of vacation) may bail for any crime whatsoever, be it treason (n), murder (0), or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either [*300] house of parliament, so long as the *session lasts; or such as are committed for contempts by any of the king's superior courts of justice. (p) Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment: there to abide till delivered by due course of law. (9) But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though what are so requisite must too often be left to the discretion of the gaolers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner, unless where he was unruly, or had attempted to escape; (r) this being the humane language of our ancient lawgivers: (s) "custodes poenam sibi commissorum non augeant, nec eos torqueant; sed omni sævitia remota, pietateque adhibita, judicia debite exequantur.” CHAPTER XXIII. OF THE SEVERAL MODES OF PROSECUTION. THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. (1) And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment. I. A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice (n) In the reign of Queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment for a charge of high treason, by any of the queen's privy council. 1 Anders. 298. (0) In omnibus placitis de felonia solet accusatus per plegios dimitti, præterquam in placito de homicidio. (Glan. l. 14, c. 1.) Sciendum tamen quod, in hoc placito non solet accusatus per plegios dimitti, nisi ex regia potestatis beneficio. (Ibid. c. 3.) (p) Staundf. P. C. 73, b. (q) 2 Hal. P. C. 122. (8) Flet. l. 1, c. 26. (1) It is a requirement of constitutional law that a person accused of crime shall be entitled to a speedy trial, and this has been said to mean a trial so soon after indictment as the prosecution can, by a fair exercise of reasonable diligence, prepare for trial, regard being had to the terms of court. U. S. v. Fox, 3 Montana, 512. By the Habeas Corpus Act, 31 Car. II., c. 2, § 7, a person committed for treason or felony must be indicted at the next term or sessions, and if not indicted and tried in the second term or sessions, he shall be discharged from confinement, unless the delay arises from the impossibility of reaching witnesses for the prosecution. Similar provisions are found in the statutes of the American States, and there are general statutes limiting the time within which prosecutions for criminal offenses shall be instituted. taken by a grand jury of any offence from their own knowledge or observation, (a) without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, (b) before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriff's tourn or courtleet, whereupon the presiding officer may set a fine. (2) Other inquisitions may be afterwards traversed and examined: as particularly the coroner's *inquisition of the death of a man, when it finds any one guilty of [*302] homicide; (3) for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. II. An indictment (c) is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the part of our lord the king, shall then and there be commanded them. (d) They ought to be freeholders, (4) but to what amount is uncertain: (e) which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred. (f) "Exeant seniores duodecim thani, et præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare." In the time (a) Lamb. Eirenarch. 1. 4, c. 5 (c) See Appendix, § 1. (b) 2 Inst. 789. (d) 2 Hal. P. C. 154 (e) Ibid. 155. (f) Wilk. LL. Angl. Sax. 117. (2) Mr. Justice Coleridge points out an inaccuracy here. He shows that inquisitions of felo de se may be traversed by the executors or administrators of the deceased. Toomes v. Etherington, 1 Saund. R., 363, n. 1, ed. 1824; that inquisition is not taken of the flight of persons accused of felony distinct from the felony; that the finding as to deodands is not so conclusive but that the court may interfere to diminish the value: Fost., 266; and that, as to presentments of petty offenses in the tourn or leet, Lord Mansfield has said that it cannot be true that they are not traversable anywhere: Cowp., 459; and the law seems to be that, before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of king's beneh, and traversed there. Rex v. Heaton, 2 T. R., 184. (3) That the finding of a coroner's jury is in itself an indictment upon which a trial may be had without the intervention of a grand jury, see R. v. Ingham, 9 Cox, 508. The old doctrine was that one might be put on trial for crime without indictment when a verdict had in a civil action involved finding one guilty of crime. As if in trespass the jury found the defendant stole the goods. 