guilty of the crime of being found armed at night as aforesaid, it shall and may be lawful for such justice to admit such person or persons so charged to bail, and, in default of bail, to commit such person or persons to the county gaol until the next general quarter sessions of the peace, or the next general commission of gaol delivery, to be holden for the same county or place, there to be tried and dealt with as by this act is directed; and, if in Scotland, until such person or persons so charged shall be dealt with as any person or persons charged with a transportable offence may be dealt with according to the law and practice of Scotland. game, may III. And be it further enacted, that if any person or Persons persons shall, after the passing of this act, unlawfully found in any enter into or be found in any forest, chase, park, wood, at night, forest, &c. plantation, close, or other open or inclosed ground at night, with any according to the provisions of this act, with respect to what net, engine, shall be deemed night, for the purposes hereof, having any &c. for denet, engine, or other instrument, for the purpose, and with stroying the intent, to destroy, take, or kill, or shall wilfully de- be taken stroy, take, or kill game, it shall and may be lawful to and before a for the ranger and rangers, and to and for the owner and justice. owners, occupier and occupiers, of any such forest, chase, park, wood, plantation, close, or other open or inclosed ground, and also for his, her, or their keeper and keepers, servantand servants,and also for any other person or persons, to seize and apprehend, or to assist in seizing and apprehending, such offender or offenders, by virtue of this act, and, by the authority of the same, to convey and deliver such offender or offenders into the custody of a peaceofficer, who is hereby authorized and directed to convey such offender or offenders before some one of his majesty's justices of the peace for the county or place where such offence shall be alleged to have been committed, to be dealt with according to law. Note.-An indictment on this statute, for having entered into any forest, chase, &c., must, in some way or other, particularize the place, as by setting forth the name, ownership, occupation, or abuttals; for the offence is substantially local, and the defendant is entitled to know to what specific place the evidence is to be directed: R. v. Ridley, R. & R. 515. In the construction of the act it has been holden, that if several are together, and any one of them is armed, the others are liable to be convicted: R. v. William Smith and others, R. & R. 368; 5 Burn, 611. But, that if several are out together, and one has arms without the knowledge of the others, the others are not liable to be convicted under the act: R. v. Southern, id. 444. It will be observed, that this statute comprises " any forest, chase, park, wood, plantation, close, or other open or enclosed ground." The 3 Geo. 4, c. 114 (the hard-labour act), only mentions" any open or enclosed ground." It has been holden, however, that, upon a conviction under the 57 Geo. 3, of entering a wood with intent, &c., the court may pass sentence for hard labour, under the 3 Geo. 4, c. 114; R. v. Parkhurst, R. & R. 503. 510 PRISON BREACH. 1 Ed. 2, stat. 2, c. 1. Concerning prisoners which break prison, our lord the king willeth and commandeth, that none from henceforth that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause for which he was taken and imprisoned did require such judgment, if he had been convict thereupon according to the law and custom of the realm, albeit in times past it hath been used otherwise. Note.-As an actual breaking is the gist of this offence, it must be stated in the indictment; and, in order to bring the offender within the intention of this statute, the indictment must shew that he was lawfully in prison, and for such a crime as requires judgment of life or member; and it is not sufficient to say in general "that he feloniously broke prison:" 1 Russ. 381; 2 Inst. 591. If a person be taken upon a capias, awarded on an indictment against him for a supposed treason or felony, he is within the statute if he break the prison, whether any such crime were or were not committed by him, or any other person, for there is an accusation against him on record, which makes his commitment lawful, however innocent he may be. So, also, he will be within the statute if he be committed by a magistrate, under good grounds of suspicion 2 Inst. 590; 1 H. P. C. 610; 1 Russ. 378. With regard to the nature of the crime for which the party is committed, it is clear that, to make him guilty of felonious prison-breaking, the crime for which he is committed must be capital, at the time of such breaking: 1 Russ. 379. Therefore, if A. give B. a mortal wound, is committed to