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CHAP. XLIX.

CRIMINAL PROCEEDINGS.

[See 4 Black. Com. chaps. 21-32; 4 Steph. Com. chaps. 16-26.]

Having described, in as ample a manner as the limits of our volume would admit, the several crimes and misdemeanors of which offenders may be guilty, with the means of preventing offences, and the proceedings on summary convictions, we now purpose to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction, which may be distributed under eleven general heads, following each other in a progressive order, viz.,3, Information and arrest; 2, Commitment and bail; 1, Prosecution; 4, Process; 5, Arraignment and its incidents; 6, Plea and issue; 7, Trial and conviction; 8, Judgment and its consequences; 9, Reversal of judgment; 10, Reprieve or pardon; 11, Ex

ecution.

SECT. I.-INFORMATION AND ARREST.

[See 4 Black. Com. chap. 21; 4 Steph. Com. chap. 16.]

Arrest is the apprehending or restraining one's person, in order to be forthcoming to answer an alleged or supposed crime. Arrests may be made,

1, By warrant; 2, By an officer without a warrant ; 3, By a private person without a warrant; and, 4, By hue and cry.-First, A warrant is a precept, under the hand and seal of some magistrate, issued on some charge (called an information or complaint) made upon oath, setting forth the time and place of making it, and the cause for which it is made, to bring an offender before a magistrate, for the purpose of examining into the truth of the charge. A justice of the peace may, by 11 & 12 Vic. c. 42, s. 1, issue a warrant to apprehend a person accused of treason, felony, of offences on the high seas or abroad, or any other indictable offence; and, if properly penned, it will indemnify the officer who executes it. Where the offence was not of a serious nature, it was even formerly usual to issue a summons merely in the first instance; and now, by 11 & 12 Vic. c. 42, the magistrate may, if he please, issue a summons in all cases in the first instance. If the summons be not obeyed, a warrant may issue. In the case of a summons issuing, the information or complaint may be by word of mouth merely, without any oath to substantiate it. The summons must be served by a constable on the defendant personally, or by leaving the same for him with some one at his last or most usual place of abode.

Backing warrants.]-Formerly there ought to have been a fresh warrant for every county; but the practice of backing warrants had long prevailed without law, and was at last authorised by the 23 Geo. 2, c. 26, and 24 Geo. 2, c. 55. By the 13 Geo. 3, c. 31, and 54 Geo. 3, c. 186 (now repealed by 11 & 12 Vic. c. 42), and other acts, provisions were made as to the apprehension of offenders who have gone from one part of the United Kingdom to another; and by 6 & 7 Vic. c. 34, as

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to the apprehension in the United Kingdom of sons committing treason or felony out of the United Kingdom, and vice versa. But now, by 11 & 12 Vic. c. 42, complete regulations are made for the backing of warrants. By s. 11, where the defendant is not within the jurisdiction of the justice issuing the warrant (in England or Wales), a justice for the county or place where he shall be, or be supposed or suspected to be, shall, on oath of signature to the original warrant, sign an indorsement thereon, authorising the execution of the warrant within his jurisdiction. By s. 12, English warrants may be backed in Ireland, and vice versa. By s. 13, English warrants may be backed in the Isles of Man, Guernsey, Jersey, Alderney, and Sark, and vice versa. By s. 14, English warrants may be backed in Scotland. By s. 15, Scotch warrants may be backed in England or Ireland.

Warrant by privy council.]-In cases of treason, or offences affecting the Government, the privy council, or one of the secretaries of state, may grant a warrant. So, in case of felony, may a judge of the the Court of Queen's Bench.

Arrest without warrant.] - Secondly, a justice of peace, or a constable, may apprehend a person for felony or breach of the peace in his own view, without warrant. The sheriff and coroner may apprehend any felon within the county without a warrant. A constable may apprehend all offenders, particularly night-walkers, and commit them to custody till morning. A number of statutes give a constable, and in many cases a party injured, this power of arresting without warrant.-Thirdly, any private person that is present when a felony is committed is bound, on pain of fine and imprisonment,

to arrest the offender. By the 7 Geo. 4, c. 64, s. 28, a person actively aiding in the apprehension of a person guilty of murder, or other heinous crime, may be compensated.-Fourthly, the constable, on information given him of a felony is bound to make hue and cry.

SECT. II.-COMMITMENT AND BAIL.

[See 4 Black. Com. chap. 22; 4 Steph. Com. chap. 17.]

When a delinquent is arrested, he must be carried without delay before a magistrate (even in offences committed within the jurisdiction of the Admiralty), where he must be either bailed or committed, unless it manifestly appear that he is not guilty of the crime laid to his charge, in which case only is it lawful to discharge him without bail. The proceedings on the hearing, commitment, and bailing are regulated by the 11 & 12 Vic. c. 42, and are as follows:

Court, &c.]-The place where the examinations are taken is not to be deemed an open court, and no person is to remain without the consent of the justice. One London, metropolitan, or stipendiary magistrate may act alone.

Remanding.]—If a person be apprehended in one county on a charge of an offence committed in another, he may be examined in the former, and if the evidence be deemed sufficient, he may be committed to prison; but if insufficient, he is to be brought before some justice of the latter county. As to remanding a prisoner, the justice may, if it be necessary or advisable, by warrant, remand the accused from time to time, for any reasonable period not

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exceeding eight clear days. If the remand be for not more than three clear days, no warrant is requisite. On the remand, the accused may be admitted to bail.

Witnesses.]—If a witness will not voluntarily attend, and it be so sworn, the justice may issue a summons to compel his appearance, and if not obeyed, a warrant to apprehend him may issue. Indeed, a warrant may issue in the first instance, where the justice is satisfied by oath that it is probable the witness will not voluntarily attend. If a witness refuse to be sworn or examined, he may be committed for seven days. The statements of a witness are to be reduced into writing, read over, and signed by him, and also signed by the justice. It is provided (s. 17), that the depositions of persons who have died, or who are so ill as not to be able to travel, may be read as evidence, if shown to have been duly taken.

Prisoner's defence.]—After the examinations of all the witnesses on the part of the prosecution have been completed, the justice must, without requiring the attendance of the witnesses, read or cause to be read to the accused the depositions taken against him, and say to him these words, or words to the like effect: "Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial;" and whatever the prisoner then says in answer thereto must be taken down in writing, and read over to him, and be signed by the said justice, and kept and transmitted with the depositions of the witnesses;

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