299 Prosecutions for Crime. [Book IV. of vacation) may bail for any crime whatsoever, be it treason (n), murder (o), or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discre tionary power of bailing in any case: except only, even to this high jurisdic tion, and of course to all inferior ones, such persons as are committed by either house of so as the ^session lasts; or such as are com- r*

CHAPTER XXIII. OF THE SEVERAL MODES OF PROSECUTION.

The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. (1) And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous find ing. The former way is either by presentment or indictment. X A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice

(n) In the reign of Queen Elizabeth It was the unanimous opinion of the judges, that no court could bail upon a commitment lor a charge of high treason, by any of the queen's privy council. 1 Anders. 898. dimitti, (o) In omnibus placitis de felonia tolet accusatus per plegioa prceterquam in placito dmKomi- cirlio. (Olan. 1.14,o. 1.) Sciendum tamen Quod, in hoc placito non tolet aeoumatut per plegiot dimitti, nisi ex regice pottstatis beneftcio. (Ibid. c. !.) (p) StaundfTP. 0. 78,6. (j) 2 Hal. P. C. 128. (r) 2 Inst. 881. 8 Inst. 81. («) Flet. i. 1. c. 28.

(1) It is a requirement of constitutional law that a person accused of crime shall be en titled to a speedy trial, and this has been said to mean a trial so soon after indictment u the prosecution can, by a fair exercise of reasonable diligence, prepare for trial, regard be ing had to the terms of court. U. 8. v. Fox, 3 Montana, 512. By the Habetu Corpus Act, 31 Car. II. c. 2, § 7, a person committed for treason or felony must be indicted at the next term or sessions', and if not indicted and tried in the second term or sessions, he shall be du> charged from confinement, unless the delay arises from the impossibility of reaching wit nessea for the prosecution. Similar provisions are found in the statutes of the American States, and there are general statutes limiting the time within which prosecutions for crimi nal offenses shall be instituted. 462 Chap. 23.] Prosecutions foe Ceime. 301

taken by a grand jury of any offence from their own knowledge or observation, . (a) without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, (&) before the party presented can be put to answer it. An inquisition of office is the act of a jury sum moned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury, ought to hear all that can be alleged on both sides. Of this nature are all in quisitions of fdodese; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriffs tourn or court- leet, whereupon the presiding officer may set a fine. (2) Other inquisitions may be afterwards traversed and examined: as particularly the coroner's ♦inquisition of the death of a man, when it finds any one guilty of *■r*o0oi* homicide; (3) for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. H. An indictment (c) is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the them, part of our lord the king, shall then and there be commanded (d) They ought to be freeholders, (4) but to what amount is uncertain: (e) which seems to Toe casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and un certain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so " early as the laws of king Ethelred. (/") Exeant seniores duodecim thani, et praifectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare." In the time

(a) Lamb. EirenarcK. I f. c 5 (6) 8 Intt. 789. (c) See Appendix, { L (d) 2 HaL P. a 154 («) Ibid. 186. (/) WUk. LL. Anal Sax. 117.

(2) Mr. Justice Coleridge points out an inaccuracy here. He shows that inquisitions of felo oU u may be traversed by the executors or administrators of the deceased. Toomes v. Etherington, 1 Saund. R, 808, n. 1, ed. 1824; that inquisition is not taken of the flight of persons accused of felony distinct from the felony; that the finding as to deodands is not so conclusive but that the court may interfere to diminish the value: Fost., 266; and that, as to presentments of petty offenses in the tourn or leet, Lord Mansfield has said that it cannot be true that they are not traversable anywhere: Cowp., 469; and the law seems to be that, before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of king's beneh, and traversed there. Rex v. Hea- ton, 2 T. R, 184. (3) That the finding of a coroner's jury is in itself an indictment upon which a trial may be had without the intervention of a grand jury, see R. v. Ingham, 9 Cox, 508. The old doctrine was that one might be put on trial for crime without indictment when a verdict had in a civil action involved finding one guilty of crime. As if in trespass the jury found the defendant stole the goods. 2 Hawk. P. C., c. 25, § 6; Com. Dig. Indictment, C. Or in slander for calling one a thief, and the jury found a justification made out. Bac. Abr. Indictment, B. 5. But no such proceeding is known to modern English law. Capital or other infamous crimes against the United States are only to be tried on indict ment. Const. U. S., Amendment 5. In a majority of the states there are similar constitu tional provisions, but in some the grand jury is abolished, and an information filed by n public prosecutor is substituted for an indictment (4) It is not essential that they be freeholders. Russ. and R, 177. 463 302 Prosecutions foe Ceime. [Book IV. of King Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to he taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. '^n'8 numDer was probably *found too and inconvenient; T*303l large but * the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously in structed in the articles of their inquiry, by a charge from the judge who pre sides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the pro secution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thor oughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes, {g) The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter anciently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them; but by statute 2 and 3 Edw. VI, c. 24, he is now indictable in the county where the party died. And, by statute 2 Geo. II, c, 21, if the stroke or poisoning be in England, and the death upon the sea, or out of England: or, vice versa; the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII, c. 13, 83 Hen. VTO, c. 23, 35 Hen. VIII, c. 2, and 5 and 6 Edw. VI, c. 11. And counterfeiters, washers, or mim8Ders *°f tne current coin, with all manner felons and r *Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where

