an indictment the time thall not bar the appeal Page 530,531 30 Nor fhall this ftatute extend to any other acquittal but on an indictment £15 31 And an acquittal on any other indictment or appeal, except for death, may fill be pleaded in bar to an appeal for the fame crime ibid. 32 And an acquittal on an appeal of death may be still pleaded to an indictment ibid.33 ibid. How the record fhall be produced in pleading autrefois acquit 15 No difcharge of an indictment will 29 But an acquittal on this trial withia bar an appeal, and no discharge of an appeal will bar an indictment, except an acquittal by battle, or by verdict on the general iffue Page 527 1.6 16 Quere if an acquittal by battle in an appeal may not be pleaded in bar to 528.7 17 The acquittal upon indictment or appeal fo erroneous as not to fupport the judgment, cannot be pleaded in bar to a fubiequent indictment or appeal 1.8 18 But it is otherwife if the error be only in the process 19 An acquittal on an appeal brought by an improper appellant will not bar an appear by the right appellant 529 f. 9 20 An acquittal in any court of competent juridiction is as god a oar as an acquitta, in the highest court f. 10 21 An cquittal of murder at the grand fethon in Wales may be pleaded to an indictment 5. the lame murder in Engibid. acquittal of a man as acceffary i of a fubfequent profecution him as acceffary after the fattz land j. 1! 23 But it is doubtful, whether the acquittal of a man as principal is a good bar 3 again an indi&ment as acceffary before the fact ibid. 34 561 A pritoner fhall be allowed a copy of hi indictment to enable him to plead autrefois acquit AUTREFOITS CONVICT. 567 This plea is allowed, because the party A conviction of manslaughter on an ap- 24 Whether a man can be found guilty as principal upon evidence which only proves him to have been an acceflary before 530 25 If not, the acquittal of him as princi-5 pal no way acquits him as an acceffary before; which opinion is strongly hulden by Mr, Juftice Folter ibid. 6 A perfon admitted to his clergy fhall not thereby bar a fubfequent profeca tion for another felony not withia the benefit of clergy f. 11 (N)} 26 The acquittal of a man as accesary f. 13 28 By 3 Hen. 7. c. 1. principals and ac-8 ceffaries in murder may be tried before the expiration of the year and day, within which time an appeal is allowed 9 to be brought 530,531 are pleaded, were depending at the time of fuch conviction, or not ibid. 4 7 8 Page 335 f. 13 10 Unless the court call a man to judgment, on a conviction of manslaughter on an indictment of murder, he cannot demand clergy, and therefore cannot plead fuch conviction and clergy in bar to an appeal 536 f. 146 II But it is now settled that fuch a conviction, and the prayer of clergy, may be pleaded in bar to an appeal for the fame death, whether the party were called to judgment or not 12 But if the record is erroneous either in refpect of infufficiency in the indict. ment or appeal, or for a mif-trial, &c. fo that his life was not in danger, the prifoner cannot plead fuch conviction and clergy thereon had, in bar of a fecond indictment or appeal 536,537 13 The form of the conclufion of a plea of autrefois conviɛ of manslaughter f. 16 14 Quere if autrefois convid of fe defendendo on an indictment of murder may not be pleaded to an appeal of the fame death 1. 17 15 An appeal lies against a perfon convicted until he is attainted ibid. (N) I The number of bail must be mentioned But exceffive bail ought not to be re- If the ends of justice are defeated by 142 f. 6 16 It is incumbent on the offender to be 17 By ftat. Weft. if any withhold bail lefs the commitment be for treafon orf cefs, &c. cn pain of 500l. Page 146 felony, plainly and fpecially expreffed 1. 20 in the warrant) and upon tender of 29 Prifoners committed for treason or fethe charges, &c. fhall make a return of fuch writs, and bring up the body of his prifoner to the court from whence the writ iffues, and certify the true caufes of his commitment or detaine Page 144 39 If the prifon be above 2c, and no: exceeding 100 miles diftant from the court, the return, &c. fhall be within 10 days, and if above 100 miles, ther within 20 days ibid. 20 All fuch writs fhall be marked per 30 Alatutum tricefimo primo Caroli fecundi regis; and figned by the person award-31 145 ing it 21 Therefore if a writ be not figned, it need not be obeyed ibid. (N) 1 22 In vacation, any of the judges, on view of the commitment, or on oath or certificate