2 Hawk. P. C., c. 25, § 6; Com. Dig.. Indictment, C. Or in slander for calling one a thief, and the jury found a justification made out. Bac. Abr. Indictment, B. 5. But no such proceeding is known to modern English law. Capital or other infamous crimes against the United States are only to be tried on indictment. Const. U. S., Amendment 5. In a majority of the states there are similar constitutional provisions, but in some the grand jury is abolished, and an information filed by a public prosecutor is substituted for an indictment. (4) It is not essential that they be freeholders. Russ. and R., 177. of King Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably *found too large and inconvenient; but [*303] the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously in structed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes. (g) The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter anciently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them; but by statute 2 and 3 Edw. VI, c. 24, he is now indictable in the county where the party died. And, by statute 2 Geo. II, c. 21, if the stroke or poisoning be in England, and the death upon the sea, or out of England: or, vice versa; the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII, c. 13, 33 Hen. VIII, c. 23, 35 Hen. VIII, c. 2, and 5 and 6 Edw. VI, c. 11. And counterfeiters, washers, or minishers *of the current coin, together with all manner of felons and [*304] their accessories, may by statute 26 Hen. VIII, c. 6 (confirmed and xplained by 34 and 35 Hen. VIII, c. 26, §§ 85, 86), be indicted and tried for hose offences, if committed in any part () of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the county of Hereford or Salop; and not, as it should seem, in the county of Chester or Monmouth: the one being a county-palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII. () Murders, also, whether committed in England or foreign parts, (k) may by virtue of the statute 33 Hen. VIII, c. 23, be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 and 11 Wm. III, c. 25, all robberies and other capital crimes, committed in Newfoundland, may be inquired of and tried in any county in England. Offences against the black-act, 9 Geo. I, c. 22, may be inquired of and tried in any county in England, at the option of the prosecutor. (1) So felonies in destroying turnpikes, or works upon navigable rivers, erected by authority of parliament, may by statutes 8 Geo. II, c. 20, and 13 Geo. III, c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II, c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Ann. st. 2, c. 18 (m) may be pro (g) State Trials, iv, 183. (h) Stra. 553. 3 Mod. 134. (i) See Hardr. 66. k) Ely's Case, at the Old Bailey, Dec. 1720. Roache's Case, Dec. 1775. So held by all the judges, H. the Old Bailey. 11 George III, in the case of Richard Mortis, on a case referred from (m) See page 244. secuted either in the county where the fact is committed, or in any county next adjoining; and, if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as by the statute 26 Hen. VIII, above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales. (n) Felonies committed out of the realm, in burning or destroying the king's ships, *magazines, or stores, may by statute 12 Geo. III, c. 24, be inquired of and tried in any county of England, or in the place where the offence [*305] is committed. By statute 13 Geo. III, c. 63, misdemeanors committed in India may be tried upon information or indictment in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into, as well as tried, in the county where the fact is committed. Yet, if larceny be committed in one county, and the goods carried into another, the offender may be indicted in either; for the offence is complete in both. (0) Or he may be indicted in England for larceny in Scotland, and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another. (p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted, or stands mute, he shall not be admitted to his clergy: provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691. (g) (5) When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, "ignoramus," or, we know nothing of it: intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English more absolutely, "not a true bill;" or (which is the better way) "not found;" and then the party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then *endorse upon it, "a true bill;" anciently "billa vera." The indictment is then said to be found, and [*306] the party stands indicted. But to find a bill there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards, by the whole petit jury, of twelve more, finding him guilty, upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree. (r) And the indictment, when so found, is publicly delivered into court. (n) At Shrewsbury summer assizes, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It was moved in arrest of judgment, that Chester, and not Salop, was the next adjoining English county. But all the judges (in Mich. 15 Geo. III) held the prosecution to be regular. (0) 1 Hal. P. c. 507. (p) Stat. 13 Geo. III, c. 31. (g) Stat. 25 Hen. VIII, c. 3. 3 W. and M. c. 9. (r) 2 Hal. P. C, 161. (5) Formerly it was necessary to state the venue in the body of the indictment, but it is not so now. See statute 14 and 15 Vic., c. 100, § 23. And as the court by the same statute has power to allow an amendment in the statement of the venue, an objection on this score does not often become available, unless the indictment on its face, or the evidence given on the trial, shows that the court had no jurisdiction. And if the record on its face shows the court to have no jurisdiction, a conviction cannot be sustained without amendment, notwithstanding the court had jurisdiction in fact. Reg. v. Mitchell, 2 Q. B., 636. VOL. II.