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grand jury.

They then retire and consider other bills, until all are disposed of; after which they are discharged by judge, chairman, or recorder, presiding.

of the bill

out.

If the bill is thrown out or "cut," although it cannot Consequences again be preferred to the grand jury during the same being thrown assizes or sessions, it may be preferred and found at snbsequent assizes or sessions, of course within the time limited, if there be any time so limited (v). We may anticipate, by reminding the reader that this cannot be done in respect of the same offence if the petty jury have returned a verdict; unless, indeed, the prisoner is acquitted, on a charge of felony, merely on the ground that the proof establishes an act short of the felony charged, but which amounts to a misdemeanor, or another kind of felony. In such case the court orders him to be detained; and the proper course is to take him before the magistrate again.

without

before a

We have pursued the ordinary method of criminal Bills preferred procedure by supposing that, in the first instance, there previous has been an examination before the magistrate. But examination this does not always take place. With certain excep- magistrate. tions, a person may prefer a bill of indictment against another before the grand jury without any previous inquiry into the truth of the accusation before a magistrate. This general right was, at one time, an universal right, and was often the engine of tyranny and abuse. It is easy to conceive how an innocent man's character might be injured, or at least how he might be put to great expense and inconvenience in defending himself against a charge founded on a true bill returned by the grand jury, who have heard only the evidence for the prosecution. A substantial check was put upon this grievance by the Vexatious Indict- Vexatious ments Act (w). It provides that no bill of indictment

(v) Arch. 84. v. p. 345.

Indictments

Act.

(w) 22 & 23 Vict. c. 17.

for any of the offences enumerated below shall be presented to or found by a grand jury unless one of the following steps has been taken :-(a) The prosecutor or other person presenting such indictment has been bound by recognizance to prosecute or give evidence against the accused; or (b) the accused has been committed to or detained in custody, or has been bound by recognizance to appear to answer an indictment for such offence (x); or (c) unless the indictment has been preferred by the direction, or with the consent in writing, of a judge of the High Court, or the Attorney or Solicitor-General of England, if the offence has been committed in England; or of a judge of one of the superior courts of law in Dublin, or the Attorney or Solicitor-General of Ireland, if the offence has been committed in Ireland; or (d) in case of an indictment for perjury, by the direction of any court, judge, or public functionary, authorized by 14 & 15 Vict. c. 100, The offences

Offences dealt to direct a prosecution for perjury.

with in this

Act.

referred to are:- Perjury, subornation of perjury, conspiracy, obtaining money or property by false pretences, keeping a gambling house, keeping a disorderly house, indecent assault; and now, by the Debtors Act, 1869 (y), any misdemeanor under the second part of that Act. The object of this salutary provision was furthered by a subsequent statute (z), one section of which (sect. 2) allows the court trying an indictment for any of such offences, in its discretion, to order the prosecutor to pay costs and expenses to the accused in the event of the latter's acquittal.

(x) See s. 2 as to a justice refusing to commit or bail.

(y) 32 & 33 Vict. c. 62, s. 18.

(2) 30 & 31 Vict. c. 35.

CHAPTER VIII.

PROCESS.

THE grand jury have found a true bill. The next point Process,
to be considered is the process (the writs or judicial
means) issued, or made to proceed, to compel the attend-
ance of the accused to answer the charge. Of course
this is not required if he is in custody or surrenders to
his bail; in such case he may be tried as soon as is
convenient. If he is in custody of another court for
some other offence, the course is to remove him by a
writ of habeas corpus, and bring him up to plead. But
if he is already in the custody of the same court, there
is no need for such writ (a).

If, however, an indictment has been found in the when it issues. absence of the accused, he having fled or secreted himself so as to avoid the warrant of arrest, or has not been bound over to appear at the assizes or sessions, then process must issue to bring him into court. It is contrary to the policy and humanity of the English law to try an indictment in the absence of the accused (b).

Process in ordinary cases is now regulated by II & Warrant issued by a 12 Vict. c. 42, s. 3. When an indictment has been magistrate. found at the assizes or sessions against some person who is at large, the clerk of indictments, or clerk of the peace, after such assizes or sessions, upon the application of the prosecutor or any person on his

(a) 30 & 31 Vict. c. 35, s. 10.
(b) But v. p. 372.

Bench warrant.

Process in

other cases.

behalf, will grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the jurisdiction where the offence is alleged to have been committed, or in which the accused resides, or is, or is suspected of residing or being, such justice may and must issue his warrant to apprehend the person so indicted and bring him before some justice of the jurisdiction, who, upon proof by oath that the person present is the person indicted, will, without further inquiry or examination, commit him for trial or admit him to bail (c). Provision is also made for the backing of such warrant if the accused is out of the above jurisdiction (d). If he is already in prison, the justice must issue his warrant to the gaoler, ordering him to detain him until removed by habeas corpus or otherwise in due course of law (e).

Another mode of proceeding is, for the court before whom the indictment is found to issue a bench warrant for the arrest of the accused, and to bring him immediately before such court. At the assizes it is signed by the judge, at sessions by two justices of the peace. Any judge of the Queen's Bench Division, upon affidavit or certificate that an indictment has been found, or information filed in that court, may issue his warrant for apprehending and holding the accused to bail; and in default of bail he may commit him to prison (ƒ).

In cases not provided for as above, the following are the steps. In misdemeanors, when the indictment is found, a writ of venire facias ad respondendum (which may be issued by the Queen's Bench Division, a judge of assize, or a court of quarter sessions) is issued, its

(c) 11 & 12 Vict. c. 42, s. 3.

(d) Ibid. s. 11.

(e) Ibid. s. 3.

(f) 48 Geo. 3, c. 58, s. 1.

nature being a summons to cause the party to appear. If he makes default in appearing to answer to this writ, a writ of distringas may be issued from time to time. If he still fails to appear, and the sheriff makes return that he has no lands, a writ of capias ad respondendum, commanding the sheriff to take his body to answer the charge, may be issued; and if he is not taken upon the first capias, a second and a third, termed an alias and a pluries, may issue. Upon an indictment for felony a capias may issue in the first instance.

If none of these modes of summary process are Outlawry, effectual, the accused is liable to outlawry, the consequences differing according as the charge is one of misdemeanor or of felony.

meanors,

First, in the case of misdemeanors.-The proceedings in misdeare by venire facias, distringas, capias, alias capias pluries capias, as above. If none of these measures accomplish their object, a writ of exigent is awarded, by which the sheriff is required to proclaim or exact the defendant, and call him five successive county court. days, charging him to appear upon pain of outlawry. The defendant still not appearing on the fifth county court day, judgment of outlawry is pronounced by one of the coroners for the county. The judgment of outlawry in misdemeanors operates as a conviction of the contempt for not answering (g).

In felonies (including treason) the proceedings are in felonies. more summary, though they are followed by graver consequences. The first process is a capias, and the other proceedings ensue as above. The outlawry amounts to a conviction or attainder of the offence charged in the indictment, as if the defendant had been found guilty by a jury. Formerly, an outlawed

(g) Arch. 89.

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