of our said late lord the king," the offence having been charged in the reign of the existing queen, the word "late" may be rejected as surplusage and the indictment supported (u). To conclude an indictment for a common law offence as contra formam statuti, though improper, is not fatal, and those words may be rejected as surplusage (v). Conclusion of Indictments on Statutes.]-Where an offence is created by statute, the words contrary to the form of the statute in such case made and provided, must be inserted either before or after the words "against the peace," &c. Where the matter charged is no offence at common law, the omission of these words will so entirely vitiate, that no judgment can be given on it (w), and if given would be arrested, notwithstanding 7 G. IV. c. 64, s. 20 (x). But where the matter charged was an offence at common law, and is heightened in degree by a statute, or some new punishment is superadded by statute, the indictment will not be wholly avoided by the omission of these words, but it will stand as a mere indictment for the common law offence, and judgment for the punishment provided by the common law only can be passed (y). Numerous distinctions have been taken in the old books as to the proper conclusion when there were more statutes than one referring to the offence, whether it should be contrary to the form of the statute or statutes; and it has been held that if one statute be relative to another, as where the former makes the offence and the latter adds a penalty, the indictment should conclude contra formam statutorum (z). The more recent authorities, however, seem to countenance the opinion that in all cases a conclusion in the singular will suffice (a); and no judgment may now be stayed or reversed for inserting the words (u) R. v. Scott, Russ. & Ry. 415; but see R. v. Chalmers in note (t); and ante, p. 185. (v) R. v. Matthews, 5 T. R. 162. (w) 1 Hale, 172, 189, 192. For every offence for which a party is indicted is supposed to be prosecuted as an offence at common law, unless the prosecutor, by reference to a statute, shows that he means to proceed on it; and without such express reference, if it be no offence at common law, the court will not look to see if it be an offence by statute, per Lawrence, J. in Lee v. Clark, 2 East, 340; Doct. Plac. 332; 2 Hawk. c. 25, s. 116; R. v. Deacon, R. & M. N. P. C. 273. (z) Westwood's case, 2 Hale, 173. (a) Clanricarde (Earl) v. Stokes, 7 East, 520, and cases 1 Chit. Cr. L. 292, n. If one statute subjects an offence to a pecuniary penalty, and a subsequent statute makes it felony, an indictment for the felony concluding against the form of the statute, in the singular, is right, R. v. Pim, R. & Ry. 425. As to amending a mistake of this kind, see Reg. v. Law, ante, p. 178. 204 OF INDICTMENTS:-INGROSSING, INDORSING, FInding true bill. against the form of the statute," instead of “ statutes,” and vice versá (b). Obstructing the execution of powers granted by statute is an offence at common law, and ought not to conclude contra formam statuti (c). Besides these necessary parts of the conclusion, it was formerly usual to introduce others of mere moral inference, as "to the great displeasure of Almighty God;"" to the evil example of all others;" and "to the great damage" of the party directly aggrieved; but these are all clearly unnecessary, and should be omitted. How Indictment ingrossed, indorsed, &c.]-The bill of indictment being thus carefully prepared must be ingrossed; that is, fairly written on parchment, without a stamp. Formerly, all indictments were in Latin; but, by 4 G. II. c. 26, they must be in English, and written in a legible hand, under the penalty of 501. The indictment must be written in words at length, without abbreviations or figures; except where it may be necessary, as in indictments for libels, sending threatening letters, or for not executing a warrant, or not obeying an order of justices, to set out a fac-simile of a written instrument, when both are necessarily admitted (d). The names of the witnesses who are to support the charge before the grand jury should be indorsed on the back of the bill when copied on parchment, and the witnesses should then be sworn in court by the clerk of the peace or crier, ready to go before the grand jury when required (e). Finding of Grand Jury.]