error, according to the nature of the case (n), it is necessary that, in the case of felony, the defendant must for this purpose render himself into custody (o); whereupon he may then take any technical objection to the regularity of the process; and such objection, if allowed, will have the effect of reversing the outlawry, and enable the party accused to plead and defend himself against the indictment(p). In one instance, indeed, though the outlawry be regular, its consequences may still be avoided: for by 5 & 6 Edw. VI. c. 11, (which permits outlawry for treason to be awarded against persons residing abroad,)- if a person so outlawed shall, within one year, yield himself to the chief justice, and offer

“shall affect the law of forfeiture
consequent upon outlawry.” (Sect.
1.)

(i) 2 Hale, P. C. 205.
(k) Mirr. c. 4, s. 4; Co. Litt. 128.
(1) i Hale, P. C. 497.
(m) Bracton, 1. 3, tr. 3, c. 11.
(n) In a modern case, outlawry

on error was reversed, after the lapse of 116 years, for want of due proclamations having been made. (Tynte v. Reginam, 7 Q. B. 216.)

() Solomon v. Graham, 5 Ell. & BI. 320.

(p) Chit. Cr. L. 368, 369; 4 Bl. Com. 320.

to traverse the indictment, he shall be admitted so to do; and, being acquitted of the indictment, shall be discharged of the outlawry.

[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 are usually had, though they may also be had at any time before trial;or, as it seems, at any time before judgment is given, and even afterwards, where error does not lie (9);—to certify, and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction, into the Queen's Bench. For this is the sovereign's ordinary court of justice in causes criminal; and has consequently the power of issuing such writ to any court of rank subordinate to its own in causes of this description, unless the certiorari be taken away by the express words of some Act of Parliament. A certiorari removing the proceedings into the Queen's Bench is commonly granted for one of these four purposes: either, 1, to consider and determine the validity of an indictment, and the proceedings thereon, and to quash or confirm them as there is cause ; 2, where it is surmised that a partial or insufficient trial will probably be had in the court below, in order to have the person against whom it is found, tried at bar, or else before the justices of nisi prius, according to the course of a civil action (r); 3, in order to plead the royal pardon there; or, 4, in order to issue process of outlawry against the offender, in places where the process of the inferior court will not reach him (s). Such writ of certiorari, 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 indeed the

() i Chit. C. L. 380.

(r) 14 Hen. 6, c. 1; 6 Hen. 8, c. 6; 4 Rep. 43; 2 Hale, P. C. 41. Et

VOL. IV.

vide sup. p. 308.

(8) 2 Hale, P. C. 210.

CC

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