the king's writ runneth: that is, at present in the county of Hereford or Salop;

and not, as it should seem, in the county of Chester or Monmouth: the one a being a county-palatine where the king's writ did not run, and the other part of in 26 Hen. Murders, also, whether committed in Wales, VIII. (i) England or foreign parts, (k) may by virtue of the statute 33 Hen. VHI, c. 23, be in- tired of and tried by the king's special commission in any shire or place in

S e kingdom. By statute 10 and 11 Wm. ni, c. 25, all robberies and other capital crimes, committed in Newfoundland, may be inquired of and tried in I, any county in England. Offences against the black-act, 9 Geo. c. 22, may be inquired of and tried in any county in England, at the option of the pro secutor. So felonies in turnpikes, or works upon navigable (I) destroying

rivers, erected by authority of parliament, may by statutes 8 Geo. H, c. 20, and 13 Geo. Ill, c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II, c. 19, plundering or stealing from any vessel in distress or

wrecked, or breaking any ship contrary to 12 Ann. st. 2, c 18 (m) maybepro-

(o) State Trials. It, IBS. (ft) Stra. 868. 8 Hod. 134. (flSee Hardr. St. :k) Ely's Case, at the Old Bailer, Dec. 1720. Boache's Case, Dec. 1778.

(/; So held by all the judges, H. 11Qeorge III, Id the case of Richard Mortis, on a case referred from the Oid Bailey. (ro) See page 244. 164 Chap. 23.] Prosecutions foe Crime. 304

secuted either in the county where the fact is committed, or in any county next adjoining; and, if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as by the statute 26 Hen. VIII, above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales. (r») Felonies com mitted out of the realm, in burning or destroying the king's ships, •magazines, or stores, may by statute 12 Geo. Ill, c. 24, be inquired of r*qn(;i and tried in any county of England, or in the place where the offence *• J is committed. By statute 13 Geo. Ill, o. 63, misdemeanors committed in India may be tried upon information or indictment in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into, as well as tried, in the county where the' fact is com mitted. Yet, if larceny be committed in one county, and the goods carried into another, the offender may be indicted in either; for the offence is com both, plete in (o) Or he may be indicted in England for larceny in Scot land, and carrying the goods with him into England, or vice versa/ or for receiving in one part of the united kingdom goods that have been stolen in another, (p) But for robbery, burglary, and the like, he can only be indicted where the. fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that juris diction. And if a person be indicted in one county for larceny of goods origin ally taken in another, and be thereof convicted, or stands mute, he shall not be admitted to his clergy: provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691. (g) (5) When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, " ignoramus;" or, we know nothing of it: intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English more " absolutely, not a true bill;" or (which is the better way) "not found;" and then the party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of

the truth of the accusation, they then *endorse upon it, "a true bill;" r*qnfii '

" *• anciently MUa vera." The indictment is then said to be found, and

the party stands indicted. But to find a bill there must at least twelve of the

jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours:

that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards, by the whole petit jury, of twelve more, finding if him guilty, upon his trial. But twelve of the grand jury assent, it is a good presentment, though some of the rest disagree, (r) And the indictment, when

so found, is publicly delivered into court.

(n) At Shrewsbury summer assizes, 1774,Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It was moved in arrest of Judgment, that Chester, and not Salop, was the next adjoining English county. But all the judges (in Mich. 15Geo. Ill) held the prosecu tion to be regular.

