ARCHBOLD'S

PLEADING AND EVIDENCE

IN

WITH THE

STATUTES, PRECEDENTS OF INDICTMENTS, &c.

AND THE

EVIDENCE NECESSARY TO SUPPORT THEM.

BY

JOHN JERVIS, ESQ

(LATE LORD CHIEF JUSTICE OF THE COURT OF COMMON PLEAS.)

.

INCLUDING THE

PRACTICE IN CRIMINAL PROCEEDINGS BY INDICTMENT.

BY

W. N. WELSBY ESQ.,

BARRISTER-AT-LAW, RECORDER OF CHESTER.

LONDON:

HENRY SWEET, 3, CHANCERY LANE;

STEVENS, SONS, AND HAYNES, 26, BELL YARD;

IN ordinary cases, upon furnishing the clerk of the arraigns or clerk of the indictments at the assizes, or the clerk of the peace at sessions, with the particulars of the offence, he will draw the indictment; but in cases where more than ordinary care may be requisite in framing the indictment, it is better to get it drawn by counsel, and then let it be engrossed on plain parchment, without stamp. Indorse on it the names of the witnesses intended to be examined before the grand jury.

Before the passing of the stat. 19 & 20 Vict. c. 54, it was necessary, after the indictment was engrossed, that the crier or some other officer of the court (see R. v. Dickinson, R. & R. 401: Reg. v. Tew, Dears. C. C. 429) should administer the oath to the witnesses, and then the indictment was laid by the proper officer before the grand jury. But by the above statute, the swearing of the witnesses in open court is dispensed with (s. 2), and by s.1, the "foreman" of the grand jury (which word shall include any member of the grand jury who may for the time being act on behalf of the foreman in the examination of witnesses in support of any bill of indictment, s. 3) is authorized to administer an oath (or affirmation, where by law it is required or allowed to be taken in lieu of an oath, s. 3) to all persons who shall appear before such grand jury to give evidence in support of any bill of indictment, and all such persons attending before any grand jury to give evidence, may be sworn and examined upon oath by such grand jury touching the matters in question; and every person taking any oath or affirmation in support of any bill of indictment, who shall willfully swear or affirm falsely, shall be deemed guilty of perjury ; and the name of every witness examined or intended to be so examined shall be indorsed on such bill of indictment, and the foreman of such grand jury shall write his initials against the name of each witness so sworn and examined touching such bill of indictment: provided, however, that nothing in this act contained shall affect any fees by law payable to any officer of any court for swearing witnesses, but such fees shall remain payable as if that act had not passed.

Two indictments founded on the same case, one for felony under a statute, and another for a misdemeanor at common law, ought not to be preferred at the same time. See R. v. Doran, 1 Leach, 538: R. v. Smith, 3 C. & P. 413. But the court of Queen's Bench will not quash them in such a case. Reg. v. Stockley, 3 Q. JB. 238; 2 G. & D. 728.

After the indictment has been taken to the grand jury-room, it will come under the consideration of the grand jury in its turn. The witnesses are then called in, in the order in which their names are indorsed on the indictment, and examined by the grand jury; and if the offence should appear to a majority of the jury (consisting of twelve at least) to have been sufficiently proved, the clerk of the grand jury will indorse on the indictment, " True bill," but if the majority should be of opinion that the offence has not been sufficiently proved, the words, "No true bill," are in that case indorsed on the indictment Afterwards, the foreman, accompanied by the other grand jurors, carries the indictments so indorsed into court, and delivers them to the clerk of the arraigns, or clerk of the peace, who thereupon states to the court the substance of each, and the indorsement upon it. In strict legal parlance, an indictment is not so called, until it has been found a "true bill" by the grand jury; before that it is named a bill merely.

The grand jury may require the same evidence, written and parol, as may be necessary to support the indictment at the trial. They are not, however, usually very strict as to the documentary evidence; they often admit copies where the originals alone are evidence; and sometimes even evidence by parol of a matter which should be proved by written evidence. But as they may insist on the same strictness of proof as must be observed at the trial, it is prudent in all cases to be provided, at the time the bill is preferred, with the same evidence with which you intend afterwards to support the indictment. The de- position of a witness who is so ill as not to be able to travel, which, under stat. 11 & 12 Vict. c. 42, s. 17, may be given in evidence before a petty jury on the trial, may also be read in evidence before the grand jury. Reg. v. Clements. 2 Den. C. C. 251. It must be observed, however, that it is no objection that witnesses are called and examined at the trial, whose names are not on the back of the indictment; and that, in strictness, it is not necessary for the prosecutor to call every witness whose name is on the back of the indictment, although it is usual to do so, in order that the defendant may have the benefit of cross-examination; R. v. Simmons, 1 C. & P. 84: R. v. Beezley, 4 C. & P. 220: Reg. v. Vincent, 9 C. & P. 91: Reg. v. Bull. Id.22; and if the prosecutor will not call them, the judge, in his discretion, may. R. v. Whithead, 4 C. & P. 322, n.: Reg. v. Holden, 8 C. & P. 610. It seems that an improper mode of swearing the witnesses before the grand jury will not vitiate the indictment, since they are at liberty to find a bill on their own knowledge merely. Reg. v. Russell, C. & Mar. 247. See O'Connell v. Reg., 11 Cla. & Fin. 155. A witness who gives false evidence before a grand jury is indictable for perjury and the other witnesses examined on the same bill are good witnesses to prove it. Reg. v. Hughes, 1 C. & K. 519.

