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They then withdraw to receive indictments, which are referred to them in the name of the king, but at the suit of any private prosecutor, and they are only to hear evidence on the part of the prosecution; for the finding of an indictment is but in the nature of an inquiry or accusation, which is afterwards to be tried and determined ; and the grand jury are only to inquire on their oaths, whether there be sufficient cause, to call upon the party to answer. They ought to credit the truth of an indictment, as far as the evidence before them goes, and not to rest satisfied with remote probabilities.
Jurisdiction of Grand Jury. The jury are sworn to inquire only for the body of the county, and hence cannot regularly inquire of a fact done out of the county, for which they are sworn, unless by an enabling act of parliament. To so high a nicety was this matter once carried, that where a 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 of Edward V!, he is now indictable in the county, where the party died. By statute of George II, 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 may happen. If treason be committed without the realm, it may be inquired of within the realm, as the king shall direct. Murders, whether committed in England or in foreign parts, may be inquired into in any part of the kingdom.
Forum of the Action. But, in general, all offences must be inquired into, as well as tried, in the county, where the crime was committed. Yet, if larceny be committed in one county, and the goods be carried into another, the offender may be indicted in either, for the offence is complete in both. But for robbery, burglary and the like, a man can only be indicted, where the act was committed; for, although, the carrying away the goods to another county is a continuation of the original taking, and is therefore larceny in the second county, yet it is not robbery or burglary in that jurisdiction.
Endorsement on Indictment. After the grand jury have heard the evidence, if they deem it to be a groundless accusation, they formerly endorsed on the bill "ignoramus,” or we know nothing of it; intimating that though the facts might possibly
have been true, that truth did not appear to them, but now they endorse: "not a true bill” or “not found,” and then the party is discharged without further answer. But a fresh bill may be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they endorse upon it "a true bill,” or, anciently, "billa vera.” The indictment is then said to be found, and the party stands indicted. To find a bill, there must at least twelve of the grand jury agree, and afterwards, the entire petit jury of twelve men at the trial must find him guilty. If twelve of the grand jury assent, it is a good presentment, though some of the rest disagree.
Indictments. Time and Place. The indictment, when so found, is publicly delivered into court. Indictments must have a precise and sufficient certainty. By statute of Henry V, they must set forth the christian name, surname and addition of the state and degree, mystery, town or place of the offender; and all this to identify his person. The time and place are ascertained by naming the day and township, in which the act was committed; though a mistake in these points is generally not held material, provided the time be laid previous to the finding of the indictments, and the place 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 act. But, occasionally, the time may be very material, where there is a limitation assigned by statute for the prosecution of offenders.
Indictments. Technical Words, The offence must be set forth with clearness and certainty; and in some crimes, particular words must be used, which the law appropriates to precisely express the offence. Thus, in treason, the words
treasonably, and against his allegiance," must be used. In indictments for murder, it is necessary to say, that the party “murdered," not "killed " or "slew" the other. In all indictments for felonies, the adverb “feloniously” must be used. In burglaries, “burglariously”; in rapes, “ravished”; in larcenies, " feloniously took and carried away,” are necessary to every indictment, for these only can express the very offence.
Indictments. Value of the Thing. In indictments, the value of the thing, which is the subject of the offence, must sometimes be expressed. In larcenies, this is necessary to disclose, whether it is grand or petit larceny, and whether entitled or not to the benefit of clergy; in homicides of all sorts, it is necessary, as the weapon with which it was committed is forfeited to the king, as a deodand.
Where Trial without Indictment. The remaining methods of prosecution are without any previous finding by a jury. One of these is where a thief was taken with the mainour, that is, with the thing stolen upon him in manu. If detected, flagrante delicto, he might be tried formerly without indictment, and, by the Danish law, hung upon the spot, without trial. But, at present, the only species of proceeding at the suit of the king, without previous presentment or indictment by a grand jury, is that of information.
III. Informations. Two kinds. 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.
On Penal Statutes. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender; one part to the use of the king, and another to the use of the informer; and are a sort of qui tam action, only carried on by a criminal, instead of a civil process.
Limitation of Action. By statute of Elizabeth, no prosecution upon any penal statute, the suit and benefit whereof are limited, in part, to the king, and in part, to the prosecutor, can be brought by any common informer, after the expiration of one year from the date of the offence; nor on behalf of the crown, after the lapse of two years longer; nor where the forfeiture was originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence.