(o) 1 Hal. P. c. 607. (p) Stat. 18Geo. Ill, c 81. 8 2 («) Stat. 86Hen. Vffl, c. 3. W. and M. c. 9. (r) Hal. P. 0, 1«1. it it (5) Formerly was necessary to state the venue in the body of the indictment, but la

not so now. See statute 14 15 , c. 100, 23. as the ana Vic. § And court by the same statute has power to allow an amendment in the statement of the venue, an objection on this score does not often become available, unless the indictment on its face, or the evidence given

on the trial, shows that the court had no jurisdiction. And if the record on its face snows

the court to have no jurisdiction, a conviction cannot be sustained without amendment, notwithstandingthe court had jurisdiction in fact. Reg. v. Mitchell, 2 Q. B., 636. Vol. II.— 59 465 ( 806 Pbosecutions fob Crime. [Book IV.

Indictments must have a precise and sufficient certainty. (6) By statute 1 Hen. V, o. 5, all indictments must set forth the christian name, sirname, and addition of the state, and degree, mystery, town, or place, and county of the offender: and all this to identify his person. The time, and place, are also to be ascertained by naming the day and township, in which the fact was com mitted; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment, and the place to be within the jurisdiction of the court; unless where the place is laid, not merely as a venue, but as a part of the description of the fact. («) Bat sometimes the time may be very material, where there is any limitation in point of time assigned for the prosecution of offenders: as by the statute 7 Wm. Ill, c. 8, which enacts, that no prosecution shall be had for any of the treasons or misprisions therein mentioned (except an assassination designed or attempted on the person of the king), unless the bill of indictment be found within three after the offence committed: and in case of murder, the

years (t) time of the death must be laid within a year and a day after the mortal stroke was given. The offence itself must also be set forth with clearness and cer tainty; and in some crimes particular words of art must be used, which are so ap propriated by the law to express the precise idea which it entertains of the »..ki *offence, that no other words, however synonymous they may seem, I- -> are capable of doing it. Thus, in treason, the facts must be laid to be

(*) S Hawk. P. 0. 435. (Q Foflt Ml " (6) The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of hit conviction or acquittal for protection against a further prosecution for the same cause; and, second, inform the court of the facts alleged, so that it may decide whether they are suffi if cient to support a conviction, one should be had. For this, facts are to be stated; not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity, of time, place, and circumstances." TJ. 8. v. Cruikshank, 92 U. 8., 542, 558; Jarrard's Case. L. and C, 801; Merwin.v. People,

26 Mich. , 208. By the sixth amendment to the constitution of the United States an ac

cused party is entitled to be informed of the nature and cause of the accusation against him. The indictment must therefore set forth the offense with clearness and all necessary

certainty to apprise the accused of the crime he is charged with. U. 8. v. Mills, 7 Pet, 138. The alleged crime must be set forth with reasonable precision, directness, and full ness. Com. v. Phillips, 16 Pick., 211. Every ingredient of the offense must be clearly

alleged. U. 8. v. Cook, 17 WalL, 168. The requisites of an indictment are thus described

by Justice Brett in a carefully considered opinion: "An indictment must contain an alle- of every fact necessary to constitute the criminal charge preferred by it. As, in or-

Sationer to make acts criminal, they must always be done with a criminal mind, the existence

of that criminality of mind must always be alleged. If, in order to support the charge, it it is is necessary to show that certain acts have been committed, necessary to allege that

those acts were in fact committed. If it is necessary to show that those acts, when they it is were committed, were done with a particular intent, necessary to aver that intention. a is If it necessary, in order to support the charge, that the existence of certain fact should

the must be R. v. 2 B. D., 56; and see Brad- be negatived, negative alleged." Aspinall, Q.

