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[Queen'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; and the former was once entitled to demand it as a matter of right, though the application of the latter has always been dependent on the discretion of the court (u).] But now, by 5 & 6 Will. IV. c. 33, and 16 & 17 Vict. c. 30, S. 5, no certiorari shall issue at the instance of the prosecutor, or of any other person (except the attorney-general), without motion first made in the Queen's Bench, or before some judge thereof, and leave obtained, in the same manner as where application is made on the part of the defendant: and moreover, before the allowance of any writ of certiorari, the party on whose behalf it is applied for, must enter into a recognizance before a judge of the Queen's Bench or justice of the peace, in such sum and with such sureties as the court or judge may direct, and with such conditions as are contained in the previous statutes 5 & 6 W. & M. c. 11, and 8 & 9 Will. III. c. 33, passed in relation to the same subject(x). And by 16 & 17 Vict. c. 30, s. 4, it is enacted, that no indictments, except against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, shall be removed
(u) 4 Bl. Com. 321. In the exercise of this discretion, a certiorari has been seldom granted at the instance of the defendant, to remove indictments either from the justices of gaol delivery; or after issue found, or confession of the fact, in any of the courts below. (See Hawk. P. C. b. 2, c. 27, s. 27: R. v. Gwynne, Burr. 749; R. v. Kingston, Cowp. 283; R. v. Harrison, 1 Chit. Rep. 571.)
(x) By 5 & 6 Will. 4, c. 33, a recognizance was required only where the writ was obtained on the part of the defendant. But by 16 & 17 Vict.
c. 30, s. 5, it is also required from the prosecutor; and this last statute provides, moreover, for the payment of the costs incurred subsequent to the removal, either by the defendant or the prosecutor, according to the ultimate issue of the proceedings. As to the terms on which & certiorari will be granted, see The Queen v. Jewell, 7 Ell. & BI. 140. No recognizance on removal is required from the prosecutor, in the case of an indictment found at quarter sessions against a corporation. (See The Queen v. Manchester, 7 Ell. & BI. 463.)
into the Queen's Bench, or into the Central Criminal Court, either at the instance of the prosecutor or of the defendant (other than the attorney-general acting on behalf of the Crown,)-unless it be made to appear to the court from which the writ is to issue, 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 the satisfactory trial of the same.
Another Act (19 & 20 Vict. c. 16) contains provisions, of which some notice is proper in this place, with regard to the trial of offences, the indictment for which has been removed by certiorari into the Queen's Bench. 1. Whenever any indictment or inquisition has been so removed in the case of some felony or misdemeanor alleged to have been committed in a place out of the jurisdiction of the Central Criminal Court, the Queen's Bench (or a judge thereof in vacation) is empowered to order the trial thereof to be there tried nevertheless,- provided it shall appear expedient to the ends of justice that such course should be taken (y). 2. Wherever any person shall have been committed or held to bail for any such felony or misdemeanor, the Queen's Bench, or judge in vacation, if it shall appear expedient that the person charged shall be tried at the Central Criminal Court, may make an order to that effect (z); and thereupon a writ of certiorari shall be issued to the justices of oyer and terminer, or of the peace, or coroner, (as the case may require,) commanding them to certify and return to that court any indictment or inquisition which is then pending or shall thereafter be
(y) 19 & 20 Vict. c. 16, s. 1.
25 & 26 Vict. c. 65, a similar provision is made in refcrence to the trial of persons subject to the Mutiny Act, who are charged
with having committed murder or manslaughter out of the jurisdiction of the Central Criminal Court, ou persons subject to that Act.
found against such person (a). 3. Wherever a certiorari shall be delivered to any court for the purpose of removing an indictment or inquisition therefrom, any person charged thereby who shall then be in prison, shall not be discharged by such court, but shall remain there till discharged by due course of law (6).
[It is at this stage of the proceeding also-viz., after indictment found, and before arraignment—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 (c). And also, that in places of exclusive jurisdiction, as the two universities, indictments must be delivered up, on challenge and claim of cognizance, to the courts therein established by charter, and confirmed by Act of Parliament, to be therein respectively tried and determined (d).]
process upon informations, not much requires to be said. In general the course of proceeding is similar to that upon indictments: but the first process is by writ of subpæna instead of venire; and if the defendant does not appear on this, a capias is awarded(e). Supposing it to be necessary, however, to proceed to outlawry, the first process is by venire facias, as in the case of an outlawry upon an indictment for a misdemeanor, and not by subpæna(f ).
(a) 19 & 20 Vict. c. 16, s. 3.
(b) Sect. 11. See sects. 8, 9, 10, as to the recognizances required, (in cases of orders made, or writs of certiorari issued under this Act,) from the person charged, or the prosecutor, or witnesses, to take
their trial, prosecute or give evi-
(c) Vide sup. pp. 229, 302.
OF ARRAIGNMENT AND ITS INCIDENTS.
The appearance of the offender, (enforced by the methods pointed out in the last chapter, unless he appears voluntarily, or is already in custody,) must, in general be in person; though in indictments or informations in the Queen's Bench, for misdemeanors, an appearance by attorney is allowed (a). And in misdemeanors generally, in whatever court the proceedings are instituted, the trial of the defendant, after he has once appeared, is permitted to take place in his absence (6). Immediately on the appearance to an indictment, the offender is to be arraigned thereon; which is the next stage of criminal prosecution(c).
[To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (d). The prisoner is to be called to the bar by his name; and it is laid down in our antient books (e), that, even under an indictment of the highest
(a) By 19 & 20 Vict. c. 16, s. 6, it is provided that on application to the Queen's Bench for an order, that a person charged with an offence alleged to have been committed, out of the jurisdiction of the Central Criminal Court, shall nevertheless be there tried,-it shall not be necessary for the accused to be brought to appear in person before the Queen's Bench or judge to whom the application is made.
(6) 4 Bl. Com. 375; 1 Chit. Cr.
(c) Vide sup. p. 344.
(d) This word in Latin (says Sir M. Hale, vol. ii, p. 216) is no other than ad rationem ponere, (and in French ad reson, or abbreviated a resn,) that is, “to call to account."
(e) Bract. 1. 3, De Coron. c. 18, s. 3; Mirr. c. 5, ss. 1, 54; Flet. I. 1, c. 31, s. 1; Brit. c. 5; Staundf. P. C. 78; 3 Inst. 34; Kel. 10; 2 Hale, P. C. 219; Hawk. P. C. b. 2, c. 28,
[nature, he must be brought to the bar without irons, or any manner of shackles or bonds : unless there be evident danger of any 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(f).
On a charge of treason or felony, when the prisoner is brought to the bar, he is called upon by name to hold up his hand (9); which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de personâ; and he own himself to be of that name by which he is called (h). 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(i).
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.
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
(G) State Tr. iv. 230. And see Hawk. P. C. b. 2, c. 28, s. 1, n. (2); Waite's case, 1 Leach, C. C. 36.
(9) By 19 & 20 Vict. c. 16, s. 7, it is provided, that whenever any indictment or inquisition shall have been transmitted or removed to the Central Criminal Court under the provisions of that Act, the person
charged shall be thereon arraigned
() 2 Hale, P. C. 219.