If witnesses will not come forward voluntarily to give evidence before the grand jury, you may sue out a subpoena or subpoena duces tecum, either at the crown office in London, or with the clerk of the arraigns in the country, for the assizes, or at the crown office, or with clerk the peace for the sessions, and serve each of them with a copy, or subpoena ticket, as it is termed. Or, if the witness be in prison, he may be brought up by hab. corp. ad test. to be sued out in the manner hereinafter mentioned, under tit. Evidence.

The grand jurors of sessions of the peace must be qualified according the stat. 6 G. 4, c. 50, s. 1; but grand jurors at the assizes require no qualification by estate; neither do grand jurors at borough sessions, by 5 & 6 W. 4, c. 76, s 121. Sect. 122 of the same Act exempts members of the town-council of a borough from serving upon any jury (thus including grand juries) summoned within such borough, or summoned to serve in the county wherein such borough is situate. They need not be freeholders: R. & R. 177; and even an Irish peer, who is a member of the House of Commons, is liable to serve upon the grand jury at the assizes as a commoner. Id. 117. They most, however, be "of the king's liege people, returned by sheriffs or bailiffs of franchises, and of whom none shall be outlawed, or fled to sanctuary for treason or felony, otherwise the indictment shall be void;" 11 H. 4, c.9; and if any one be outlawed, the indictment is void, though twenty others be upon the inquest. 2 Hale, 202; Com. Dig. Indictment, (A). In addition to this personal qualification of grand jurors at the assizes, the indictment was formerly declared to be void, if any of the grand jury were returned at the nomination of any; but that part of the stat. 11 H. 4, c. 9, is now repealed. 6 G. 4 c. 50, s. 62. The bill must also must be found by a majority of the jurors, and that majority must consist of twelve at least; 2 Hale, 161; for which reason it is that the number of persons on the grand jury cannot exceed twenty-three, nor be less than twelve; 2 Burr. 1088: R. v. Marsh, 6 Ad. & Ell. 241. It is said that the grand jury cannot find billa vera to part, and ignoramus as to the other part, of an indictment; for they ought to find the whole or nothing. 2 Hawk. c. 25, s. 2: R. v. Ford, 1 Yelv. 99 : R. v. Serjeant, 1 Sid. 414. Thus, if, upon an indictment for libel, they find quoad the words billa vera, sed utrum maliciose ignoramus, the finding is void. I Leon. 287. But this has reference only to the same count in the indictment; for it is clear that they may find billa vera to one count and ignoramus to the other. R v. Fieldhouse, Cowp. 325. They cannot, however, find the bill conditionally; as, for instance, "si messuagium sit in possessione domini regis, tunc billa vera." R. v. Cromwell, Yelv. 15. Upon an indictment for murder against A. and B., they cannot find billa vera as to A., and, as to B., manslaughter only; R. v. Carew, 1

Roll. Rep. 407; for if it were murder in A„ it could not be merely manslaughter in B. But they might find billa vera as to A., and ignoramus as to B.; see R. v. Chomley, Cro. Car. 464; or they might find one or both of them guilty of manslaughter, although, in such a case, it is more usual for the grand jury to return the indictment the court, with a desire that it may be altered to a bill for manslaughter, and, when so altered, (which may readily be done,) to find a true bill generally. Upon an indictment for murder, however, the jury cannot find billa vera se defendendo; R. v. Powle, 2 Roll. Rep. 52; for the offence charged is a felony, the offence found is not. See 9 G. 4, c. 31, s. 10.

Indictments found at the sessions, and transmitted by the justices the assizes, must be tried at the assizes, although they be not removed by certiorari. R. v. Wetherell, R. & R. 381.

Although the grand jury have been formally discharged, yet if they have not left the precincts of the court, nor separated, they may be recalled and charged with other bills. Reg. v. Holloway, 9 C. & P. 43.

It may be necessary to mention, that if a bill be thrown out, although, as it seems, it cannot again be preferred to the same grand jury, during the same assizes or sessions, (see Reg. v. Humphreys, C. & Mar. 601; sed quaere, see Reg. v. Newton, 2 M. & Rob. 503), it may be preferred and found at the next sessions or assizes, if no time be limited for preferring it, or if the time have not elapsed.