v. 8 B. D., 607. As to the last point, see Com. v. Hart, 11 Cush.. laugh The Queen, Q. is a 180, where it is held that if in the enacting clause of statute there an exception, the party pleading an offense against the statute must show that his adversary is not within the is it is exception; but, if the exception in a subsequent clause or statute, to be shown in de " " fense. The ultimate design of all these "objects (that is, those sought to be accomplished by strictness in setting forth the charge), is fairness to the prisoner; and consequently anv indictment which has failed to set forth the offense with such certainty as to accomplish any of these purposes as far as the nature and circumstances of the case would permit, has generally been held bad upon general demurrer, or motion in arrest of judgment, or on writ of error. It is, however, true that in some cases and to some extent the omission to state facts not essential constituents of the offense in the abstract, but which are required to be

stated, if known, be excused an on the face of the indictment, showing may by allegation, why they could not be stated. Thus, firtt, the grand jury may not have been able to ascertain the names of third persons whose names ought regularly to be stated; or, teeond, the means used to take life in case of murder; or, third, if in forgery, the forged instru ment be lost, or in the hands of, or concealed by, the defendant; in the first case, the names; in the second, the means used to produce death; and, in the third, the exact words 466 Chap. 23.] Prosecutions fob Cbime. 307 done, "treasonably and against his allegiance;" anciently, "proditorie et contra ligeantiae sum deoitum:" else the indictment is void. In indictments for mur der, it is necessary to say that the party indicted "murdered," not "killed," or "slew," the other; which till the late statute was expressed in Latin by the word "murdravit." (w) In all indictments for felonies, the adverb "felonious ly," "felonies," must be used; and for burglaries also "burglariter," or in Eng lish, "burglariously:" and all these to ascertain the intent. In rapes, the word "rapuit," or "ravished," is necessary, and must not be expressed by any peri phrasis; in order to render the crime certain. So in larcenies also, the words "felonice cepit et asportaoit" "feloniously took and carried away," are necessary to every indictment; for these only can express the very offence. Also in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature; but if it goes through the body, then its dimensions are im material, for that is apparently sufficient to have been the cause of the death. Also, where a limb, or the like, is absolutely cut off, there such description is impossible, (v) Lastly, in indictments the value of the thing, which is the subject or instrument of the offence, must sometimes be expressed. In indict ments for larcenies this is necessary, that it may appear whether it be grand or petit larceny; and whether entitled or not to the benefit of clergy; in homicides

(«) See book m, page 321. («) 5 Bep. 122.

of the forged instrument, may be stated to the Jurors aforesaid unknown (though in the case of the forged instrument, its loss or destruction, or its possession or concealment by the prisoner mv^stbe stated and its substance given). And upon the same principle, the omis sion of a specific statement of many other facts not absolutely essential to the existence of offense, doubtless be excused in the same way." Merwin v. People, 26 Mich., 298. the may " The certainty required in an indictment is said by Justice Buller to be what, upon a fair and reasonable construction, may be called certain, without recurring to possible facts which do not appear." R, v. Lyme Regis, 1 Doug., 159. "The court will construe the words according to their ordinary and usual acceptation, and technical terms according to their technical meaning. An indictment is not vitiated by ungrammatical language or clerical errors, if the real meaning is sufficiently expressed. An indictment is not objection able as ambiguous or obscure if it be clear enough according to reasonable intendment or construction, though not worded wth absolute precision. 'And if there is no necessary am ' biguity in the construction of an indictment,' said Chief Justice Tindal, we are not bound to create one by reading an indictment in the only way which will make it unintelligible."* Heard's Cr. PL, 105-6. See further on the requisites of an indictment, Archbold Cr. Pr. and PL; Bish. Cr. Proa, §§ 819-713; Heard Cr. PL, 41-261, in which most of the cases cited above are discussed. Borne important changes have been made in the law relative to indictments by recent statutes. By statute 14 and 15 Vic, c. 100, 8 24, no indictment is to be held insufficient for omitting to state the time at which the offense was committed when time is not of the essence of the offense, nor by stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the pending of the indictment, or on an im possible day, or on a day that never happened. By section 9, a person on trial for an

offense, if it shall appear that he did not complete it, may be convicted of an attempt to com

24 and 25 Vic, c. 96, 85, a person on for mit the same. By § trial robbery may be acquit ted on the main charge and convicted of an assault with intent to rob. By section 72 there

may be a conviction for larceny on an indictment for embezzlement By section 88, a per 9 son for false pretenses may be convicted of Geo. IV, c. 81, 14, a indicted larceny. By § woman indicted for the murder of her infant child may be convicted of endeavoring to con

ceal its birth. And by 24 and 25 Vic. , c. 94, an accessory before the fact to any felony may

be indicted in all respects as if he were the principal felon. And by statutes 24 and 25 Vic., it c. 100, in an indictment for felonious homicide is not necessary to set forth the manner in which, or the means by which, the death was caused. Indictments in other cases have been very much simplified. In the United States, indictments for murder, not stating the manner of the killing, have bees sustained under statutes which provided that the manner need not be alleged. Cathcart v. Commonwealth, 87 Penn. St., 108; Campbell v. Com monwealth, 84 Penn. St., 187; State v. Shay, 30 La. Ann., 114; People v. King, 27 Cal.,

