laws of England for the punishment of offences; of which that by indictment is the most usual. (735) infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence. Although an appeal was thus in the nature of a prosecution for some atrocious injury committed more immediately against an individual, yet was one subject also anciently permitted to appeal another subject of high treason, either in the courts of common law (Britt. c. 22), or in parliament, or (for treasons committed beyond the seas) in the court of the high constable and marshal; and so late as 1631 there was a trial by battle awarded in the court of chivalry, on such an appeal of treason. (By Donald Lord Rea against David Ramsey. (Rushw. vol. 2, pt. 2, p. 112).) The appeal of high treason in the Courts of Common Law was virtually abolished (1 Hale, P. C. 349) by the stats. 5 Edw. 3, c. 9, and 25 Edw. 3, c. 24, and in parliament was expressly abolished by stat. 1 Hen. 4, c. 14. So that the only appeal afterwards in force was in respect of felony and mayhem done within the realm. An appeal of felony might have been brought for a crime committed either against the party himself, or his relations, ex. gr., for larceny, mayhem, and arson, committed against the party, and for the murder or manslaughter of his relation. But this could not have been brought by every relation: but only by the wife for the death of her husband, or by the heir for the death of his ancestor (Mirr. c. 2, s. 7). The appeal might have been brought previous to an indictment; and if the appellee were acquitted thereon, he could not have been afterwards indicted for the same of fence. If moreover the appellee were acquitted, the appellor (by virtue of the stat, of Westm. 2, 13 Edw. 1, c. 12) suffered one year's imprisonment, and paid a fine to the crown, besides restitution of damages to the party for the imprisonment and infamy which he had sustained; and, if the appellor were incapable to make restitution, his abettors were to do it for him, and also were liable to imprisonment. This provision, as was foreseen by the author of Fleta (1. 1, c. 34, s. 48) proved a great discouragement to appeals: so that thenceforward they ceased to be in common use. If the appellee were found guilty, he suf fered the same judgment as if he had been convicted by indictment, but with this remarkable difference; that on an indictment, the crown might pardon and remit the execution; on an appeal, being at the suit of a private subject, to make an atonement for the private wrong, the crown could not par. don it (2 Hawk. P. C. 392). Though the punishment of the offender might be remitted and discharged by the concurrence of all parties interested; and as the crown by pardon might frustrate an indictment, so the appel. lant by his release might discharge an appeal (1 Hale, P. C. 9), nam quilibet potest renunciare juri, pro se introducto." This latter kind of appeal was abolished by the 59 Geo. 3, c. 46, the last instance of an appeal of murder having occurred, A.D. 1818 (Ashton v. Thornton, 1 B. & Ald. 405). (735) "An indictment," as defined by Bishop, "is a written accusation, presented on oath by at least twelve of a grand jury, charging a person named therein with a crime which it specifically defines, and returned by the grand jury into court, where it becomes matter of record." 1 Bish. Cr. Proced., § 131. The mode of selecting the grand jurors, their qualifi cations, etc., are matters which to a great extent are regulated by statutes in the several States of the Union; and, as the statutes differ, those of the particular State should be consulted. The common-law rule that a grand jury for the transaction of business must consist of not over twenty-three persons, and not under twelve, is followed in most of the States. There are, however, exceptions; as to which see Com. v. Wood, 2 Cush (Mass.) 149; State v. Swift, 14 La. Ann. 827; People v. Roberts, 6 Cal. 214; State v. Hawkins, 5 Eng. (Ark.) 71; People v. Thurston, 5 Cal. 69. At common law more than twelve jurors need not concur in finding the indictment; nor need more than this number be actually present, or even have a nominal existence on the panel. State v. Clayton, 11 Rich. (S. C.) 581; Com. v. Sayers, 8 Leigh (Va.), 722; State v. Miller, 3 Ala. 343; State v. Symonds, 36 Me. 128; Hudson v. State, 1 Blackf. (Ind.) 317; Dowling v. State, 5 Sm. & M. (Miss.) 664; Norris v. State, 3 Greene (Iowa), 513. In the United States courts, and in most of the States, the foreman of the grand jury is selected by the court. In New England it is done by the jury themselves. The oath administered to the foreman is, in most of the States, substantially the same as it is in England. See 1 Whart. Cr. Law, § 466. Disqualification of grand jurors may be excepted to by two kinds of challenge, to the array and to the polls. Irregularities in selecting and impaneling the jury, which do not relate to the competency of individual jurors, can generally be objected to only by challenge to the array (Barney v. State, 12 Sm. & M. [Miss.] 68; Vanhook v. State, 12 Texas, 252); THE proceedings at a criminal trial, which next claim our attention, may be arranged under the following heads, viz. :-I. Process on the indictment; II. Arraignment and its incidents; III. Plea or demurrer; IV. The mode of trial; V. Jury Process; VI. The right of challenge; VII. The production and marshalling of evidence; VIII. The verdict; and IX. The sentence with its concomitants. We shall treat these heads seriatim in the order indicated. I. The indictment having been found by the grand jury, we are to inquire into the manner of issuing process for bringing in the accused to answer it. I. Process on If, indeed, the offender were in custody before the finding of the Indictment. indictment, he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he