Proceeding by writ.] — If a defendant against whom an indictment has been found happen to be present in court, or in the custody of the court, he may at once be arraigned upon the indictment, without any previous process; 2 Hawk. c. 27; but if he appears voluntarily, it is discretionary in the court to detain him, or leave him to be taken in the ordinary way. Hewson's case, 2 Lewin's C. C. 277. Where the defendant is in the custody of another Court, the course is to remove him by habeas corpus, and bring him up to plead. When an indictment for a misdemeanor has been found, a writ of venire facias ad respondendum may be issued either by the Queen's Bench, a judge of assize, or a court of quarter sessions. Com. Dig. Process, A. 1; 6 Edw. 3, c. 11; 3 Edw. 1, c. 14. (See OUTLAWRY, post, p. 73.) If default in appearing be made, a writ of distringas is issuable; and it may be remarked, that in the case of indictments against the inhabitants of a county, parish, or district, or against a corporation aggregate, a writ of distringas is issuable in the first instance. The form of a distringas is as follows:—

Victoria, etc., to the sheriff of the county of —, greeting. We command you that you omit not by reason of any liberty in your bailiwick, but that you enter the same, and distrain A. B., of—, in your county [yeoman], by all his lands and tenements, etc., and that you answer far the issues thereof, etc.; and that you have his body before our justices assigned to keep our peace, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, at — in your said county, on the — day of— next ensuing, to answer unto us concerning divers trespasses, contempts, and offences of which he is indicted [or, to answer unto us upon certain articles presented against him the said A. B.], and have you there then this writ. Witness C. D. and E. F. [two justices of the peace] at —, the — day of —, in the — year of our reign.

If the party appear, a supersedeas may be obtained, either to stay the execution of the writ, or procure a return of the amount levied. 4. & 5. W. & M. c. 18; 10 East, 83; 2 Stra. 816, 1101; 8 Mod. 16; Bac. Abr. tit. Attorney, B. But if the defendant fail to appear the limited time, and the sheriff make a return that he hath no land a writ of capias ad respondendum may be issued, and if he cannot be taken upon the first capias, a second and a third, called an alias and a pluries, may issue. 4 Bla. Com. 319; 4 T.R. 506, 521, 694; 2 H. Bl. 419. Upon an indictment for felony a writ of capias is issued in the first instance; but this mode of proceeding is now rarely adopted, except in process to outlawry. (See post, p. 72.)

The following is the form of the writ of Capias:

Victoria, etc., to the sheriff of the county of—, greeting. We command you that you omit not by reason of any liberty in your bailiwick, but that you enter the same, and take A. B. of— in your county [labourer], if he should be found in your bailiwick, and him cause to be safely kept, so that you have his body before our justices assigned to keep our peace, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, at — in your said county, on the — day of— next ensuing, to answer unto us concerning divers trespasses, contempts, and offences of which he is indicted, and have you there then this writ. Witness C. D. and E. F. [two justices of the peace] at —, the — day of —, in the — year of our reign.

Proceeding by warrant of a justice.]—Proceedings in ordinary cases are now regulated by 11 & 12 Vict. c. 42, s. 3, by which it is provided, that where any indictment shall be found by the grand jury in any court of oyer and terminer or general gaol delivery, or in any court of general or quarter sessions of the peace, against any person who shall then be at large, and whether such person shall have been bound by any recognizance to appear to answer to the same or not, the person who shall act as clerk of the indictments at such court of oyer and terminer or gaol delivery, or as clerk of the peace at such sessions at which the said indictment shall be found, shall at any time afterwards, after the end of the sessions of oyer and terminer or gaol delivery or sessions of the peace at which such indictment shall have been found, upon application of the prosecutor, or of any person on his behalf, and on payment of a fee of one shilling, if such person shall not have already appeared and pleaded to such indictment, grant unto such prosecutor or person a certificate (see infra) of such indictment having been found ; and upon production of such certificate to any justice or justices of the peace for any county, riding, division, liberty, city, borough, or place in which the offence shall in such indictment be alleged to have been committed, or in which the person indicted in and by such indictment shall reside or be, or be supposed or suspected to reside or be, it shall be lawful for such justice or justices, and he and they are hereby required, to issue his or their warrant (see infra) to apprehend such person so indicted, and to cause him to be brought before such justice or justices, or any other justice or justices for the same county, riding, division, liberty, city, borough, or place, to be dealt with according to law; and afterwards, if such person be thereupon apprehended and brought before any such justice or justices, such justice or justices upon its being proved upon oath or affirmation before him or them that the person so apprehended is the same person who is charged and named in such indictment, shall, without further inquiry or examination, commit (see infra) him for trial, or admit him to bail, in manner hereinafter mentioned.

cont.