507 ; 8need v. People, 38 Mich., 248; Newcomb v. State, 87 Miss., 383: State v. Morrissey. 70 Me., 401; Williams v. State, 85 Ohio St., 175. Valuable discussions on the particularitj required in indictments will be found in those cases. 467 307 Prosecutions foe Crime. [Book IY. of all sorts it is necessary ; as the weapon with which it is committed is for feited to the king as a deodand. (7) The remaining methods of prosecution are withont any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One of these by the common law, was when a thief was taken with the main

our, that is, with the thing stolen upon him in manu. For he might, when bo detected flagrante delicto, be brought into court, arraigned, and tried, without indictment: as the *Danish law he be taken and r*S08l by might hanged upon *■ * trial, the spot, without accusation or (w) But this proceeding was taken away by several statutes in the reign of Edward the Third: (z) though in Scot

land a similar process remains to this day. (y) So that the only species of pro

ceeding at the suit of the king, without a previous indictment or presentment

by a grand jury, now seems to be that of information. HI. Informations are of two sorts: first, those which are partly at the suit

of the king, and partly at that of a subject; and secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the king, and another to the use of the informer; and are a sort of qui tarn actions a (the nature of which was explained in former book,) (z) only carried on by a

criminal instead of a civil process: upon which I shall therefore only observe,

that by the statute 31 Eliz. c. 5, no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the pro* secutor, can be brought by any common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence. (8) The informations that are exhibited in the name of the king alone, are also, of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney-general; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the king's cor oner and attorney in the court of king's bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public The objects of the king's own prosecutions, filed ex officio by his own attorney- r*l09l Seneral> are properly such *enormous misdemeanors as peculiarly tend * J to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and danger ous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, with out waiting for any previous application to any other tribunal: which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the

English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations filed by the master of the crown-office upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, batteries, libels, and S, £ I. 6. Stiernh. da jun Sueon. e. (x) Hal F. C. 149. (?) Lord Raima, J. SSL

) page 80 See book III, IBS.

(7) Very broad powers to amend indictments are conferred upon the courts by 14 and 1* Vio., c, 100. As to amendment of the record after see v. 15 judgment, Gregory Reg., Q. B.. 957; Bowers v. Nixon, 12 id., 546. As to amendment of indictments in the United States, see State v. Manning, 14 Tex., 402; State v. Corson, 59 Me., 137; Lasure v. State, 19 Ohio St., 43; Commonwealth v. Hall, 97 Mass., 570. (8) The time, unless otherwise expressly provided by statute relating to the particular case, is limited in the case of offenses punishable on summary conviction, to six calendar months. 11 and 12 Vic., c. 43, 86. § 468 Chap. 23.] Prosecutions foe Crime. 309 other immoralities of an atrocious kind, (a) not peculiarly tending to disturb the government (for those are left to the care of the attorney-general), but which, on, account of their magnitude or pernicious example, deserve the most public animadversion. (9) And when an information is filed, either thus, or by the attorney-general ex officio, it must be tried by a petit jury of the county where the offence arises: after which, if the defendant be found guilty, the court must be resorted to for his punishment. There can be no doubt but that this mode of prosecution by information, (or suggestion,) filed on record by the king's attorney-general, or by his coroner or master of the crown-office in the court of king's bench, is as ancient as the itself, common law (b) For as the king was bound to proseoute, or at least to lend the sanction of his name to a prosecutor, whenever the grand jury in formed him upon their oaths that there was a sufficient ground for instituting a criminal-suit: so when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, either personally against the king or his government, or against the public peace and good order, they were at liberty, without waiting for any farther intelligence, to convey that information to the court of king's bench by a *suggestion on record, r*qi ni and to carry on the prosecution in his majesty's name. But these in- ' formations (of every kind) are confined by the constitutional law to mere mis demeanors only: for, wherever any capital offence is charged, the same law requires that the accusation be warranted by the oath of twelve men; before the party shall be put to answer it. And, as to those offences in which in formations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and re gular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by in dictment. But when the statute 3 Hen. VII, c. 1, had extended the jurisdic tion of the court of star-chamber, the members of which were the sole judges of the law, the fact, and the penalty; and when the statute 11 Hen. VII, c. 3, had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assizes or before the justices of the peace, who were to hear and determine the same according to their own discretion; then it was that the legal and orderly jurisdiction of the court of king's bench fell into disuse and oblivion, and Empson and Dudley (the wicked instruments of King Henry VII), by hunting out obsolete penalties, and this tyrannical mode of prosecution, with other oppressive devices (c) con- fa) S Hawk. P. 0. 280. (6) 1 Show. 118. (e) 1 And. 1ST.

