A CONCISE EXPOSITION OF THE NATURE OF CRIME,

THE VARIOUS OFFENCES PUNISHABLE BY THE ENGL1SH LAW,

AND THE LAW OF SUMMARY CONVICTIONS.

WITH

TABLE OF OFFENCES, THEIR PUNISHMENTS AND STATUTES

TABLES OF CASES. STATUTES, &c.

BY

AUTHOR OF "A CONCISE DIGEST OF THE INSTITUTES 0F GAIUS AND JUSTINIAN"

SEVENTH EDITION

BY

CHARLES L. ATTENBOROUGH.

OF THE INNER TEMPLE, AND OF THE MIDLAND CIRCUIT, BARRISTER-AT-LAW.

LONDON:

STEVENS & HAYNES,

BELL YARD, TEMPLE BAR.

1896

EXTRACTS

A. The most usual mode is by indictment, and it is desirable, in the first place, to say a few words on Presentment. This term, taken in a wide sense, includes both indictments by a grand jury and inquisitions of office. In a narrow sense it refers to the former only, and is the formal notice taken by a grand jury of any matter or offence from their own knowledge or observation, without any bill of indictment having been laid before them at the suit of the Crown, as the presentment of a libel, nuisance, &c„ upon which the officer of the court must afterwards frame an indictment before the party prosecuted can be put to answer it(c). So that it differs from the ordinary proceeding merely inasmuch as no bill is delivered by an individual prosecutor, but the grand jury initiate the proceedings.

All Inquisition of office is the act of a jury summoned to inquire of matters relating to the Crown upon evidence laid before them. The most common kind of inquisition is that of the coroner, which is held with a view to find oat the cause of death. The accused is arraigned upon the inquisition (a).

An Indictment is a written accusation of one or more persons of a crime, preferred to, and presented on oath by, a grand jury. It lies for all treasons and felonies, for misprisions of either, and for all misdemeanors of a public nature at common law (b). If a statute prohibits a matter of public grievance, or commands a matter of public convenience (such as the repairing of highways, or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment if the statute specifies no other mode of proceeding (c). If the statute specifies a mode of proceeding different from that by indictment, then, if the matter was already an indictable offence at common law, and the statute introduces merely a different mode of prosecution and punishment, the remedy is cumulative, and the prosecutor has still the option of proceeding by indictment at common law, or by the mode pointed out by the statute (d).

We shall presently deal with the preferment of an indictment to the grand jury; but first we must examine into the nature of such form of accusation. And for this purpose it will be well to give an example of an indictment, say for larceny at common law:

Three parts masked off in the above form are to be distinguished: (a) the Commencement; (b) the Statement; (c) the Conclusion.

(a) The Commencement.-In this the only part which requires comment is the venue, or the statement of the county or other division from which the grand jury by whom the indictment was found have come, and, as a general rule, where the crime was committed. It is the index of the place where, in regular coarse, the trial is to be had (a). The consideration of this matter will be reserved for a separate chapter.

(b) The Statement.-This, the principal part of the indictment, mast set forth with certainty all the facts and circumstances essential to constitute the crime; and must directly charge the accused with having committed it.

The defendant's name must be given correctly; or, if it is not known, he must be described as a person whose name is 40 the jurors unknown, but who is personally brought before them by the gaoler. So also with regard to the name of the person against whom the crime has been committed.

The ownership of any property in respect of which the offence was committed must be rightly laid. The property in goods of a deceased person must be laid in the executors or administrators, or if there are neither, then in a judge of the Probate Division. Formerly the property in goods of a married woman must have been laid in her husband, unless there had been a judicial separation, or a protection order. But by the Married Women's Property Act, 1882 (b), it is now sufficient to allege that the goods are the property of the wife. If the goods

[cont.]

