CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

WE are next, in the fourth place, to inquire into the manner [ 318 ] of issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he has fled, or secretes himself; or has not been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And, if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears: according to the rules of equity in all cases, and the express provision of the statute 28 Edw. III. c. 3, in capital ones, that no man shall be put to death, without being brought to answer by due process of law.

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The usual course of proceeding where an indictment has Warrant. been found against a defendant previous to his arrest, is that provided by the statute 11 & 12 Vict. c. 42, s. 3. Where the indictment is found in a court of oyer and terminer, or general gaol delivery, or in a court of general or quarter sessions of the peace, against a person who is then at large, the clerk of the indictments at such court of oyer and terminer or gaol delivery, or the clerk of the peace at the sessions at which the indictment has been found, is bound upon the application by the prosecutor, if the defendant has not already appeared and pleaded thereto, to grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the peace for the place in which the offence is alleged in the indictment to have been committed, or in which the defendant resides or is, or is supposed to reside or be, such justice is bound to issue his warrant to apprehend the de

Venire facias.

fendant, that he may be brought before him or any other justice for the same place, to be dealt with according to law. Upon the defendant being brought before any such justice, the latter, on proof of the identity of the person, is bound, without further inquiry or examination, to commit him for trial or admit him to bail as in ordinary cases. If it so happen that the defendant is already in prison for some other offence, the justice, on production of the certificate and proof of the identity of the person indicted with the person in prison, must issue his warrant to the gaoler commanding him to detain the accused in custody, until he is removed by writ of habeas corpus, or is otherwise removed or discharged out of his custody in due course of law.'

If the accused is known to have fled, so that he cannot be arrested under a warrant, and the prosecutor desires to proceed to outlawry, he must resort to the ancient and regular process of the court. This,' on an indictment for any petit misdemeanor, or on a penal statute, was formerly in all cases' a writ of venire facias, in the nature of a summons to cause the party to appear. And if by the return to such venire it appeared that the party had lands in the county whereby he might be distrained, then a distress infinite was issued from time to time till he appeared. But if the sheriff returned that he had no lands in his bailiwick, then (upon his nonappearance) a writ of capias issued, which commanded the [319] sheriff to take his body, and have him at the next assizes; if he could not be taken upon the first capias, a second and a third issued, called an alias and a pluries capias.

Distringas.

Capias.

In the case of indictments against the inhabitants of a county, parish, or district, or against a corporation aggregate, a writ of distringas is the first process.'

On indictments for treason or felony, a capias, when a warrant is not obtained,' is the first process: and, for treason or homicide, only one shall be allowed to issue. Two are allowed in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage continues to issue one only in any felony; the provisions of this statute being in most cases found impracticable. And so, in the case of misdemeanors, it became the usual practice for any judge of the Court of

2 Hal. P. C. 195.

King's Bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant, until the stat. 48 Geo. III. c. 58, enabled any one of the judges in such cases, on production of an indictment, or on an information being filed, to issue his warrant for apprehending the defendant and holding him to bail.'

outlawry.

If the defendant, as I have said,' absconds, and it is Outlawry. thought proper to pursue him to an outlawry, then a greater exactness is necessary. For, in such case, after the several writs of venire facias, distringas, and capias have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry; that is, he shall be exacted, proclaimed, or required to surrender, at five county courts; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law; so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise. The punishment for out- Punishment for lawries upon indictments for misdemeanors is the same as for outlawries upon civil actions (of which, and the previous process by writs of capias, exigi facias, and proclamation, we spoke in the preceding volume), viz. forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country.b His life is, however, still under the protection of the law, as [320] has formerly been observed: so that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf by any one that should meet him; because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him: yet now, to avoid such inhumanity, it is held that no man is entitled to kill him wantonly or wilfully; but in so doing is guilty of murder, unless it happens in the endeavour to apprehend him. For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him

b2 Hal. P. C. 205.

Mirr. c. 4, § 4; Co. Litt. 128.

d

Certiorari.

to execution. But such outlawry may be frequently reversed by writ of error; the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial; and, if any single minute point be omitted or misconducted, the whole outlawry is illegal, and may be reversed: upon which reversal the party accused is admitted to plead to, and defend himself against, the indictment.

Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is that writs of certiorari facias are usually had, though they may be had at any time before trial (unless taken away by the express words of a statute'), to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the Court of Queen's Bench; which is the sovereign ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes; either, 1. To consider and determine the validity of indictments or the proceedings thereon; and to quash or confirm them as there is cause: or, 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the Court of Queen's Bench, or before the justices of nisi prius, or at the Central Criminal Court: or, 3. It is so removed, in order to plead [321] the royal pardon there: or, 4. To issue process of outlawry against the offender in those counties or places where the process of the inferior courts will not reach him. Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the Court of Queen's Bench remands the record to the court below, to be there tried and determined. A certiorari may be granted at the instance of either the prosecutor or the defendant: and although formerly the application by the prosecutor was

'In Tynte v. Reginam, 7 Q. B. 216, a judgment of outlawry, pronounced in 1729, was reversed after the lapse of 116 years.'

A certiorari may be applied for

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granted as a matter of right, it is now in all cases (except when the application is at the instance of the attorneygeneral) in the discretion of the court to grant or withhold the writ;' and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined or confession of the fact in any of the courts below. Where the defendant is allowed to remove an indictment by certiorari, he must enter into a recognizance before a justice, conditioned as required by the stats. 5 & 6 W. & M. c. 11, and 8 & 9 Will. III. c. 33; and whether removed at the instance of a prosecutor or of a defendant, the party removing must enter into a recognizance to pay the costs subsequent to the removal in the case of acquittal or conviction, as the case may be."

At this stage of prosecution also it is that indictments found by the grand jury against a peer must in consequence of a writ of certiorari be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter, and confirmed by Act of Parliament, to be there respectively tried and determined.

j 5 & 6 Will. IV. c. 33.

2 Hawk. P. C. 287; Rex v. Gwynne et al., 2 Burr. 749. 116 Vict. c. 30, s. 5.