(9) By the fifth amendment, U. S. Const., "No person shall be held to answer for a capi tal or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger.*' This provision has no application to prosecutions for state offenses. Fox v. Ohio, 5 How., 34; Livingston v. Moore, 7 Pet., 469. An infamous offense is one involving moral turpitude in the offender, or infamy in the punishment, or both. Cooley, Principles of Const. Law, 291. That misdemeanors against the United States may be prosecuted by information, see U. 8. v. "Waller, 1 Sawyer, 701; U. S. v. Block, 4 Sawyer, 211; U. S. v. Shepard, 1 Abb. U. 8., 431. As to prosecutions for state offenses by information, see Commonwealth v. Barrett, 9 Leigh, 665; State v. Dover, 9 N. H., 468; Washburn v. People, 10 Mich., 372. An early case lays down the rule that "all public misdemeanors which may be prosecuted by indictment may also be prosecuted by information in behalf of the commonwealth, unless the prosecution be restrained by statute to indictment." Commonwealth v. Waterborough, 5 Mass., 257. Where it is the practice to proceed by information, it is the rule that the substantial parts of the informa tion shall be drawn as exactly and nicely as the corresponding parts of an indictment for the same offense. Enders v. People, 20 Mich.. 233; People v. Olmstead, 30 Mich., 431; Chapman v. People, 39 Mich., 357; Rowan v. State, 30 Wis., 129; State v. Cockburn, 88 Oonn., 400; Vogle v. State, 31 Ind., 64; People v. Higgins, 15 111., 110; State v. Williams, * Tex., 256, 469 310 Prosecutions fob Crime. [Book IV. tinually harassed the subject, and shamefully enriched the crown. The latter of these acts was soon indeed repealed by statute 1 Hen. VJJJ, c. 6, but the court of star-chamber continued in high vigor, and daily increasing its author- ity, for more than a century longer till finally abolished by statute 18 Car. I, c. 10. Upon this dissolution the old common law (

orown-office: and consequently, informations at the king's own suit, filed by his attorney-general, are no way restrained thereby. 9 There is one species of informations, still farther regulated by statute

Ann. c. 20, viz., those in the nature of a writ of quo warranto; which was shown, in the preceding book, (ty to be a remedy given to the crown against such as had usurped or intruded into any office or franchise. The modern information tends to the same purpose as the ancient writ, being generally made use of to is try the oivil rights of such franchises; though it commenced in the same manner as other informations are by leave of the court, or at the will of the at a torney-general : being properly criminal prosecution, in order to fine the de fendant for his usurpation, as well as to oust him from his office; yet usually considered at present as merely a civil proceeding. (10)

Id) 5 Mod. 484. 2 (€) Styl. Rep. 217,845. StyL Pract. Reg. tit. Information, p. 187,(edit. 1657). 8id. 7L 1 Sid. 151 I. 1 (/) Stat. 16Car. 0. 10.$6. (p)5Mod. 460. (k) Saund. 801. 1 Sid. 174. 5 1 (0 M. 1 W. and M. Mod. 459. Oomb. 141. Far. 861. Show. 106.