that the warrant was refufed, may grant a babeas corpus under the feal of the court returnable immedi ate (other than to convicts or perfons in execution), and on service thereof the gaoler fhall make return, &c. as above 145 23 Within two days after the return, &c. the judge awarding the writ, or in hi abfence any other of the judges, may discharge the prifoner on bail, &c. un lefs it appear that he is detained upon a legal process out of a court of crimi nal law, or that he is not bailable ibid. 24 If a prifoner is too infirm to be brought up, the court will order him to be attended 25 If a prisoner neglects for two whole terms to pray a babeas corpus, he shall lofe the right to it in vacation 145, 146 26 To refufe obedience to this writ, &c. incurs a penalty of a 100l. for the fir offence, 2001. for the fecond and lofs of office (N) 5 32 33 34 35 lony plainly and fpecially expressed, praying in open court the first week of the next term, or first day of the fesfions, to be tried, who fhall not be indicted the term or feffions after commitment, may upon motion the last day of the term or feffion, be difcharged ca bail, unless it appear on oath the king's witneffes could not be produced. If not indicted and tried the fecond term or feffions, they fhall be difcharged f. zı Prifoners may obtain habeas corpus out of any of the courts at Wefiminfier (.22 If the chancellor or any of the judges in vacation time, upon view of the warrant, or oath of its refusal, &c. fhall deny the writ of habeas corpus, they shall feverally forfeit 500!. ibid. And fuch writs do not expire on the commencement of the term (N) 7 After affizes proclaimed, no prifoner fhall be difcharged there upon babeas corpus, but shall be taken before the judge of affixe 146, 147 Judges not liable to penalty for refufing babeas corpus in term time; becaufe no judge is liable to an action for what he does as judge 147 1.24 Quere, if a sheriff or conftable, as confer vators of the peace, may take bail f. 25 36 The ftatutes empowering juftices to take bail, have taken away this power from the theriff and conftable f. 26 37 The fheriff, in bis torn, might have taken bail; for whofoever is judge of the offence, may bail the offender. But this power is loft by reafon of Edw. 148 1.27 38 Bail is grantable by sheriffs by virtue of the writs de odio et atia mainprize, and, bomine replegiando 1.28 39 The writ de odio et atia is obfolete ibid. 4. c. 2. 14640 In what cases mainprize is yet in force 27 No privilege will excufe a peer from obeying this writ f. 29 ibid. (N) 41 In what cafes homine replegiando and capias in withernam are proper and effectual remedies 28 No perfon difcharged by habeas cor pus, fhall be again imprifoned for the fame offence, other than by legal pro 149 42 By ftat. Weft. 1. outlaws, abjurers, provers, 150 that indifferency is removed, it would be abfurd to bail Page 153 f. 40 53 By feveral ftatutes, the bodies of prifoners convicted or in execution, reftrained from being bailed 153, 154 54 The court of king's bench may bail a perfon upon an outlawry for felony 154 provers, houfe-burners, counterfeiters of the coin or feals, perfons excommuni. cate, and traitors touching the king himself, fhall be in no wife replevifable Page 149 f. 32 43 But perfons indicted for larceny, or of light fufpicion, or for petty larceny (unless accufed as acceffaries), may be let out on furety by the fheriff 149, 55 Juftices of gaol-delivery may bail or convict of manslaughter, and it is faid, for any other felony ibid. 56 A perfon imprisoned by excommunicato capiendo, in a cause of which the fpiritual court has no conufance, may be bailed on babeas corpus, or he may fuperfede the writ ibid. 57 PERSONS taken with the mainour, prifon-breakers, perfons appealed by provers, perfons apprehended upon hue and cry, notorious thieves, dangerous and treasonable rioters, confpirators, refcuers, and perfons guilty of mifprifion, præmunire, or maim, and fuch like notorious offences, feem not to be bailable by the ftat. Weft. 44 Those who are taken for the death of a man, were not replevifable by theriffs, &c. at the common law, Nor can juftices bail for manflaughter or even excufable homicide, though they may for light fufpicion thereof; and even the fuperior courts are cautious how they bail for homicide f. 33, 34 45 By 3 Hen. 7. c. 1. principals and acceffaries acquitted of murder, may be recommitted or bailed at the difcretion of the court till the year and day be paffed 150, 151 46 Perfons imprifoned by the fpecial command of the king, or his privy coune, were not replevitable by the sheriff, &c. 131 f. 36 47 How far perfons committed by command of the king's juftices are replevifable by the fheriff under the ftat. of 59 PERSONS apprehended for arfon, for Weft. 151, 152 153 58 But in offences, under the degree of felony, bail feems to be left, in a great measure, to the discretion of the judge ibid. falfifying the coin, or king's feal, or for treasons, are excluded from replevin by the ftat. West. 156 60 The Sheriff therefore cannot release fuch offenders even by homine replegiando ibid. 1. 