-59 465 Indictments must have a precise and sufficient certainty. (6) By statute 1 Hen. V, c. 5, all indictments must set forth the christian name, sirname, and addition of the state, and degree, mystery, town, or place, and county of the offender: and all this to identify his person. The time, and place, are also to be ascertained by naming the day and township, in which the fact was committed; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment, and the place to be within the jurisdiction of the court; unless where the place is laid, not merely as a venue, but as a part of the description of the fact. (s) But sometimes the time may be very material, where there is any limitation in point of time assigned for the prosecution of offenders: as by the statute 7 Wm. III, c. 3, which enacts, that no prosecution shall be had for any of the treasons or misprisions therein mentioned (except an assassination designed or attempted on the person of the king), unless the bill of indictment be found within three years after the offence committed: (t) and in case of murder, the time of the death must be laid within a year and a day after the mortal stroke was given. The offence itself must also be set forth with clearness and certainty; and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the *offence, that no other words, however synonymous they may seem, [*307] are capable of doing it. Thus, in treason, the facts must be laid to be (6) "The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, inform the court of the facts alleged, so that it may decide whether they are sufficient to support a conviction, if one should be had. For this, facts are to be stated; not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity, of time, place, and circumstances." U. S. v. Cruikshank, 92 U. S., 542, 558; Jarrard's Case, L. and C., 301; Merwin v. People, 26 Mich., 298. By the sixth amendment to the constitution of the United States an accused party is entitled to be informed of the nature and cause of the accusation against him. The indictment must therefore set forth the offense with clearness and all necessary certainty to apprise the accused of the crime he is charged with. U. S. v. Mills, 7 Pet., 138. The alleged crime must be set forth with reasonable precision, directness, and fullness. Com. v. Phillips, 16 Pick., 211. Every ingredient of the offense must be clearly alleged. U. S. v. Cook, 17 Wall., 168. The requisites of an indictment are thus described by Justice Brett in a carefully considered opinion: An indictment must contain an allegation of every fact necessary to constitute the criminal charge preferred by it. As, in order to make acts criminal, they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If, in order to support the charge, it is necessary to show that certain acts have been committed, it is necessary to allege that those acts were in fact committed. If it is necessary to show that those acts, when they were committed, were done with a particular intent, it is necessary to aver that intention. If it is necessary, in order to support the charge, that the existence of a certain fact should be negatived, the negative must be alleged." R. v. Aspinall, 2 Q. B. D., 56; and see Bradlaugh v. The Queen, 3 Q. B. D., 607. As to the last point, see Com. v. Hart, 11 Cush., 130, where it is held that if in the enacting clause of a statute there is an exception, the party pleading an offense against the statute must show that his adversary is not within the exception; but, if the exception is in a subsequent clause or statute, it is to be shown in defense. "The ultimate design of all these objects" (that is, those sought to be accomplished by strictness in setting forth the charge), "is fairness to the prisoner; and consequently any indictment which has failed to set forth the offense with such certainty as to accomplish any of these purposes as far as the nature and circumstances of the case would permit, has generally been held bad upon general demurrer, or motion in arrest of judgment, or on writ of error. It is, however, true that in some cases and to some extent the omission to state facts not essential constituents of the offense in the abstract, but which are required to be stated, if known, may be excused by an allegation, on the face of the indictment, showing why they could not be stated. Thus, first, the grand jury may not have been able to ascertain the names of third persons whose names ought regularly to be stated; or, second, the means used to take life in case of murder; or, third, if in forgery, the forged instru ment be lost, or in the hands of, or concealed by, the defendant; in the first case, the names; in the second, the means used to produce death; and, in the third, the exact words |