These are all the methods of prosecution at the suit of the king. There yet remains another, which is merely at the suit of the subject, and is called an ap peal. IV. An appeal, in the sense wherein it is here used, does not signify any complaint to a superior court of an injustice done by an inferior one, wmoh is the general use of the word; but it here means an original suit, at the time of its first commencement. (I) An appeal, therefore, when spoken of as a crimi nal prosecution, denotes an accusation by a private subject against another, for some heinous crime; demanding punishment on account of the particular in jury suffered, rather than for the offence against the public. As this method of prosecution is still in force, I cannot omit to mention it: but as it is very little in use, on account of the *great nicety required in conducting it, r*oioi * *• I shall treat of it very briefly; referring the student for more partiou- lars to other more voluminous compilations, (m) This private process, for the punishment of publio crimes, had probably its original in those times when a private pecuniary satisfaction, oalled a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern na tions, (n) from our ancestors, the ancient Germans; among whom, according to Tacitus, (o) "luitur homicidium certo armentorum acpecorum numero; recipit- que satisfactionem universa domus." (p) In the same manner by the Irish Bre- hon law, in case of murder, the brehon or judge was used to compound be tween the murderer and the friends of the deceased who prosecuted him, by causing the malefactor to give unto them, or to the child or wife of him that was slain, a recompense which they called an eriach. (q) And thus we find in our Saxon laws (particularly those of King Athelstan) (r) the several were- gilds for homicide established in progressive order from the death of the ceorl

himself, I, or peasant, up to that of the king (s) And in the laws of King Henry (t) we have an account of what other offences were then redeemable by weregild, and what were not so. (w) As therefore during the continuance of this custom, a process was certainly given, for recovering the weregild by the party to whom it it was due; seems that, when *these offences degrees no by grew *314-i longer redeemable, the private prooess was still continued, in order to -* insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence. But, though appeals were thus in the nature of prosecutions for some atro-

oious injury committed more immediately against an individual, yet it also was anciently permitted, that any subject might appeal another subject of high treason, either in the courts of common law, (v>\ or in parliament, or (for treasons committed beyond the seas) in the court or the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battel awarded in the court of chivalry, on such an appeal of treason: (x) but that in the first was virtually abolished (y) 5 by the statutes Edw. Ill, c. 9, and 25 Edw. HI, o. 24, and in the second ex

pressly by statute 1 Hen. IV, c. 14, so that the only appeals now in force for things done within the realm, are appeals of felony and mayhem. (I) It Is from the French, "appellor," the verb active, which signifies to call upon, summon, or challenge one; and not the verb neuter which signifies the same as the ordinary sense of "appeal" in English. 2 8, (m) Hawk. P. C. ch. 23. (n) Stlernh. dejure Suecm. I. o. 4. (o) de M. O. c. 21. (n) And In another place, (o. 12), Delicti/, pro modo pama: equorum pecorumque numero convict! mulct antur. Para mulctce regi vel civitati; para ipsi qui vindicatur, velpropinquia ejua exaolvitur" (q) Spencer's State of Ireland, p. 1318,edit. Hughes, (r) Judic. Civit. Lund. WUk. 71. (a)The weregild of a ceorl was 266thrysmas, that of the king 30,000;each thrysma being equal to about a shilling of our present money. The weregild of a subject was paid entirely to the relations of the slain; but that of the king wag divided; one-half being paid to the public, the other half to the royal partg

(u) In Turkey this principle Is still carried so far, that even murder Is never prosecuted by the officers of the government, as with us. It is the business of the next relations, and them only, to revenge the

■laughter of their kinsmen: and if they rather choose (as they generally do, to compound the matter for Is said about It. (Lady M. W. Montague, lett. <2.) money^othlng^more 2, 2, (a) By Donald lord Bea against David Ramsey. (Rushw. vol. part p. 112.) (y) l Hal. P.aitt. Vol. II.—60 471 314 Pbosecutions for Chimb. [Book IV.

An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. The crimes against the parties them selves are lareeny, rape, and arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation : but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heir ship was also confined, by an ordinance of King Henry the First, to the four nearest of blood, It is to the wife on account of the loss of degrees (z) given if her husband; therefore, she marries again, before or pending her appeal, it

is lost and gone; or, if she marries after judgment, she shall not demand exe

cution. The heir, as was said, must also be heir male, and such a one as was r*si5l ^e *next keir by the course of the common law, at the time of the

killing of the ancestor. But this rule hath three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the per son who, next to him, would have been heir male, shall bring the appeal: S. If the wife kills her husband, the heir may appeal her of the death. And, by I, 6 the statute of Gloucester, Edw. c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law; for in the Gothic constitutions we find the same "prmcriptio annalis, qua currit adoer- 8us actorem, si de homicida ei non constet intra annum a caide facta, nee quenquam interea arguat et accuset." (a)

These appeals may be brought previous to an indictment: and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence.

