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offence against the public. This method of prosecution is seldom resorted to, owing to the great nicety required in conducting it.
Pecuniary Recompense for Crime. This private process for punishing public crimes, had its origin at a time, when a private pecuniary satisfaction called a weregilu, was constantly paid to the party injured, or his relations, to expiate enormous offences. The custom was derived from the ancient Germans. Also, by the Irish Brehon law, in case of murder, the brehon or judge used to compound between the murderer and the prosecutors, who were frequently the near relatives of the deceased; by causing the malefactor to give to the child or wife of the deceased, or other relatives, a recompense, which was called an eriach. In our Saxon laws, we find the several weregilds for homicide, rated from the death of a ceorl or peasant, up to the king. In the laws of Henry I, other offences are mentioned, redeemable by weregilds. When the offences became no longer redeemable, the private process was still continued, to inflict punishment on the offender; though the party injured was allowed no pecuniary compensation for the offence.
Most Appeals Abolished. Though appeals were thus in the nature of prosecutions for some atrocious injury against an individual, yet it was also permitted, that any subject might charge, by appeal, another subject of high treason. At present, however, the only appeals, now in force, for things done in the realm, are appeals of felony and mayhem.
Appeal of Felony. An appeal of felony may be brought, for crimes committed either against the parties themselves or their relatives. The crimes against the parties themselves are larceny, rape and arson ; and for these, as well as for mayhem, the parties robbed, ravished, maimed, or whose houses are burned, may institute this private process. The only crime against one's relatives, for which an appeal can be brought, is that of killing them, by either murder or manslaughter. But this can only be brought by certain relatives ; by the wife for the death of her husband, or by the heir male for the death of his ancestor. If the wife, however, marries pending the action, she is estopped ; and if she marry after judgment, she cannot have execution. The heir must be the heir male, and next in succession. To this rule, there are three exceptions: (1) If the person killed leaves an innocent wife, she only, and not the heir shall have the appeal. (2) If there be no wife, and the heir be accused of the murder, the person who next to him, would have been the heir male, shall bring the appeal. (3) If the wife kills her husband, the heir may appeal her of the death. All appeals of death must be sued within a year and a day after the death of the party.
Estoppel of Appeal. These appeals may be brought previous to any indictment; and if the appellee be acquitted, he cannot afterwards be indicted for the same offence. Under the Gothic law, if an offender gained a verdict, when prosecuted by the party injured, he was deemed also acquitted of any crown prosecution for the same offence; but on the contrary, if hemade his peace with the king, still he might be prosecuted at the suit of the party. And so with us; if a man be acquitted or fonnd guilty on an indictment of murder, and be pardoned by the king, still he ought not to go at large till the year and day be past, in order to answer any appeal for the same felony, not having as yet been punished for it; though he had been found guilty of manslaughter on an indictment, and has had the benefit of of clergy, and suffered the judgment of the law, he cannot afterwards be appealed, for it is a maxim of law "nemo bis punitur pro eodem delicto."
Before this statute was made, it was not usual to indict for homicide within the time limited for appeals, which caused much inconvenience.
Appellee Acquitted. If the appellee be acquitted, the appellor shall suffer one year's imprisonment, and pay a fine to the king ; besides restitution to the party for imprisonment and infamy sustained. If the appellor cannot do this, his abettors shall do it for him, and also be liable to imprisonment. This provision caused appeals to fall into disuse.
Appellee Convicted. If the appellee be found guilty, he shall suffer the same judgment, as if he had been convicted by indictment; but with this difference, that on an indictment, which is at the suit of the king, the king may pardon and remit the execution ; but the king cannot pardon on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong. When a weregild was paid as a fine for a homicide, it could not be remitted by the king. The ancient usage, as late as the reign of Henry IV, was, that all relatives of the slain should drag the appellee to the place of execution; a custom founded in the savage spirit, which prevailed throughout Europe, after the irruption of the northern nations. However, the punishment of the offender may be remitted by the concurrence of all parties interested. CHAPTER XXIV.-PROCESS UPON INDICTMENT.