has fled, or secretes himself, or has not been bound over to appear at the assizes or sessions, 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 challenge to the polls is taken in case of some individual disqualification attaching to the particular juror. Id.; Bellair v. State, 6 Blackf. (Ind.) 104; Boles v. State, 24 Miss. 445; People v. Jewett, 3 Wend. 314; State v. Brooks, 9 Ala. 9. The grand jury constitute a part of the court, and are under its control. State v. Cowan, 1 Head (Tenn.), 280. Thus a grand juror may be punished as for a contempt of court. State v. Butler, 8 Yerg. (Tenn.) 83. See Penn. v. Keffer, Add. (Penn.) 290. And it has been held a misdemeanor and a high contempt in any individual acting as a volunteer to approach or communicate with the grand jury in reference to any matter which either is or may come before them. Com. v. Crans, 3 Penn. Law Jour. 442; 1 Whart. Cr. Law, § 507. A witness subpoenaed to give evidence to the grand jury is directed to appear, not before the grand jury, but before the court. State v. Butler, 8 Yerg. (Tenn.) 83. And if such witness is sworn in open court, though not in the immediate presence of the judge, or even in his temporary absence from the bench, it is good. Jetton v. State, 1 Meigs (Tenn.), 192; U. S. v. Reed, 2 Blatch. C. C. 435. In Connecticut witnesses may, however, be sworn in the grand jury room by a magistrate (State v. Fassett, 16 Conn. 457); and in some of the States the witnesses are sworn by the foreman. See State v. Green, 24 Ark. 591; Ayres v. State, 5 Cold. (Tenn.) 26; Jillard v. Com., 2 Casey (Penn.), 169. It is said that a witness may be indicted for perjury on account of false testimony before a grand jury, and that grand jurors are competent witnesses to prove the facts. See ante, note 61. But it seems that an affidavit of a grand juror will not be received to impeach or affect the finding of his fellows (State v. Baker, 20 Mo. 338; State v. Doon, R. M. Charlt 1; State v. Beebe, 17 Minn. 241; State v. McLeod, 1 Hawks [N. C.], 344), even for the purpose of showing how many were present when the bill was found, or how many voted in its favor. People v. Hulbut, 4 Denio, 133; State v. Fassett, 16 Conn. 457; State v. Oxford, 30 Texas, 428. But see Lowe's Case, 4 Greenl. (Me.) 439. As it regards a knowledge of the form, structure and material parts of an indictment, recourse must be had to works on criminal law and criminal procedure, which should be consulted in connection with the statutes on the subject of the particular State. An indictment is said to derive its validity from the indorsement of the grand jury “A true bill," over the signature of their foreman. Keithler v. State, 10 Sm. & M. (Miss.) 192, 235. And it is not legally essential to the validity of the indictment that it be signed by the pub. lic prosecuting attorney (id.; Epps v. State, 10 Texas, 474; Ward v. State, 22 Ala. 16; Thomas v. State, 6 Mo. 457), unless made essential by statute, as it is in some of the States. See Baldwin v. State, 12 Ind. 383; Craft v. State, 3 Kansas, 450; State v. Salge, 2 Nev. 321; State v. Evans, 8 Humph. (Tenn.) 110; Teas v. State, 7 id. 174; Reynolds v. State, 11 Texas, must issue to bring him into court; for the indictment cannot be tried, unless the defendant personally appears: according to the rules of equity in all cases, and the express provision of statute 28 Edw. 3, c. 3, in capital ones, that no man shall be put to death, without being brought to answer by due process of law. The ordinary method of compelling the appearance of a* defend[* 415 ] ant against whom an indictment has been found, is now provided by the statute 11 & 12 Vict. c. 42, s. 3. It enacts, that where an indictment has thus been found in any court of oyer and terminer or general gaol delivery, or of general or quarter sessions of the peace, against a person still at large, whether such person has been bound by recognizance to appear to answer to the same or not, the clerk of indictments or clerk of the peace, as the case may be, at such court or sessions, shall at any time after the end of the then sessions, upon application of the prosecutor, or on his behalf, if such person shall not have already appeared and pleaded to the indictment, grant to the prosecutor a certificate of such indictment having been found; and upon production of such certificate to a justice of the peace for the county, or place in which the offence is in such indictment alleged to have been committed, or in which the person indicted shall reside or be, or be supposed or suspected to reside or be, such justice shall issue his warrant to apprehend the defendant, and to cause him to be brought before him, to be dealt with according to law. The section further provides that if the defendant be thereupon apprehended and brought before such justice, he shall, upon proof that the person so apprehended is the person charged and named in such indictment, without further inquiry or examination, commit him for trial, or admit him to bail. Provisions are contained in this same statute for the backing of the justice's warrant when necessary (a), and for the detention of the accused until he can be removed by writ of habeas corpus, if confined in prison for any offence other than that charged in the indictment at the time of application being made to the justice (b). Irrespective of the above ordinary procedure, the proper process for compelling the appearance of a defendant against whom an indictment for misdemeanor has been found, is by writ of venire facias, which is in the nature *of a summons to cause the party to appear. And if the return to [*416] such venire sets forth that the party has 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 ad respondendum 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 a