Filed in the King's Name. Informations, exhibited in the name of the king alone, are of two kinds: first, those that are properly his own suits, and filed ex officio, by his own officer, the attorney-general; second, those in which the king is only the nominal prosecutor, the action being at the relation of some private person or informer; and they are filed by the king's attorney, in the court of the king's bench.
King's Own Prosecutions. The object of the king's own prosecutions are properly great misdemeanors, that disturb or endanger his government, or interfere with the discharge of his royal functions. For offences so dangerous, the law has per
Now reduced to six months.
mitted the crown the power of an immediate prosecution, without waiting to apply to any other tribunal.
Prosecutions, ex Relatione. The objects of these informations, filed by the master of the crown office, upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, not particularly disturbing the government; but which, on account of their magnitude or pernicious example, deserve public animadversion.
Trial and Punishment. When an information is filed, it must be tried by a petit jury of the county, where the offence arises; and if the defendant be found guilty, the court will punish him.
Antiquity of Informations, This mode of prosecution, by information or suggestion, filed of record by the attorney-general, or filed in the court of king's bench, is as ancient as the common law itself. For, as the king was bound to prosecute, or lend the sanction of his name to a prosecutor, whenever informed by the grand jury, that there existed sufficient ground for a criminal suit; so, when these immediate officers were otherwise assured, that a man had committed a gross misdemeanor, they were at liberty without delay, to convey that information to the court of king's bench, by a suggestiou on record, and to carry on the prosecution in the king's name.
Applies to Misdemeanors Only. Informations are confined to misdemeanors only; for whenever any capital offence is charged, the law requires the accusation to be warranted by the oath of twelve men, before the party be required to answer it.
Abuses of Informations. And, as to those offences, in which informations were allowed as well as indictments, so long as they were conducted in a legal and regular course, in the court of king's bench, the subject had no reason to complain. The same notice was given, the same pleas were allowed, the same trial by jury had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment. But when the statute of Henry VIII had extended the jurisdiction of the star chamber, the members of which were the sole judges of the law, the fact, and the penalty; and permitted informations to be brought by any informer, upon any penal statute, not extending to life or limb, at the assizes, or before the justices of the peace; then the orderly jurisdiction of the court of king's bench fell into disuse and oblivion, and by hunting up obsolete penalties, certain men, by this tyrannical mode of prosecution, harassed the subject, and shamefully enriched the crown.
Information, an Oppressive Mode. Upon the dissolution of the court of star chamber, in the reign of Charles I, the old common law authority of the court of king's bench, as the custos morum of the nation, was revived in practice. Yet, in the same act of parliament, which abolished this court, a conviction by information was mentioned, as a legal mode of conviction. This method of prosecution was unpopular, because of the ill-use the master of the crown office made of his authority, by permitting the subject to be harassed with vexatious informations by any malicious or revengeful prosecutor. For the power of filing informations resided in the breast of the master, and being filed in the name of the king, subjected the prosecutor to no costs; though on trial they proved to be groundless. This oppressive use of them caused a struggle, soon after the accession of William III, to procure them declared illegal by the court of king's bench, which, however, refused to give such judgment. A few years later, a statute was passed, that the clerk of the crown shall not file any information, without directions from the court of king's bench, and that every prosecutor shall give security to prosecute with effect, and to pay costs. Informations, however, at the king's own suit, filed by his attorney-general, are not affected by this act.
Quo Warranto. This is a remedy given to the crown against such as had usurped or intruded into any office or franchise. The modern information tends to the same purpose as the ancient writ, being generally used to try the civil rights of such franchises. It is commenced in the same manner as other informations are, by leave of the court, or at the will of the attorney-general, being properly a criminal prosecution, to fine the defendant for his usurpation, as well as to oust him from his office; yet usually considered as merely a civil proceeding.
IV. Appeal. An appeal, as here used, does not signify any complaint to a superior court of an injustice done by an inferior one, which is the general use of the word ; but it here means an original suit, at the time of its commencement. An appeal, therefore, when spoken of as a criminal prosecution, denotes an accusation by one private subject against another, for some heinous crime ; demanding punishment for the injury, rather than for the