46 Yet if any be charged before the fheriff with any of the above offences, upon very light fufpicion, it feems the fheriff is not bound by the ftatute to commit him ibid. 62 If fuch offender be under an arrest, 48 Perfons imprifoned for the foreft, are either of a magiftrate or private perfon, the sheriff cannot replevy him ibid. 63 By modern practice, fheriffs fhall receive no one into their cuftody, but by warrant from a magiftrate 156, 157 The king's bench not restrained by the ftat. Weft. from bailing in all cafes 64 157 65 PERSONS of good reputation indicted of larceny before fheriffs in their torns, and 80 and lords in their lects, are ep'evil-1 able by virtue of the flatute of Weft. Page 157 . 48 79 66 Perfons not excepted by the flatute. who, being of good repute, are imprifoned upon light fufpicion, are alfo replevifable 158 1.49 67 Perfons imprisoned for petit larceny, if there be any colour to prefume their innocence, may also be bailed ibid. f. 50 68 Trefpafs not extending to life or member, except the offence be open and manifeft, is bailable by the ftatute f. 51 69 The appellee of an approver is bailable f. 52 81 70 ACCESSARIES of good reputation are bailable till the principal be convicted 159 71 Perfons notoriously guilty as accel exercifing his judgment on its probable mo tality Page 161 By 1 Rich. 3. c. 3. every jultice of peace may let perfons arrested or imprifoned for fufpicion of felony to bail or mainprize, in like form as if they had been indicted at feflions f. 55 But by 3 Hen. 7. c. 3. the 1 Rich. 3. c. 3. is repealed and power is given to two justices, one to be of the quorum, to let perfons mainpernable by law to bail until the next feffions or gaol-delivery, the recognizance of which shall be certified to the faid feffion, &c. 161, 162 Alfo by 1 & 2 Phil. & Mary c. 13. no justices of the peace fhall admit any perfons to bail who are declared irreplevifable by the ftatute of Weftmin162 f. 57 fter 82 And two juftices, one to be of the quorum, fhall not let to bail any perfon arrested for manslaughter or felony, or for fufpicion thereof, unless the fame juftices be prefent together at the time of the bailment (except in open feffions), and the fame fhall be certified to the next gaol-delivery under their hands 162 f. 58 ibid. 83 And previous to bailing fuch prifoner, the faid juftices, or the one quorum, fhail take his examination and the de pofitions of the witneffes in writing, as far as may be neceffary to prove the felony, &c. and tranfmit the fame to the next gaol-delivery ibid. f. 59° 74 IN WHAT CASES JUSTICES OF PEACE MAY ADMIT OFFENDERS TO BAIL 160 ibid. 85 rifed to bind over neceffary witnesses to appear and give evidence againft fuch prifoners at the gaol-delivery 163 75 Wherever juftices have jurisdiction over the offence they may bail the offender indicted before them, upon the like circumitances as other courts 84 Justices of the peace are autho ito f. 54 may bail 76 Two juftices, one quorum, may bail perfons indicted before the feffions; because any two fuch juftices may try the offence 77 One juftice of the peace may bail any offence, under the degree of felony, over which the fellions has jurifdic tion; for fuch justice, being a judge of the court, retains the difcretionary power of judging of the propriety of 86 The juftices of gaol-delivery shall admitting fuch an offender to bail punish juftices of the peace for offend. 160, 161 ing against the above recited act of 78 One juftice of the peace may either Phil. and Mary bail or imprison a perfon who has given another a dangerous wound, Juftices of peace and coroners in London, Middlefex, and other cities, have authority to let to bail felons and prifoners in the fame manner as before, and to bind over witneffes, &c. ibid. f. 61 ibid. 87 Juftices, as confervators of the peace, may bail any offence only tending di realy |