In like manner as by the old Gothic constitution, if any offender gained a ver dict in his favour, when prosecuted by the party injured, he was also under stood to be acquitted of any crown prosecution for the same offence: (b) but, on the contrary, if he made his peace with the king, still he might be prose cuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year 3 and day be past, by virtue of the statute Hen. VII, c. 1, in order to be forth coming to answer any appeal for the same felony, not having as yet been punished for it, though, if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that, " nemo bis punitur pro eodem delicto." Before this statute was made, it was not usual to indiot a man for homicide within the time limited for appeals; hereafter, which produced very great inconvenience, of which more (c) *^ be the r*

and pay a fine to the king, besides restitution of damages to the party for the

imprisonment and infamy which he has sustained: and if the appellor be inca

pable to make restitution, his abettors shall do it for him, and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta, (d)

proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.

If the appellee be found guilty he shall suffer the same judgment as if he had been convicted by indictment: bnt with this remarkable difference; that

on an indictment, which is at the suit of the king, the king may pardon and is remit the execution; on an appeal, which at the suit of a private subject, to

make an atonement for the private wrong, the king can no more pardon it », I T. S, 1, I. 4. (•) Mlrr. c. (o) Stlernh. de Jure Goth. o. (t>)Stieruh. de Jure Goth. I a Ok

See pa«e 335. L. 1, 84, (e) (d) o. | 48. 472 Chap. 23.] Prosecutions for Crime. 316

than he can remit the damages recovered in an action of battery. («) In like manner, as, while the weregild continued to be paid as a fine for homicide, it ■could not be remitted by the king's authority. (/) And the ancient usage was, so late as Henry the Fourth's time, that all the relations of the slain should drag the appellee to the place of execution; (g) a custom founded upon that savage spirit of family resentment, which prevailed universally through Europe, after the irruption of the northern nations, and is peculiarly attended to in their several codes of law; and which prevails even now among the wild and untutored inhabitants of America; as if the finger of nature had pointed it out to mankind, in their rude and uncultivated state. (A) However, the punishment of the offender may be remitted and discharged by the concur rence of all parties interested; and, as the king, by his pardon, may frustrate ■an indictment, so the appellant by his release may 'discharge an ap- r*31yi >■ * peal; (i) "nam quilibet potest renunciare juri pro st introducto." (11) These are the several modes of prosecution, instituted by the laws of Eng land for the punishment of offences; of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking by the way the most material varia tions that may arise, from the method of proceeding, by either information or appeal.

(«) 2 Hawk. P. C. 892. (/) LL. Edm. ( S. (g) 3i. 11Hen. IV. 12. s Inst. 131. (A) Robertson, Ohaa. V, L 45. 1 Hal P. a ft

(11) These appeals had become nearly obsolete, but the right still existing was claimed, and in part exercised, in the year 1818, by William Ashford, eldest brother and heir at law of Mary Ashford, who brought a writ of appeal against Abraham Thornton, for the murder of his sister. Thornton had been tried at the Warwick summer assizes, 1817, for the mur der, and acquitted, though under" circumstances of strong suspicion. The appellee, when called upon to plead, pleaded not guilty, and that he was ready to defend himself by his body;" and, taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singu lar case, in the report of it, under the name of Ashford v. Thornton, 1 B. & A, 405 It was held, in that case, that where, in an appeal of death, the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong pre sumptions of guilt, as to leave no possible doubt in the minds of the court; and, therefore, that a counterplea, which only stated strong circumstances of suspicion, was insufficient. It was also held, that the appellee may reply fresh matter, tending to show his innocence, as an alibi, and his former acquittal of the same offense on an indictment. But it was doubted whether, where the counterplea is per $e insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of the court, by consent of both parties, ordered that judgment should be stayed in the appeal, and that the appellee should be discharged. This case, the first of the kind that had occur red for more than half a century see Bigby v. Kennedy, S Burr., 2648 ; 2 W BL, 713; Rex ▼. Taylor, 5 Burr, 2793; Smith v. Taylor, id. ; the last cases upon the subject, where the mode of proceeding is detailed at large, led to the total abolition of appeals of murder, as well as of treason, felony, or other offenses, together with wagers of battle, by the passing of the statute 59 Geo. Ill, c. 46. Vol. II—60 473