Fugitive from Justice, Where the offender is a fugitive, or has secreted himself to avoid arrest in capital cases; or in misdemeanors, has not been bound over to appear at the assizes or sessions, an indictment may be preferred against him in his absence; since, even were he present, he could not be heard before the grand jury. If it be found, process must issue to bring him into court, for the indictment cannot be tried, unless he personally appears. In capital cases, no man shall be put to death, without being brought to answer by due process of law.
Venire Facias. The proper process on an indictment for any petit misdemeanor, or on a penal statute, is a writ of venire facias, which is in the nature of a summons to appear. And if, by the return thereto, it appears 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.
Capias. But if the sheriff returns, that he has no lands in his bailiwick, then upon his non-appearance, a writ of capias shall issue, commanding the sheriff to take his body, and have him at the next assizes. If he cannot be taken on the first capias, a second and a third shall issue, called respectively an alias and a pluries capias. But on indictments for treason or felony, a capias is the first process, and for treason or homicide, only one shall issue, or two in the case of other felonies, though the usage is to issue but one in any felony. And so, in the case of misdemeanors, it is now the usual practice for a judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant.
Process of Outlawry. But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary. For in such case, after the several writs have issued, 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 proclaimed to surrender, at five county courts, and if he be returned quinto exactus, and does not appear at the fifth 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.
Punishment of an Outlaw. The punishment for outlawry upon an indictment for a misdemeanor, is the same as for outlawries upon civil actions, 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, just as if the offender had been found guilty by a jury. His life, however, is still under the protection of the law, 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 ; because having renounced all law, he was to be dealt with, as in a state of nature, when any one finding him might slay him. Yet now, no man shall wilfully slay an outlaw; but in so doing, is guilty of murder, unless the act be done in the effort to apprehend him. Any one may arrest an outlaw on a criminal prosecution, either on his own responsibility or by warrant of capias uilagatum.
Outlawry Reversed. The proceedings in outlawry being extremely technical, are frequently reversed on error, and if any single point be omitted or misconducted, the whole outlawry is illegal; upon which reversal, the party accused may plead to the indictment.
Certiorari Facias. Pending proceedings, writs of certiorari facias are usually had, to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king's bench; which is the sovereign's ordinary court of justice in criminal causes. This is done for four purposes :
(1.) To consider and determine the validity of appeals or indictments and the proceedings thereon, and to quash or confirm them for cause.
(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 defendant tried at the bar of king's bench, or before the justices of nisi prius.
(3.) It is so removed, in order to plead the king's pardon there.
(4.) To issue process of outlawry against the offender in those counties, where the process of the inferior judges will not reach him.
Effects of Certiorari. Such writ of certiorari, when issued and delivered to the inferior court for removing any record or proceeding, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal, unless the court of king's bench remands the record to the court below, to be there tried and determined.
When Granted. A certiorari may be granted at the instance of either the prosecutor or the defendant; the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol-delivery, or after issue joined, or confession of the fact in any of the courts below. Indictments found by the grand jury against a peer must, by certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward. In places of exclusive jurisdiction, as the two universities, indictments must be delivered to the courts therein established by charter, to be tried.
CHAPTER XXV.-ARRAIGNMENT AND ITS INCIDENTS.
Defined. When the offender appears voluntarily to an indictment, or has previously been in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned. To arraign, is to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.
Prisoner's Hand Uplifted. The prisoner is called to the bar by name, and is to be free from fetters, unless there be evident danger of an escape; when he may be secured by irons. He is then told to hold up his hand; thereby admitting the name by which he is called. This form is, however, not indispensable, for being intended merely to identify the person, any other acknowledgement will suffice; hence, if the prisoner refuses to raise his hand, but confesses to be the person named, this will answer.
Pleads Guilty or Not Guilty. Then the indictment is read to him distinctly in English, which was done, even when all other proceedings were in Latin, that he may fully understand the charge. He is then asked, whether he is guilty or not guilty of the crime, whereof he stands indicted.
Trial of Accessories. By the old common law, the accessory could not be arraigned till the principal was attainted,