BOOK 4, CHAPTER 24 Of Process Upon an Indictment

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WE are next, in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately to be arraigned thereon. But if he has fled, or secretes himself, in capital cases; or has not, in smaller misdemeanors, 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 must issue to bring him into court; for the indictment cannot be tried, unless he personally appears: according to the rules of equity in all, and the express provision of statute 28 Edw. III. c. 3. in capital, cases; that no man shall be put to death, without being brought to answer by due process of law.

THE proper process on an indictment for any petty misdemeanor, or on a penal statute, is a writ of venire facias [cause to come], which is in the nature of a summons to cause the party to appear. And if by the return to such venire 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. But if the sheriff returns that he has no lands in his bailiwick, then (upon his non-appearance) a writ of capias [taking] 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 [multiple takings]. But, on indictments for treason or felony, a capias is the first process: and, for treason or homicide, only one shall be allowed to issue,1 or two in the case of other felonies, by statute 25 Edw. III. c. 14. though the usage is to issue only one in any felony; the provisions of this statute being in most cases found impracticable.2 And so, in the case of misdemeanors, it is now the usual practice for any 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. 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 in a regular number, 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 exacted, proclaimed, or required to surrender, at five county courts; and if he be returned quinto exactus [required the fifth time], 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 incapable of taking the benefit of it in any respect, either by bringing actions or otherwise.

THE punishment for outlawries upon indictments for misdemeanors, is the same as for outlawries upon civil actions; (of which, and the previous process by writs of capias, exigi facias [cause to be required], and proclamation, we spoke in the preceding book3) viz. forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offense charged in the indictment, as much as if he had been found guilty by his country.4 His life is however still under the protection of the law, as has formerly been observed:5 and though anciently an outlawed felon was said to have caput lupinum [a wolf’s head], and might be knocked on the head like a wolf, by any one that should meet him;6 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 is held that no man is entitled to kill him wantonly or wilfully; but in so doing is guilty of murder,7 unless it happens in the endeavor to apprehend him.8 For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum [take the outlaw], in order to bring him to execution. But such outlawry may be frequently reversed by writ of error; the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial; and, 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.

THUS much for process to bring in the offender after indictment found; during which stage of the prosecution it is, that writs of certiorari facias [cause notice to be given] are usually had though they may be had at any time before trial, 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 ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes; either, 1. To consider and determine the validity of appeals or indictments 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 the bar of the court of king’s bench, or before the justices of nisi prius [unless before]: or, 3. It is so removed, in order to plead the king’s pardon there: or, 4. To issue process of outlawry against the offender, in those countries or places where the process of the inferior judges will not reach him.9 Such writ of certiorari [notice given], 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 king’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: 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 jail delivery, or after issue joined or confession of the fact in any of the courts below.10

AT this stage of prosecution also it is, 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; 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.

NOTES

     1.    See appendix. § 1.

     2.    2 Hal. P. C. 195.

     3.    See Vol. III. pag. 283, 4.

     4.    2 Hal. P. C. 205.

     5.    See pag. 178.

     6.    Mirr. c. 4. § 4. Co. Litt. 128.

     7.    1 Hal. P. C. 49.

     8.    Bracton. fol. 1256.

     9.    2 Hal. P. C. 210.

   10.    2 Hawk. P. C. 287. 4 Burr. 749.

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