prison, and then breaks prison, and B. dies within the year, but after the prison-breaking, in this case, though the death has relation to the stroke, yet, because relations are but fictions, and fictions are not here intended, this escape is no felony: Cole's case, Plowd. Com. 401. To constitute the offence of prison-breach, there must be an actual breaking, and not such force only as may be implied by construction of law; therefore, if the party go out of prison without any obstruction, as in case of open doors, &c. he is guilty only of a misdemeanor, 1 H. P. C. 611; but there need not, it seems, be any actual intent to break, to constitute the offence. Where, therefore, it appeared that the prisoner made his escape from the house of correction, by tying two ladders together and placing them against the wall of the yard, and, in making his escape, had thrown down some of the bricks of the wall, this was held to be a sufficient breaking: R. v. Haswell, R. & R. 458. It may be observed, lastly, that the statute extends as well to a prison in law, as to a prison in deed: 2 Inst. 589. 511 PROCESS. 1. SUMMARY PROCESS. 2. PROCESS OF OUTLAWRY. 48 Geo. 3, c. 58. ny, for court may the party; Whereas the provisions contained in two acts of the 26th and 35th years of his present majesty's reign, for amending the law with regard to the course of proceeding on indictments and informations in the Court of King's Bench, in certain cases relating to the public revenue, have been found beneficial, and it is expedient to extend the same to other cases: be it therefore enacted, &c., that whenever When any any person shall be charged with any offence for which he person is charged or she may be prosecuted by indictment or information in with any his majesty's Court of King's Bench, not being treason or offence, not felony, and the same shall be made appear to any judge of being treathe same court by affidavit, or by certificate of an indict- son or feloment or information being filed against such person in the which he said court for such offence, it shall and may be lawful for may be such judge to issue his warrant under his hand and seal, by indictprosecuted and thereby to cause such person to be apprehended and ment or inbrought before him or some other judge of the same court, formation in or before some one of his majesty's justices of the peace, in K. B.; any order to his or her being bound to the king's majesty with judge of the two sufficient sureties, in such sum as in the said warrant issue his shall be expressed, with condition to appear in the said warrant to court at the time mentioned in such warrant, and to an apprehend swer to all and singular indictments or informations for any who shall such offence; and in case any such person shall neglect or be there. refuse to become bound as aforesaid, it shall be lawful for upon held such judge or justice respectively to commit such person to the common gaol of the county, city, or place where the charge, or offence shall have been committed, or where he or she shall on failure of have been apprehended, there to remain until he or bail, shall she shall become bound as aforesaid, or shall be dis- ted, &c. charged by order of the said court in term time, or of one of the judges of the said court in vacation; and the recognizance to be thereupon taken shall be returned and filed in the said court, and shall continue in force until such person shall have been acquitted of such offence, or, in case of conviction, shall have received judgment for the same, unless sooner ordered by the said court to be discharged; and, that where any person, either by virtue of such warrant of commitment as aforesaid, or by virtue of any writ of capias ad respondendum, issued out of the said court, is now detained or shall hereafter be committed to and detained in any gaol for want of bail, it shall be lawful for the prosecutor of such indictment or information to cause a copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol wherein such person is or shall be so detained, with a notice thereon to bail to answer the' be commit Party ac quitted, may be dis charged. indorsed, that unless such person shall, within eight days from the time of such delivery of a copy of the indictment or information as aforesaid, cause an appearance, and also a plea or demurrer, to be entered in the said court to such indictment or information, an appearance and the plea of not guilty will be entered thereto in the name of such person; and in case he or she shall thereupon for the said space of eight days after such delivery of a copy of the indictment or information as aforesaid, neglect to cause an appearance, and also a plea or demurrer to be entered in the said court, to such indictment or information, it shall be lawful for the prosecutor of such indictment or information, upon an