and the party is taken or brought to gaol, or some former offender is taken and brought in in like manner (i).

Discharge of Accused on throwing out Bill.]-A prisoner should not be discharged immediately after a bill against him is thrown out, or until after proclamation for any one who has any further charge against him to go before the grand jury, which should not be made till the end of the session (k), as a second bill may be sent up against him for the same offence at the same sessions (1).

As to a grand juror afterwards sitting on the petty jury, see post, Ch. VII. sec. 4.

SECTION IV.

OF DIVIDING THE SESSION.

WHEN the proceedings of the court have arrived at this stage, the course of the justices must be regulated by the quantity of business to be transacted, and the time which will be required for its execution. Where the business, from the extent of the jurisdiction or any other cause, is particularly heavy, advantage may be taken of the statute (m), which empowers the court of quarter session to divide itself into two courts, sitting at the same time, and each exercising the full authority of the session, where " it shall appear to the justices probable that the business of the session will occupy more than three days, including the day of their assembling." This power of dividing may, by virtue of the second section of the act, either be exercised at each particular session, as the necessity for it shall arise, or it may be provided for prospectively for any number of sessions that may be thought convenient; and, for the effectual execution of its objects, the sessions are authorized to require the clerk of the peace to appoint a deputy, and themselves to appoint an additional cryer for such additional court, and to remunerate them respectively by order on the county treasurer.

Dividing a Court at Adjourned Sessions.]-Doubts having arisen as to the power of adjourned sessions to avail themselves of 59 G. III. c. 28, it is now enacted (n), that the justices assembled at adjourned

(i) 2 Hale, 156.

(4) It would seem from Dalton, ch. 185, that formerly no prisoner was arraigned till after all the bills had been returned; see ante, note to p. 173. (1) Reg. v. John Newton (Bigamy),

2 M. & Rob. 503, Wightman, J., disregarding Reg. v. Humphreys, as reported, 1 C. & Mar. 601.

(m) 59 G. III. c. 28.

(n) 7 W. IV. & 1 Vict. c. 19, s. 4.

quarter sessions of the peace for any county, riding, or division, may, on the first day that they shall assemble, should the state of the business be such as is likely to occupy more than three days, including the first day, appoint two or more justices to sit apart from themselves in some place in or near the court, there to hear and determine such business as shall be referred to them, while others of the justices are at the same time proceeding in the dispatch of the other business of the same court; and the proceedings had before such two justices shall have the same effect as if had before the court assembled and sitting as usual in its ordinary place of sitting, and shall be enrolled and recorded accordingly.

And in order to enlarge the powers of justices of the peace for dividing their several courts of sessions of the peace; it is enacted (o), “that whenever any court of general or quarter session or adjourned session of the peace shall be assembled for the dispatch of business thereunto belonging, and there shall be any order of the court in force for the appointment of a permanent chairman and deputy chairman of the said court, it shall be lawful for the justices then present, if it shall appear to them advisable, having regard to the business to be disposed of, to appoint two or more justices, one of whom shall be such deputy chairman, to sit apart in some convenient place in or near the court, there to hear and determine such business as shall be referred to them, whilst others of the justices, one of whom shall be the said chairman, are at the same time proceeding in the dispatch of the other business of the same court, and that the proceedings so had by and before the justices so sitting apart shall be as good and effectual in the law as if the same were had before the court assembled and sitting as usual in its ordinary place of sitting, and shall be enrolled and recorded accordingly :" and that 59 G. III. c. 28, shall, so far as may be, extend and be applicable to the second court so to be holden as aforesaid.

The proper time for exercising the authority conferred by these statutes, is when the grand jury have received their instructions from the chairman, and have retired to their room. The most natural distribution, in order to relieve jurors and witnesses from the labour and expense of lengthened attendance, seems to be, that when the division takes place, one court should undertake that portion of the criminal business in which counsel are employed, while the other court proceeds to hear prosecutions in which no such professional assistance is engaged. Appeals and matters over which the sessions have summary jurisdiction should be decided before the full bench.

(0) 5 & 6 Vict. c. 38, s. 4.

CHAPTER IV.

OF THE MODES OF PROSECUTING OFFENCES AT SESSIONS, AND THE TECHNICAL RULES INCIDENT TO THE PROCEEDINGS.

mation

and the Law of Indictments, 187 III.-Of Prosecution by InforII.-Of Prosecution by Present

232

233

SECTION I.

OF PROSECUTION BY INDICTMENT.

Indictment, what.]-Prosecution by indictment is the most usual and constitutional course of bringing offenders to justice on criminal charges. It is an accusation preferred in the name of the sovereign, to a grand jury, competent by law to find it, and found by them on their oaths. Although, in point of law, it is a proceeding at the suit of the crown, it may be preferred at the instance of any one, subject to the liability of the prosecutor to an action if he proceeds maliciously, and without probable cause. It commences, The jurors for our Lady the Queen (a), upon their oath (and affirmation, if one or more be a quaker, moravian, &c.) (b), present that, and is sent to the grand jury, written on parchment, with the names of the witnesses indorsed, who are sworn in court by the crier or clerk of the peace, in order to be examined in support of it before the grand jury (c). Before it is returned "found," it is called a "bill," and only becomes an "indictment" on that return.