A coroner's inquisition is the record of the finding of the jury sworn to inquire, super visum corporis, concerning a death. On this a person may be prosecuted for murder or manslaughter without the intervention of a grand jury, for the finding of the coroner's jury is itself equivalent to the finding of a grand jury. ' The defendant is arraigned on the inquisition as on an indictment; and the subsequent proceedings are the same. It is a common, but by no means a necessary practice, when a prisoner stands charged on a coroner's inquisition with murder or manslaughter, to take him before a magistrate, and upon the magistrate committing him for trial, to prefer an indictment against him. He is then tried both on the inquisition and the indictment at the same time.

The proceedings upon a coroner's inquest are shortly the following:- On receiving due notice of the death, the coroner issues his warrant for summoning a jury (which must consist of not more than twenty-three nor less than twelve), and names the time and place of inquiry. At the court the jury are sworn, and then view the body. The witnesses are examined on oath, and their evidence is put into writing by the coroner (c). He has authority to bind by recognizance all material witnesses to appear at the assizes to prosecute and give evidence; and he must certify and subscribe the evidence and all such recognizance and the inquisition before him taken, and (if a verdict is found against any person and he is committed for trial) deliver the same to the proper officer of the court in which, the trial is to be, before or at the opening of the court (a).

The inquisition consists of three parts: the caption or incipitur, the verdict of the jury, and the attestation (b). The rules as to certainty, description, &c., which prevail in the case of an indictment, apply also to an inquisition, and full power to amend defects or variances is given by statute (c).

If the jury (twelve of whom at least must concur in the verdict (d)) return a verdict of murder or manslaughter, or of being accessory before the fact to a murder, against a person, the coroner must commit him for trial, if present, and if not in custody the coroner must issue a warrant for his apprehension (e). If an inquest ought to be held over a dead body, it is a misdemeanor so to dispose of the body as to prevent the coroner from holding the inquest (f). From the foregoing inquiry we find that, apart from proceedings by way of summary conviction, the only modes of criminal procedure are by way of indictment, information, or inquisition. Of these, proceedings by indictment are much the most common; and, unless anything be stated to the contrary, it will be this mode that will be kept in view in the succeeding pages (g). We have already seen (h) that a private individual is not obliged to set the law in motion for the prosecution of a criminal. But when he has given information or made complaint before a justice of the peace, on which the party charged with an indictable offence has been apprehended, he is then obliged to give evidence before such justice; and if the accused is committed for trial he may be, and usually is, bound over by recognizance to prosecute and give evidence (a).

In order however to provide more effectively for the prosecution of offences, Acts have been passed to provide for the appointment of a Director of Public Prosecutions with a staff of assistants (b). That office is now held by the Solicitor, for the time being, to the Treasury.

The duty of the Director of Public Prosecutions is set forth to be - to institute, undertake, or carry on, under the superintendence of the Attorney-General, criminal proceedings, and to give such advice and assistance to chief officers of police, clerks to justices, and other persons concerned in any criminal proceeding, respecting the conduct of that proceeding, as may be for the time being prescribed by rules made under the Act, or may be directed in a special case by the Attorney-General (c).

The rules referred to were to provide for the Director of Public Prosecutions taking action in cases of importance or difficulty, or in which special circumstances, or the refusal or failure of a person to proceed with a prosecution, rendered the action of the Director necessary to secure the due prosecution of an offender (d).

These regulations were published in the year 1886, and are to the following effect:-

The cases in which, it shall be the duty of the Director of Public Prosecutions to carry on a criminal proceeding are: where the offence is punishable with death, or is of a class the prosecution of which has hitherto been undertaken by the Solicitor to the Treasury; or where an order in that behalf is given by the Secretary of State or the Attorney-General; or where it appears to the Director that the offence is of such a character that a prosecution is required in the public interest, and that, owing to the

Who are the grand jury? The sheriff of every county is required to return to every sessions of the peace, and every commission of oyer and terminer, and of gaol delivery, twenty-four good and loyal men of the county "to inquire into, present, do and execute all those things which, on the part of our Lady the Queen, shall then be commanded them." Grand jurors at the assizes, or at the borough sessions (at the latter they must be burgesses, 45 & 46 Vict. c. 50, s. 186), do not require any qualification by estate; at the county sessions they must have the qualification required of petty jurors (a). At the assizes, the grand jury generally consists of gentlemen of good standing in the county.

