Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844. Various

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СКАЧАТЬ only on behalf of the prosecution; "for," says the learned commentator already quoted, "the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon a party to answer it." They ought, however, to be fully persuaded of the truth of an indictment as far as the evidence goes, and not to rest satisfied with remote probabilities; for the form of the indictment is, that they, "upon their oath, present" the party to have committed the crime. This form, Mr Justice Coleridge observes, is perhaps stronger than may be wished, and we believe that the criminal law commissioners are now seriously considering the propriety of abolishing it.

      After hearing the evidence, the grand jury endorse upon the bill their judgment of the truth or falsehood of the charge. If they think the accusation groundless, they write upon it, "not found," or "not a true bill;" in which case the bill is said to be ignored: but, on the other hand, if twelve at least are satisfied of the truth of the accusation, the words "true bill" are placed upon it. The bill is then said to be found. It then becomes an indictment, and is brought into court by the grand jury, and publicly delivered by the foreman to the clerk of arraigns, or clerk of the peace, as the case may be, who states to the court the substance of the indictment and of the indorsement upon it. If the bill is ignored, and no other bill is preferred against the party, he is discharged, without further answer, when the grand jury have finished their labours, and have been themselves discharged. To find a bill, twelve at least of the jury must agree; for no man, under this form of proceeding at least, can be convicted even of a misdemeanour, unless by the unanimous voice of twenty-four of his equals; that is, by twelve at least of the grand jury assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon the trial.

      This proceeding is wholly ex parte. As the informal statement of the crime brought the supposed criminal to answer before the inferior tribunal, so does the formal accusation call upon him to answer before the superior court. The preliminary proceedings being now complete, and every step having been taken which is necessary to put the accused upon his trial, the ex parte character of the proceedings is at an end. The time approaches when the accused must again be brought face to face with his accusers; and when, if he has been admitted to bail, his sureties must deliver him up to the proper authorities, or their bond is forfeited; in which case, a bench warrant for the apprehension of the delinquent may issue; and if he cannot still be found, he may be pursued to outlawry. It may be here mentioned, that the proceedings may be, at any period, removed from any inferior court into the Queen's Bench, by what is called a writ of certiorari. When the offender appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is to be immediately arraigned. The arraignment is simply the calling upon the accused, at the bar of the court, to answer the matter charged upon him in the indictment, the substantial parts, at least, of which are then read over to him. This is indispensable, in order that he may fully understand the charge. So voluminous are the counts of the indictment recently found against Mr O'Connell and others, that the reading of the charges they contained was the work of many hours. The accused is not always compelled immediately to answer the indictment; for if he appear in term-time to an indictment for a misdemeanour in the Queen's Bench, it is sufficient if he plead or demur within four days; the court has a discretionary power to enlarge the time; but if he neither pleads nor demurs within the time prescribed, judgment may be entered against him as for want of a plea. It he appear to such an indictment, having been committed or held to bail within twenty days before the assizes or sessions at which he is called upon to answer, he has the option of traversing, as it is termed, or of postponing his trial to the next assizes or sessions. He is also always entitled, before the trial, on payment of a trifling charge, to have copies of the examinations of the witnesses on whose evidence he was committed or held to bail; and at the trial he has a right to inspect the originals gratuitously. In prosecutions for misdemeanours at the suit of the Attorney-General, a copy of indictment must be delivered, free of expense, if demanded by the accused. These seem to be all the privileges except that of challenge, which we shall explain hereafter, which the accused possesses, or to which the law gives him an absolute indefeasible claim as a matter of right. The practice of different courts may possibly vary in some degree on points such as those which have been recently mooted in Ireland; for instance, as to whether the names of the witnesses should be furnished to the accused, and whether their address and description should also be supplied. In such matters the practice might vary, in a considerable degree, in the superior courts of England and Ireland; and yet each course would be strictly legal, in the respective courts in which it was adopted; for, as it was clearly put by one of the Irish judges on a recent occasion, the practice of the court is the law of the court, and the law of the court is the law of the land.

      When the time has arrived at which the accused must put in his answer to the indictment, if he do not confess the charge, or stand mute of malice, he may either plead, 1st, to the jurisdiction, which is a good plea when the court before whom the indictment is taken has no cognizance of the offence, as when a case of treason is prosecuted at the quarter sessions; or, 2dly, he may demur, by which he says, that, assuming that he has done every thing which the indictment lays to his charge, he has, nevertheless, been guilty of no crime, and is in nowise liable to punishment for the act there charged. A demurrer has been termed an issue in law—the question to be determined being, what construction the law puts upon admitted facts. If the question of law be adjudged in favour of the accused, it is attended with the same results as an acquittal in fact, except that he may be indicted afresh for the same offence; but if the question be determined against the prisoner, the law, in its tenderness, will not allow him, at least in cases of felony, to be punished for his misapprehension of the law, or for his mistake in the conduct of his pleadings, but will, in such case, permit him to plead over to the indictment—that is, to plead not guilty; the consequences of which plea we will consider hereafter.

      A third alternative is a plea of abatement, which is a plea praying that the indictment may be quashed, for some defect which the plea points out. This plea, though it was recently, made use of by the defendants in the case now pending in Ireland, is of very rare occurrence in ordinary practice—a recent statute having entirely superseded every advantage formerly to be derived from this plea, in cases of a misnomer, or a wrong name, and of a false addition or a wrong description of the defendant's rank and condition, which were the principal occasions on which it was resorted to.

      The next alternative which the prisoners may adopt, is a special plea in bar. These pleas are of four kinds: 1. a former acquittal; 2. a former conviction; 3. a former attainder; 4. a former pardon, for the same offence. The first two of these pleas are founded on the maxim of the law of England, that no man is to be twice put in jeopardy for the same offence. A man is attainted of felony, only by judgment of death, or by outlawry; for by such judgment, the prisoner being already dead in law, and having forfeited all his property, there remains no further punishment to be awarded; and, therefore, any further proceeding would be superfluous. This plea has, however, been practically put an end to by a recent statute. A plea of pardon, is the converse of a plea of attainder; for a pardon at once destroys the end and purpose of the indictment, by remitting that punishment which the prosecution was calculated to inflict.

      All these pleas may be answered by the crown in two ways—issue may be joined on the facts they respectively set forth; or they may be demurred to; by which step, the facts, alleged in the plea, are denied to constitute a good and valid defence in law. In felony, if any of these pleas are, either in fact or in law, determined against the prisoner, he cannot be convicted or concluded by the adverse judgment; and for this reason. Formerly all felonies were punishable with death, and, in the words of Mr Justice Blackstone, "the law allows many pleas by which a prisoner may escape death; but only one plea in consequence whereof it can be inflicted, viz., the general issue, after an impartial examination and decision of the facts, by the unanimous verdict of a jury." The prisoner, therefore, although few felonies remain still capital, is nevertheless still allowed to plead over as before. In misdemeanours, however, which are never capital, and in which, therefore, no such principle could ever have СКАЧАТЬ