CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

WHEN, upon a capital charge, the jury have brought in their Judgment. verdict guilty, in the presence of the prisoner; he is either immediately, or soon after, asked by the court, if he has any thing to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanor, (the trial of which may, and does usually, happen in his absence after he has once appeared), a capias is issued, to bring him to receive his judgment; and if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment in arrest or stay of judgment: as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And, if the objections be valid, the 4 Rep. 45. whole proceedings shall be set aside; but the party may be indicted again. And we may notice, that none of the statutes of jeofails, for amendment of errors extend to indictments or proceedings in criminal cases; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are: and that in favor of life, great strictness has at all times been observed in every point of an indictment (a).

(a) By 7 Geo. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for the omission of the words, as appears by the record, or the words, with force and arms, or the words, against the peace, nor for the insertion of the words, against the form of the statute, instead of the words, against the form of the statutes, or vice versá, nor for that any person mentioned in the indictment or information is designated by a name of office, or other descriptive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue where the court shall appear by the indictment or information to have had jurisdiction over the offence; and by s. 21, no judgment after verdict upon any indictment or information for any felony or misdemeanor, shall be stayed or reversed for want of a similar, nor by reason that the jury process has been awarded to a wrong officer upon an in

Attainder.

3 Inst. 213.

Forfeiture.

A pardon, also, may be pleaded in arrest of judgment; and it has the same advantage when pleaded here, as when pleaded upon an arraignment; viz. the saving the attainder, and of course, the corruption of blood: which nothing can restore but parliament, when a pardon is not pleaded till after sentence. If these resources fail, the court must pronounce that judgment which the law has annexed to the crime, and which with the crime itself, has been before mentioned (b).

When sentence of death is pronounced, the immediate inseparable consequence from the common law is attainder. The criminal is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; nor is he capable of performing the functions of another man: for by an anticipation of his judgment he is already dead in law. This is after judgment; for there is great difference between a man convicted and attainted; though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed, or he may obtain a pardon. But when judgment is once pronounced both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of any thing to be said in his favor. Upon judgment therefore, and not before, the attainder of a criminal

commences.

Forfeiture is twofold; of real and personal estates. By attainder in high treason a man forfeits to the queen all his

sufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and when the offence charged has been created by any statute, or subjected to a greater degree of punish. ment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.

(b) In cases where the court shall be of opinion that an offender is a fit subject to be recommended to the royal mercy, it is authorized by 4 Geo. 4, c. 48, to abstain from pronouncing judgment of death upon an offender, excluded the benefit of clergy; and instead of pronouncing such judgment, to order the same to be entered of record in the same manner as if judgment had been actually pronounced, and the record of such judgment shall have the same effect, and be followed by the same consequences as if pronounced in open court.

350.

ands and tenements of inheritance, whether in fee simple or ee tail, and all his rights of entry on lands and tenements, which he had in his own right, but such forfeiture now extends only for his own life (c). This forfeiture relates backwards to the ime of the treason committed: so as to avoid all intermediate ales and incumbrances; but not those before the fact: and, 3 Inst. 211. herefore, a wife's jointure is not forfeitable for the treason of her husband. But her dower is forfeited by 5 & 6 Edw. 6, c. 14, and yet the husband shall be tenant by the curtesy of the wife's lands, if the wife be attainted of treason: for that is not 1 Hal. P. C. prohibited by the statute. But, though after attainder the orfeiture relates back to the time of the treason committed, et it does not take effect unless an attainder be had, of which t is one of the fruits; and therefore, if a traitor dies before udgment pronounced, or is killed in open rebellion, or is anged by martial law, it works no forfeiture of his lands. Co. Litt. 13. But if the chief justice of the queen's bench, the supreme coroner of all England, in person, upon the view of the body of one killed in open rebellion, records it and returns the record nto his own court, both lands and goods become forfeited. In felony the offender forfeits all his chattel interests absoutely, and the profits of all estates of freehold during life. Forfeitures for felony arise only upon attainder; and therefore felo de se forfeits no lands of inheritance or freehold, for he 3 Inst. 55. never is attainted as a felon. They likewise relate back to the time of the offence committed, so as to avoid intermediate harges and conveyances. The forfeiture of goods and chattels accrues in every one of the higher kinds of offence; in treason and felonies of all sorts, murder, felo de se, and also in larceny.