affidavit being made and filed in the said court, of the delivery of a copy of such indictment or information, with such notice indorsed thereon, as aforesaid, to such person, or to such gaoler, keeper, or turnkey, as the case may be, which affidavit may be made before any judge or commissioner of the said court authorized to take affidavits in the said court, to cause an appearance and the plea of not guilty to be entered in the said court to such indictment or information, for such person; and such proceedings shall be had thereupon, as if the defendant in such indictment or information had appeared and pleaded not guilty, according to the usual course of the said court; and that if, upon the trial of such indictment or information, any defendant so committed and detained as aforesaid, shall be acquitted of all the offences therein charged upon him or her, it shall be lawful for the judge before whom such trial shall be had, although he may not be one of the judges of the said Court of King's Bench, to order that such defendant shall be forthwith discharged out of custody as to his or her commitment as aforesaid, and such defendant shall be thereupon discharged accordingly. Note.-Process is so denominated because it proceeds or issues forth in order to bring the defendant into court to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer: 1 Chit. Cr. L. 338. That proceeding, which is called a warrant before the finding of the bill, is termed process when issued after the indictment has been found by the jury: ib. and see Dalt. J.c. 193; Burn J. vol. 3, process. It appears now to be the established practice, independently of this statute, upon an indictment found for a misdemeanor at the assizes or sessions, to issue a bench warrant, signed by a judge or justices of the peace, or two of the latter, to apprehend the defendant; and, when the assizes and sessions are over, the clerk of assize and clerk of the peace respectively, will, on the application of the prosecutor, grant a certificate of the indictment having been found upon which any judge of the King's Bench, or justice of the peace of the proper county, will grant a warrant for apprehending the defendant, and will oblige him to enter into recognizance to answer, or for want of sureties will commit him: see 1 Chit. Cr. L. 339, and the various authorities there cited. 2. PROCESS OF OUTLAWRY. 5 Ed. 3, c. 11. "Item, where in times past some persons, appealed or indicted of divers felonies in one county, or outlawed in the same county, have been dwelling or received in another county, whereby such felonious persons indicted and outlawed have been encouraged in their mischief, because they may not be attached in another county; it is enacted, that the justices assigned to hear and determine such felonies, shall direct their writs to all the counties of England, where need shall be, to take such person indicted." 18 Ed, 3, c. 5. "Item, that no exigent shall from henceforth go out, in case where a man is indicted of trespass, unless it be against the peace, or of things which be contained in the declaration made in this case at the last parliament holden at Westminster." 25 Ed. 3, st. 5, c. 14. Item, it is accorded, that after any man be indicted of felony before the justices in their sessions, to hear and determine, it shall be commanded to the sheriff to attach his body by writ or by precept, which is called a capias: and if the sheriff return in the same writ or precept, that the body is not found, another writ or precept of capias shall be incontinently made, returnable at three weeks after; and in the same writ or precept it shall be comprised, that the sheriff shall cause to be seized his chattels, and safely to keep them till the day of the writ or precept returned: and, if the sheriff return that the body is not found, and the indictee cometh not, the exigend shall be awarded, and the chattels shall be forfeit, as the law of the crown ordaineth; but, if he come and yield himself, or be taken by the sheriff, or by other minister, before the return of the second capias, then the goods and chattels shall be saved. Note. At common law, in case of felony or treason, there was but one capias, and upon non inventus returned, an exigent was awarded; and so to the outlawry: 2 H. P. C. 194. This statute was evidently intended to increase the number of writs of capias, and thus to moderate the rigour of the law. But, as it extends not to treason, and as its provisions have been found in most cases im practicable, the common law process, in cases of treason and felonies, is still retained; the process consisting only of one capias and an exigent: 4 Bluc. Comm. 319. This seems, however, to be contradicted by the case of R. v. Yandall, 4 T. R. 524, from which it appears that it is usual to issue three writs of capias in all cases. |