and addition of the state and degree, mystery, town or place, and the 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. The offense itself must be set forth with clearness and certainty.

14. When must particular words of art, which are so appropriated by the law to express the precise ideas which it entertains of the offense, that no other words, however synonymous they may seem, are capable of doing it, be employed?-307.

In indictments for murder, it is necessary to say that the party indicted "murdered," not killed, or slew, the other. In all indictments for felonies, the adverb "feloniously" must be used; and for burglaries "burglariously." In rapes, the word "ravished" is necessary. So, in larcenies, the words "feloniously took and carried away," are necessary to every indictment, for these only can express the very offense.

15. In indictments for murder, should the length and depth of the wound be expressed?-307.

The length and depth of the wound should, in general, be expressed, in order that it may appear to the court to have been of a mortal nature; but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death.

16. Of what sorts are informations?—308.

Of two sorts: first, those which are partly at the suit of the king and partly at that of a subject; and, secondly, such as are only in the name of the king.

17. Is there not another species of informations?-312.

Yes, that in the nature of a writ of quo warranto. The modern information tends to the same purpose as the ancient writ.

18. What is an appeal, as a criminal prosecution?-312.

It denotes an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered, rather than for the offense

against the public. This private process for the punishment of public crimes, had probably its origin in those times when a private pecuniary satisfaction, called a weregild, was paid to the party injured, or his relations, to expiate enormous offenses.

19. What are the only appeals now in force?-314.

Appeals of felony and mayhem.

20. If the appellee be acquitted, can he afterwards be indicted for the same offense?—315.

He cannot.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

1. Can the indictment be tried in the absence of the defendant?318.

It cannot be tried unless he personally appears.

2. What is the proper process, on an indictment for any petty misdemeanor, or on a penal statute, to cause the offender to appear? -318.

A writ of venire facias, which is in the nature of a summons to cause his appearance.

3. On indictments for treason or felony, and in the case of misdemeanors, what is the usual process?-319.

A capias is the first process; and in the case of misdemeanors, upon certificate of an indictment found, a writ of capias is awarded immediately by any judge of the court of king's bench, to bring in the defendant.

4. What is the punishment for outlawries upon indictment for misdemeanors ?-320.

Forfeiture of goods and chattels.

5. What does an outlawry in treason or felony amount to?—319.

To a conviction and attainder of the offense charged in the indictment, as much as if the offender had been found guilty by his country.

6. Who may arrest an outlaw on a criminal prosecution ?—320.

Any person.

7. How may an outlawry be reversed?-320.

It may frequently be reversed by writ of error; the proceedings therein being exceedingly nice and circumstantial.

8. During what stage of the prosecution may a writ of certiorari facias be had, and with what effect?-320, 321.

It may be had at any time before the 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.

9. For what purpose is the indictment so removed by certiorari facias?-320.

For one of four purposes: 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; 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below; 3. To plead the king's pardon there; 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.

10. At whose instance may a certiorari be granted?—321.

At the instance of either the prosecutor or the defendant of the former as a matter of right, of the latter as a matter of discretion.

CHAPTER XXV.

OF ARRAIGNMENT, AND ITS INCIDENTS.

1. What is arraignment?-332.

To call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.

2. Why is the prisoner then called upon, by name, to hold up his hand?-323.

Because thereby he acknowledges himself to be of the name by which he is called. If he refuse to do so, however, any other acknowledgment that such is his name will answer as well.

3. What does the accused when arraigned?-324.

He either stands mute, or confesses the fact; or else he pleads to the indictment.

4. When is the party arraigned said to stand mute?—324.

Regularly, a prisoner is said to stand mute when, being arraigned for treason or felony, he either, 1. Makes no answer at all; or, 2. Answers foreign to the purpose; or, 3. Upon having pleaded not guilty, refuses to put himself upon the country.

5. To what does standing mute amount ?—328.

It, by statute, now, in all cases, amounts to a constructive confession of the charge.

6. What is the consequence of the prisoner's actual confession of the indictment ?-329.

ment.

In such case the court has nothing to do but to award judg

7. But what is confession by approvement ?—329, 330.

It is when a person indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded, and appeals or accuses others, his accomplices, of the same crime, in order to obtain his pardon. It can only be made in capital offenses, and has been long disused.

CHAPTER XXVI.

OF PLEA AND ISSUE.

1. What is the plea of the prisoner ?-332.

The plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess or stand mute, is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

2. When is the plea to the jurisdiction interposed?-333.

When an indictment is taken before a court that hath no cognizance of the offense, the prisoner may except to the jurisdiction of the court, by a plea to the jurisdiction, without answering at all to the crime alleged.

3. What is a demurrer to the indictment?-333, 334.

It is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact as stated is no felony, treason, or whatever the crime is alleged to be.

4. For what is the plea in abatement interposed ?-334.

It is principally for a misnomer, a wrong name, or a false addition to the prisoner.

5. What rule is there upon all pleas in abatement ?-335.

That he who takes advantage of a flaw must, at the same time, show how it may be amended.

6. What are special pleas in bar?-335.

Special pleas in bar go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged.

7. Of what kinds are they?-335.

They are of four kinds : 1. A former acquittal; 2. A former conviction; 3. A former attainder; 4. A pardon.