After the court has been opened in the usual way by the crier making proclamation, the names of those summoned on the grand jury are called. As many as appear upon this panel are sworn. They must number twelve at least, but not more than twenty-three, so that twelve may be a majority (b). The usual proclamation against vice and proneness is read; and then the person presiding in the court - the judge at the assizes, the chairman at the county sessions, the recorder at the borough sessions - charges the grand jury. The object of this charge is to assist the grand jury in coming to a right conclusion, by directing their attention to points in the various cases about to be considered by them which require special attention.

The charge having been delivered, the grand jury withdraw to their own room, having received the bills of indictment. The witnesses whose names are indorsed on each bill are sworn as they come to be examined in the grand jury room, the oath being administered by the foreman, who, as each witness is examined, writes his initials opposite to the name on the back of the bill (a). Only the witnesses for the prosecution are examined, as the function of the grand jury is merely to inquire whether there is sufficient ground to put the accused on his trial. If the majority of them (which majority must consist of twelve at least) think that the evidence adduced makes out a sufficient case, the words " a true bill " are indorsed on the back of the bill; if they are of the opposite opinion, the words " not a true bill " are so indorsed, and in this case the bill is said to be ignored or thrown out. They may find a true bill as to the charge in one count, and ignore that in another; or as to one defendant and not as to another; but they cannot, like a petty jury, return a special or conditional finding, or select part of a count as true and reject the other part (b). When one or more bills are found, some of the grand jury come into court and hand the bills to the clerk of arraigns, or clerk of the peace, who states to the court the name of the prisoner, the charge, and the indorsement of the grand jury. They then retire and consider other bills, until all are disposed of; after which they are discharged by the judge, chairman, or recorder, presiding.

If the bill is thrown out, although it cannot again be preferred to the grand jury during the same assizes or sessions, it may be preferred and found at subsequent assizes or sessions, of course within the time limited for the prosecution, if there be any time so limited (a). 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.

We have pursued the ordinary method of criminal Bills preferred procedure by supposing that, in the first instance, there has been an examination before the magistrate. But this need not always take place. With certain exceptions, 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, a 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 Indictments Act (b). It provides that no bill of indictment for any of the offences Act, enumerated below, shall be presented to or found by a grand jury unless one of the following steps has been taken:-

The offences 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 (a), any misdemeanor under the second part of that Act; also by the Newspaper Libel and Registration Act, 1881 (b), libel and offences against that Act ; misdemeanors under the Criminal Law Amendment Act, 1885 (c); lastly, indictable offences under the Merchandise Marks Act, 1887 (d). The object of this salutary provision was furthered by a subsequent statute (e), which allows the court trying an indictment for any of such offences (unless the defendant has been bound over to answer the indictment) in its discretion, to order the prosecutor to pay costs and expenses to the accused in the event of the latter's acquittal. The Vexations Indictments Act does not, however, apply to cases where the court itself has given leave for the indictment to be preferred (f).

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 attendance of the accused to answer the charge. Of course this is not required if he is in custody or if, having been bound by recognizance to appear and take his trial, he 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 absence of the accused, and he is not in custody and 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 11 & 12 Vict. c. 42, s. 3. When an indictment has been 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 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 m which the accused resides, or is, or is suspected of residing or being, such justice 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 (a). Provision is also made for the backing of such warrant if the accused is out of the above jurisdiction (b). 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 (c).

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. It has been said, however, that this process only applies to cases of misdemeanor (d). Any judge of the Queen's Bench Division, upon affidavit or certificate that an indictment has been found, or information filed in that court, against any person for a misdemeanor, may issue his warrant for apprehending and holding the accused to bail, and in default of bail he may commit him to prison (e).

In cases not provided for as above, the following are the steps. In misdemeanors, when an 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 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.

[cont.]