4 Rep. 57.

There is a remarkable difference between the forfeiture of lands, and of goods and chattels. Lands are forfeited upon attainder, and not before; goods and chattels are forfeited by conviction. Because in many of the cases where goods are forfeited, there never is any attainder; which happens only where judgment of death or outlawry is given. In outlawries for treason or felony, lands are forfeited only by the judgment; but goods and chattels are forfeited by a man's being first put in the exigent, without staying till he is quinto exactus, or finally outlawed. The forfeiture of lands has relation to Ibid. 232. the time of the fact committed; but the forfeiture of goods

(c) See the next note.

RR

Corruption of blood.

and chattels has no relation backwards, so that those only which a man has at the time of conviction shall be forfeited. Yet if they be collusively parted with, to defraud the crown, the statute 13 Eliz. 5 will reach them.

Another consequence of attainder was formerly the corruption of blood, both upwards and downwards; so that an attainted person could neither inherit lands or hereditaments from his ancestors, nor retain those he was already in possession of, nor transmit them by descent to any heir; but the same escheated to the lord of the fee, subject to the queen's superior right of forfeiture (d), and the person attainted also obstructed all descents to his posterity, wherein they were obliged to derive a title through him to a remoter ancestor (e).

CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

Of reversal of JUDGMENTS, with their several connected consequences, of atjudgments. tainder, forfeiture, and corruption of blood, may be set aside either by falsifying or reversing the judgment, or by reprieve or pardon.

Attainder may be reversed without a writ of error, for

A judgment may be falsified, reversed, or avoided, without a writ of error, for matters foreign to or dehors the record, that is, not apparent upon the face of it: so that they cannot be asmatter dehors signed for error in the superior court, which can only judge from what appears in the record itself; and therefore, if the whole record be not certified, or not truly certified, by the inferior court, the party injured thereby, in both civil and criminal

the record.

(d) By 54 Geo. 3, c. 145, no attainder for felony, except in cases of high treason or murder, or of abetting, procuring, or counselling the same, now extends beyond the right or title of the offender during his life only; and after the death of such offender, the person next in remainder may enter. And see 3 & 4 Wm. 4, c. 106, s. 10, in the

next note.

(e) By 3 & 4 Wm. 4, c. 106, s. 10, when the person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting the same by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder before 1st January, 1834.

cases, may allege a diminution of the record and cause it to be rectified. Thus, if any judgment be given by persons, who had no good commission to proceed against the person condemned, it is void: and may be falsified by shewing the special matter without writ of error.

A judgment may also be reversed by writ of error, which Writ of error. lies from all inferior criminal jurisdictions to the court of queen's bench, and from the queen's bench to the house of peers; and may be brought for notorious mistakes in the judgment or other parts of the record; as where a man is found guilty of perjury and receives the judgment of felony, or for other less palpable errors; such as any irregularity, omission, or want of form in the process of outlawry, or proclamations; the want of a proper addition to the defendant's name, according to the statute of additions, for not properly naming the sheriff or other officer of the court, or not duly describing where his county court was held; or for laying an offence, committed in the time of the late king, to be done against the peace of the present (a). Writs of error, in case of misdemeanors, are allowed on sufficient probable cause shewn to the attorney general; and then they are granted ex debito juticia. But to reverse attainders in capital cases they are By act of paronly allowed ex gratia, and not without express warrant under the queen's sign manual, or at least by the consent of the attorney general. These, therefore, which can rarely be brought by the party himself, especially where he is attainted for an offence against the state, may be brought by his heir, or excutor, after his death; but the easier, and more effectual way, is, to reverse the attainder by act of parliament.

liament.

The effect of reversing an outlawry is to place the party in Effect of rethe same condition as if he had appeared upon the capias: versing outlawry. and if it be before plea pleaded, he is put to plead upon the indictment; if after conviction, he receives the sentence of the law: for all the other proceedings, except only the process of outlawry for his non appearance, remain good and effectual as before. But when judgment, pronounced upon conviction, is reversed, all former proceedings are set aside, and the party stands as if he had never been accused; but is still liable to another prosecution.

(a) But see now 7 & 8 Geo. 4, c. 64, s. 20, ante, note (a), p. 607.