THE

Country Attorney's Practice

IN MATTERS ON THE

CROWN SIDE OF THE COURT OF QUEEN'S BENCH.

CHAPTER I.

CRIMINAL INFORMATION.

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Ex officio Informations-Criminal Informations--For what Offences-Affidavits to ground Motion for In the Case of Newspaper Libels-Notice of Motion against MagistratesWhen Motion to be made-Service of Rule Nisi-Moving to make it absolute-How motion disposed of-Filing Information-Recognizance-Proceedings to compel Defendant's Appearance-Where Defendant in Custody-Proceedings to obtain Sentence where Defendant suffers Judgment by default -Prosecutor's Proceedings where Defendant pleads-Trial, &c. How Prosecutor reimbursed his Costs where Defendant fined-When Prosecutor liable to Costs-DEFENDANT'S PROCEEDINGS-Showing Cause against a Rule Nisi-Enlarging Rule-Affidavits in Answer-Appearance-As to defending or suffering Judgment by Default-Affidavits in Mitigation→→ In what Cases Defendant entitled to Costs-To what Amount -When New Trial may be granted.

PROCEEDINGS of a criminal nature in the Court of Queen's Bench are either commenced there originally, or are removed thither from inferior Courts by writ of certiorari: they are commenced there originally either by information ex officio by the Attorneygeneral, or by criminal information, where the pro

secutor is a private person. The Attorney-general may by virtue of his office, and without leave of the Court, file an ex officio information, but this proceeding is only used in cases of a public nature, which the Attorney-general for the time being may as a government officer, think proper to take up; and therefore as those for whose use this work is intended are not likely to be ever engaged in the prosecution of such cases, it is not thought necessary to notice them further here than to mention, that the proceedings do not differ from those in the case of a criminal information, which will be presently described, except that before filing a criminal information, leave to do so must be obtained from the Court, which, as has been mentioned, is not necessary in the case of an ex officio information.

A criminal information (as contradistinguished to an ex officio information, though in strictness of language that is also a criminal information) is always filed at the instance of a private prosecutor; in form it is a statement or suggestion made to the Court by the Master of the Crown Office, that the defendant has been guilty of the alleged offence; formerly, the Master had a similar discretion as to filing criminal informations on the relation of private prosecutors, to what the Attorney-General has as to filing informations ex officio, but this power was liable to abuse; and previously to the revolution great exertions were made to get rid of it, and this was afterwards effected by the statute 4 & 5 W. & M. c. 18, which restrains the Master of the Crown Office from filing any information, without express direction from the Court of Queen's Bench. It has been thought proper to premise thus much that the reader may understand why it is necessary to move the Court for leave to file a criminal information.

A criminal (and indeed an ex officio) information can only be for a misdemeanour, and not for any higher offence; and the party promoting it is not obliged to resort to this method of prosecution, but

may, if he choose, indict the defendant, and therefore it is only resorted to in cases of some consequence, or where the character of the prosecutor is involved; and where the Court thinks the complaint is a slight one, or that the prosecutor is, in some degree, in fault, or that the defendant might as advantageously be indicted in the usual way, it will not grant leave to file the information, but leave the party who complains to proceed by indictment. A criminal information is generally promoted by a private person, for some offence by which he is specially aggrieved, and it is an invariable rule of the Court never to grant it, unless he, in his affidavit, shows that he is blameless and comes into Court with clean hands; for instance, if it be a libel he complains of, he must expressly, explicitly, and without equivocation, deny that the libellous statements are true, and if truth and falsehood be mixed up together in the libel, he must state the facts correctly, and deny the truth of the incorrect statements; if he complain of an assault which has taken place upon some fancied provocation, he must clearly state the facts with reference to the circumstance, as far as he knows them, so as to show that the provocation was only fancied, and he must deny that any insult or provocation was intended by him; and, in other cases, he must by his affidavit set himself right with the Court in like manner; this being requisite in the affidavits, it follows that they must contain the whole complaint intended to be stated in the information, for the Court will not permit any other complaint to be alleged in it besides that stated in the affidavits, for otherwise the rule which has been mentioned would, in many cases, be evaded.

A criminal information is perhaps more frequently moved for in cases of libel than any other, because a prosecutor's character being involved in such cases, the mode of proceeding by criminal informa tion affords him an early and a public opportunity of denying the charge upon oath; but it is also often

applied for in cases of assault, where the parties are in such a station of life that the insult intended by, or the disgrace consequent upon, the assault is a matter of more serious consideration than it would be in the case of parties moving in an inferior rank; also in cases where the defendant has attempted to provoke the prosecutor to fight a duel; also where the defendants have been guilty of a conspiracy against the character or property of a party; and, indeed, this mode of proceeding is occasionally adopted in all cases of misdemeanour, where the offence is either calculated to set a bad example publicly, or to inflict an injury privately, of such a nature as the Court may think proper to be taken cognizance of by this special mode of proceeding, in preference to the mode of proceeding by indictment; for in granting leave to file informations of this nature, the discretion of the Court is not only guided by the consideration of the nature of the offence, but also of the circumstances under which it was committed.

When it has been determined to proceed by criminal information, the first thing to be done is to prepare the affidavits on which the motion is to be made, they must be entitled "In the Queen's Bench,” but must bear no other title; as in other affidavits, the residence and addition of the deponents must be stated, and there must be no erasure, striking out, or interlineation in the jurat; and if there be any in the body of the affidavit, the commissioner must notice them by placing his initials in the margin; the offence the defendant is charged with, and the circumstances necessary to explain it, must be fully and explicitly stated; the affidavits may be made by any person or persons cognizant of the facts, but the prosecutor should not omit to state them in his affidavit where they are within his own knowledge, and he must always make an affidavit clearing himself from any imputations upon him connected with the transaction; and this is most important to be attended to, for if it should appear to the Court that this part of

his affidavit is not full, clear, explicit, and free from equivocation, they will either refuse a rule to show cause, or, if a rule have been granted, will discharge it, and probably with costs, when the defect in the affidavit is pointed out to them on the defendant showing cause.

The manner in which the offence is to be brought home to the defendant by the affidavits, must, of course, depend upon the circumstances of each particular case, but there is one of frequent occurrence: in which it will be proper to point out the mode by which this is to be done, and that is in the case of newspaper libels; in these cases the attorney should: desire his London agent (mentioning to him the correct title of the newspaper, and the purpose for which it is wanted) to obtain from the Stamp Office a certified copy of the declaration made and filed by the printer, publisher, and proprietors of the newspaper; this copy must be certified to be a truecopy by one of the Commissioners of Stamps and Taxes, or the officer in whose custody the original is kept, under his hand, and an affidavit must be made verifying the signature of the Commissioner. or officer to the certificate; this affidavit the agent must be requested to get made; it must then be ascertained that the title of the newspaper mentioned in the declaration corresponds substantially with the title of the newspaper in which the libel appeared,< and that the names of the printer and publisher, and the place of printing, in the declaration and in the newspaper, also substantially correspond; if they do (as under ordinary circumstances they will), the fact of the purchase of the paper need not, nor need any other circumstances to connect the defendants (supposing them to be the printer, publisher, or registered proprietors) with the publication be stated (statute 6 & 7 Will. IV. c. 76, s. 8), but the newspaper itself must be annexed to one of the affidavits, so as to bring it before the Court. the newspaper and the declaration do not corre

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