—The grand jury having decided on the bill in the manner already considered (f), attend the court, and by their foreman return it into court, by delivering it ingrossed on parchment, and indorsed either "a true bill," or "no true bill," according to their finding, to the clerk of the peace; who thereupon, after asking them if they agree that the court shall amend matter of form, not altering matter of substance (g), to which they assent, states the substance of the bill and the indorsement of it, and usually places it on the file, though this is not necessary (h). (b) 7 G. IV. c. 64, s. 20. (c) R. v. Smith, 2 Doug. 441. (d) See 2 Hale, 170; R. v. Mason, 1 East, 180; 2 East, P. C. 1123; and cases collected, 3 Burn, J. 434, 28th edit. by Chitty; Archb. Crim. Pl. & Ev. 6th ed. 40. (e) Most essential to be attended to, R. v. Dickenson, ante. (f) Ante, p. 164, 165. (g) This is in order to enable the court to amend a clerical error, 2 Hawk. c. 25, s. 28. (h) 4 Harg. St. T. 745. Process to bring Party Indicted into Court after Bill found against him for Felony.]-On a bill being found for felony, if the party indicted be not in custody, or under recognizance to appear, the court will, on application to the clerk of the peace, issue a capias (i), tested by the two senior justices who are present (j), directing the sheriff of the county, or county of a city, to take the offender and him safely keep, so that he may have him at the next general quarter sessions for the county, so to answer concerning the felony for which he has been indicted. If he does not appear, is not taken, or escapes after being taken, an alias and pluries capias will issue in succession, and if unavailing, a writ of exigent (k) may be awarded, that the offender may be called to surrender at five successive county courts, in order to outlaw him if he does not before the return of the exigent render himself, or in bailable cases find bail before other justices, and thus supersede it (7). By 4 & 5 W. & M. c. 22, s. 4, a writ of proclamation must issue at the same time as the exigent, bearing the same teste and return, requiring generally the defendant to render himself to the sheriff, so that he may have his body before the justices on the return day of the exigent (m). If the defendant does not appear, nor is taken on or before the fifth county court, or day of exaction under the writ of exigent, judgment of outlawry, or if a woman, of waiver, is given by one or more of the coroners of the county (n). An outlawry thus had, if regularly carried through all its stages, amounts to a conviction even in a capital case (o). (i) 2 Hale, 52; Dalt. J. 199, c. 193, p. 472, 473; Chitty's Crim. L. 214. (j) Semble, one (the senior) justice would suffice, 2 Hawk. c. 27, s. 8. The following is the form :-Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland, queen, defender of the faith, to the sheriff of the county of, greeting. We command you that you omit not by reason of any liberty in your bailiwick, but that you enter the same, and take A. O., ofin your county, yeoman, if he should be found in your bailiwick, and him cause to be safely kept, so that you have his body before our justices assigned to keep our peace, and also to hear and determine divers felonies, trespasses, and other misdemeanours in the said county, committed at county, on the in your day of - ensuing, to answer unto us concerning divers trespasses, contempts, and of- Return.]-At which day, sheriff of the county aforesaid, made a return that the within-named A. O. is not found in his bailiwick, and he did not come. Therefore it is commanded as before. (k) Id. c. 193, p. 472, 473; 4 Ch. Cr. L. 215. (1) 1 Ch. Cr. L. 353, 354. (m) Id. 355; 4 T. R. 521, 535, R. v. Yandell. (n) See 2 Hale, 204; 25 Ed. III. st. 5, c. 14; 4 Bla. C. 319; 4 T. R. 537, &c.; and 1 Ch. Cr. L. 356. (0) R. v. Yandell, 4 T. R. 543 ; post, Ch. V. s. 10. Process to bring Party into Court after Bill found against him for Misdemeanour, or Articles of Peace presented.]—Where an indictment is found at the sessions for a misdemeanour, or if articles of the peace are presented against parties who are not under recognizance to appear there, and do not appear, the prosecutor, if desirous to proceed to outlawry, may obtain a venire facias ad respondendum, which is in the nature of a summons to appear within fifteen days between the teste and return (p). This is the usual process on an indictment against a parish for not repairing a highway; and is served on any two inhabitants living within the county (q). If the defendant does not appear, and the sheriff returns that he has summoned him, a distringas may be issued, and an alias from time to time, by which he loses issues on each default; but if he is not summoned, then a capias issues, and the prosecutor may go on to outlawry, as in felony. Bench Warrant, and Certificate of Indictment found.]