third shall issue, called an alias, and a pluries capias. Though on indictments for treason or felony, a capias is the first process. A bench warrant will also be granted, signed by a judge at the assizes, or by two justices at sessions, to arrest a defendant against whom an indictment for misdemeanor has been found (c). And by the stat. 48 Geo. 3, c. 58, s. 1, when any person is charged with an offence below the degree of felony, a judge may, on an affidavit thereof, or on certificate of an indictment or an information having been filed, issue his warrant for apprehending the defendant and holding him to bail; in default of finding which, he may be committed. (a) S. 11. (b) S. 3. (c) 1 Chitt, Cr. L. 339. Outlawry. Where the person against whom an indictment, whether for felony or misdemeanor has been found, absconds, or cannot be apprehended by warrant, and it is thought proper to pursue him to outlawry, great exactness is necessary. For, in such case, after the several writs already mentioned have issued in a regular number, according to the nature of the crime, without effect, a writ of exigent will be awarded against the offender in order to his outlawry; that is, he will be exacted, proclaimed, or required to surrender, at five county courts; 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 incapa[* 417] ble of taking the benefit of it in any respect, either by bringing a civil action or otherwise. The punishment for outlawry upon an indictment for a misdemeanor, is the same as for outlawry in a civil action (of which we spoke in the preceding Book (d)); 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 (e). His life is, however, still under the protection of the law, as formerly observed (ƒ): so that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one who should meet him (g); 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 has been holden that no man is entitled to kill him wantonly or wilfully; but, in so doing is guilty of murder (h), unless it happens in the endeavour to apprehend him (i). For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ of warrant of capias utlagatum, in order to bring him to execution. Outlawry may, however, be reversed by writ of error; and the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial, 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. (736) Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is, that the writ of certiorari facias, of which we before* spoke (k), is usually had (7), to certify Certiorari. [*418] and remove the indictment, with all the proceedings thereon, from an inferior court of criminal jurisdiction into the court of queen's bench; which is the sovereign ordinary court of justice in causes criminal. (737) (d) Ante, vol. iii. (e) 2 Hale, P. C. 205. (f) Ante, p. 211. (g) Mirr. c. 4, s. 4; Co. Litt. 128. (h) 1 Hale, P. C. 497. (2) Bracton, fol. 125. (k) Ante, p. 341. () By stat. 6 Geo. 3 & 1 Will. 4, c. 4, s. 4, the certiorari may be applied for before indictment found for a misdemeanor. (736) Outlawry is unknown in the United States. (737) As to the form of the writ of certiorari, and the course of proceedings under it, see O'Leary v. People, 4 Park. 187; People v. McCormack, id. 9; Stephens v. People, id. 396; State v. Gustin, 2 South. (N. J.) 744. The writ is directed to one having the custody or control of the record; and a return by any other person is a nullity. Com. v. Franklin, 4 Dall. (Penn.) 316; State v. Howell, 4 Zabr. (N. J.) 519. The inferior court has no power to decline obedience to the writ. State v. Hunt, 1 Coxe (N. J.), 287. A transcript of the record only is sent up; not the record bodily. Nicholls v. State, 2 South. (N. J.) 539. And this is frequently done 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: 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 bar, or before the justices of nisi prius: or, 3. It is so removed, in order to plead there a pardon from the crown: or, 4. To issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not reach him (m). 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 the court of 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; though it is in the discretion of the court to grant or refuse the writ (n). Costs, moreover, are now payable by the defendant or the prosecutor in case respectively of conviction or of acquittal incurred subsequent to the removal of the indictment (0). At this stage of prosecution also it is, that an indictment found by the grand jury against a peer must in* consequence of a writ of certiorari [* 419] be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain (p); 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. Il. 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 II. Arraignment, proper court, he is immediately to be arraigned thereon; which and its incidents. is the fifth stage of criminal jurisdiction. To arraign (9) is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (r). The prisoner is to be called to the bar by his name; and it is laid down in our ancient books (s), that 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. And although, 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 (t); and although 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 (u); yet the law upon this point seems to be as first stated. (m) 2 Hale, P. C. 210. (n) 5 & 6 Will. 4, c. 33, s. 1; 5 & 6 Will. & M. c. 11, s. 2; 16 & 17 Vict. c. 30, s. 4, cited ante, p. 341; Reg. East. T. 1852. (8) Bract. 1. 3, de Coron. c. 18, s. 3; Mirr. c. (0) 16 & 17 Vict. c. 30, s. 5; 5 & 6 Will. 4, 5, s. 1, § 54; Flet. 1. 1, c. 31, s. 1; Britt. c. 5; c. 33, s. 2. (p) Ante, p. 336. (q) This word in Latin (Lord Hale says) is no other than ad rationem ponere, and in VOL. II. 76 Staundf. P. C. 78; 3 Inst. 34. See also 2 (t) St. Tr. xvi. 97. (u) Waite's Case, Leach, 36. |