Of the Joinder of several Defendants.]-Where the felony is such

(a) The jurors intended are those mentioned in the caption, Reg. v. Turner, 2 M. & Rob. 214, Parke, B. See as to of our lady the queen, post, p. 199. (b) It is now made doubtful by Lord Denman's act whether this statement of

affirmation is necessary, see post, p. 200.

(c) Where this oath was neglected, and the prisoner was convicted, he received a free pardon, R. v. Dickenson, R. & Ry. 441; stated ante, p. 174; Reg. v. Russell, ibid.

as several may join in, e. g. house-breaking, larceny, &c., and it is believed that several have joined in committing it, in several degrees, e. g. as principals in the first or second degree, or as accessories before or after the fact, they may all be indicted jointly (d); and the like in misdemeanours, where all are principals, e. g. extortion, battery, &c. (e). So, though the several parties may have acted separately, if the grievance, e. g. the nuisance, is the result of all their acts jointly, they may be joined in an indictment stating the acts to have been several (ƒ). This is the more usual and convenient course: though a distinct indictment might, in point of law, be maintained against each, as all offences are, in their nature, several (g).

Such joint indictment, indeed, is in its nature several also; for the issues upon it are joined distinctly between the crown and each defendant, the defendants may plead in different ways, and although they plead similar pleas, may, in cases of felony, procure several trials by severing in their challenges. So also some may be convicted and others acquitted, except where the offence is one which cannot be committed by less than two, as conspiracy; or less than three, as riot; when if the jury acquit all the parties charged on the record but one in the first case, or two in the second, all must be acquitted, unless it is laid and found that the offence was committed with others to the jurors unknown. Thus, several may be joined in an indictment for publishing a libel, where all joined in the publication (h); and for obtaining money under false pretences, when all were present aiding and assisting in the common object of fraud (i). Three were jointly charged with procuring certain other persons to utter a forged will. The only evidence for the crown was of separate acts, done at separate times and places by each of the persons charged as accessories; at the end of that evidence, one pleaded guilty. For the rest it was said, that only one could on the evidence be convicted. It was held, however, that the rest might be convicted (k).

But where the offence of each is entirely distinct in its nature, or arises out of some personal duty or omission, each ought to be separately indicted, or, at all events, severally charged. Thus indictments against two or more jointly for perjury, as common scolds, or for exercising a

(d) 2 Hale, 173. See as to indicting receivers jointly for several acts of receiving, Reg.v.Pulham,9 C.&P. 281,post.

(e) Keeping a gaming-house, &c. 2 Burr. 984.

(ƒ) R. v. Trafford and others, 1 B. & Adol. 874.

(g) Reg. v. Atkinson et al. Lord Raymond, 1248; Salk. 382.

(h) R. v. Benfield and Saunders, 2 Burr. R. 980.

(i) R. v. Young, et al. 1 Leach, 505. (k) Reg. v. Barker and others, C. & Kir. 442.

trade without serving an apprenticeship, are bad; for the acts complained of are essentially and necessarily several (1). And though several defendants may be included in one indictment for several distinct misdemeanours of the same kind, as for severally keeping disorderly houses (m), it is neither discreet nor proper; for the court might (at all events, before plea, or as it seems, even before the jury is charged with them (n),) quash such an indictment for any inconvenience shown to arise from the joinder of different counts against different offenders (o); or, it the objection is not made till after the jury has been charged, might put the prosecutor to his election (p). Objection to an indictment for improper joinder of defendants in it, is too late after verdict (9).

If two or more be jointly charged with having committed a single offence, they cannot be separately convicted of separate parts of it. But both may be convicted, or one only, and the other acquitted of the whole charge (r).

Of charging several Offences in an Indictment.]-In point of law, several offences, which may be tried by the same rules, and which in point of law have the same legal class and character; i. e. several felonies, or several misdemeanours, may be charged in several counts in one indictment (s). Thus counts for felony at common law may be joined with counts for felony by statute; counts for a felony with aggravations which render it capital, with counts for a felony which is not capital; counts for riots and aggravated assaults, punishable by hard labour, with counts for common assaults for which that punishment cannot be inflicted; and nothing in the act for abolishing benefit of clergy (7 & 8 G. IV. c. 28, s. 6), prevents the joinder in an indictment of counts which might have been joined before that act

jointly indicted at the central criminal court for feloniously using plates containing impressions of forged notes. It was held that a singly using the plates by each of the three while alone would not suffice for a conviction; but the jury must select some one particular time after all three had become connected, viz., a time when they were all present together at one act, or assisting in such one act, as by two using and one watching at the door to prevent disturbance, and the like.

(8) 2 Hale, 173; 1 Chit. Crim. Law, 1st ed. 254; and post, Chap. V. s. 11,

notes.