—But the prosecutor has also a right in the last-mentioned cases, as well of misdemeanour as felony, during the session at which the bill is found, or the articles exhibited, to have a bench warrant against the offender to apprehend him, and bring him immediately into court to answer, or, if the court is not then sitting, before the signing or some other justice of the county, &c. to find sureties for personal appearance at the then present, or at the next session. This warrant is obtained from the clerk of the peace, and must be signed by two justices at least, and, as is said by Hawkins (r), while the court is sitting. If the sessions are over, the clerk of the peace will, on application of the prosecutor, grant a certificate of the indictment having been found, on which any judge of the queen's bench, or justice of peace of the proper county acting out of session, will grant a warrant for apprehending the defendant, and oblige him to enter into recognizance to appear at the next sessions to answer the indictment, or, for want of sureties, will commit him (s). This is the established practice, independently of 48 G. III. c. 58, s. 1, and other statutes. Practice as to Bench Warrants where Offender is under Recognizance to appear at the Sessions, but does not.]—Where the party indicted is under recognizance to appear at the sessions at which the indictment is found, no process can be had against him during that session; because, being looked on at law as one day, whatever (p) 1 Ch. Cr. L. 350; 4 id. 212. (g) 5 T. R. 503, 505. (r) Lib. 2, c. 27, s. 8. may be its duration, the defendant has the whole of it in which to make his appearance (t). But if he has not appeared, the prosecutor may bespeak a bench warrant during the session, which will, it is said, be issued at the close thereof(u). If no bench warrant be applied for before the sessions are over, the clerk of the peace will grant the prosecutor a certificate, that the indictment has been found against the defendant, upon which a warrant will be granted by any single justice of peace for arresting the party, and obliging him to enter into recognizance to appear at the next sessions (viz. after the arrest, and not after the date of the warrant), to answer the indictment. It does not appear necessary to renew this warrant at every session, though it remain unexecuted (v): and it may be backed for execution in any other county (w). Backing Warrant.]—By 24 G. II. c. 55, a justice of the county or place where an offender may be, shall, on proof on oath of the handwriting of the justice granting a warrant in some other county, &c. indorse his name thereon, thus authorizing the offender to be taken before the justice so indorsing, or any other justice of that county. If the offence be not bailable, or is bailable, but bail are not found, the constable must take the offender before some justice of the county where the offence is committed. If the offence is bailable, and bail are found, the justice who indorsed the warrant is to bail the party, and deliver the recognizance, examination, or confession, and all proceedings to the constable, who is to deliver them to the clerk of the county where the offence is committed. At common law, if A. committed a felony in the county of B., and then went into county C., a justice of C. might issue his warrant to take him, and take his examination, and commit him to jail in C., from whence he might be removed by habeas corpus to B., to take his trial (r); and a justice may grant a warrant to apprehend a person who, being within his jurisdiction, has committed an offence on the high seas (y), in Ireland, or a foreign country (z). On affidavit to the same effect as the certificate of the clerk of the peace, a judge of the queen's bench may grant a warrant, directed to his tipstaff, and all (f) 2 Salk. 607; 1 Ch. Cr. L. 342, 1st edit. (u) Ibid. But see 2 Hawk. c. 27, s. 8, above cited. (v) 8 T. R. 110. (w) See 1 Ch. Cr. L. 339, 343, 1st edit. and forms of capias, alias, pluries exigent, proclamation, &c. as well as bench warrants, certificates of clerk of peace, &c. &c., 4 Ch. Cr. Law, c. 8. (x) 1 Hale, 580; 1 Ch. Cr. L. 35, 1st ed. (y) 39 G. III. c. 47. |