Page images
PDF
EPUB
[blocks in formation]

THE party who knows or suspects that an indictable offence has been committed, usually goes before a justice of the peace, attended by any other witnesses whom he may be able to procure, and gives the magistrate his information, and that of his witnesses, stating the grounds of suspicion on which the information is grounded. They are sworn, if Christians, on the four Evangelists; if Jews, on the Old Testament, as follows: "You shall true answer make to such questions as shall be demanded of you. So help you God" [If a Jew, "So help you Great Jehovah."] The magistrate then interrogates the accuser, and sometimes his witnesses, and takes down the substance of their replies in the following form: "The in

of

[ocr errors]

formation of who on his oath saith that," &c. stating the facts sworn to. The information is then read to the parties who have given evidence, and if they adhere to the statement, they confirm it by signing it. Upon this the justice usually issues his warrant, according to the charge or the weight of evidence by which it is supported.

When the offence is not of an aggravated nature, and the offender is not likely to abscond, a summons is the more preferable process, and this is necessary where there is no oath of the offence having been committed.

But where oath is made of an offence of a higher nature having been committed, as treason or felony, a warrant should be issued in the first instance, if there appears any reasonable ground for the charge. Although there is a positive charge on oath, yet if the justice sees that no credit is to be given to it, he may decline issuing a warrant. †

For petty assaults the justices are authorised to issue a war

* 2 T. R. 225. Comb. 359.

+ Haw. b. 2. c. 13. s. 18.

rant, on complaint on oath of the accuser; yet a summons is more advisable, as in many cases it is found that the accusation is frivolous, or without sufficient jurisdiction.

The summons should be signed by the magistrate who issues it,* and it may either be directed to the party himself, or to a constable, requiring him to summon or give notice to the party whose attendance is required.

It is usual in the summons not only to fix a day, but a particular hour, for the appearance of the suspected party; and the accused is bound to wait until the justice can attend to the complaint.

In general a summons may be granted without oath ; but in some cases, by particular statutes, an oath is absolutely requisite.

If the complaint is on oath, it should be so stated, † and a copy of the summons should be served upon or left at the residence of the accused; but, in a criminal prosecution against a wife, there is no occasion to summon the husband. ‡

When the offender is not likely to abscond before a warrant can be obtained, it is in general better to apprehend him by warrant than for a private person or an officer to arrest of their own accord, because if the justice should grant his warrant erroneously, no action lies against the party obtaining it, unless he acted maliciously.§

And if a magistrate exceeds his jurisdiction, the officer who executes the warrant is protected from liability, and the magistrate himself cannot be sued until after a month's notice of action, during which he may tender amends; || and no action can be supported against the party procuring the warrant, though the arrest was without cause, unless it can be proved that the warrant was obtained maliciously. T

The magistrate ought, unless he commits upon view of the offence, to examine upon oath the party requiring a warrant, as well as to ascertain that a felony or other crime has actually been committed, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed.

**

* 2 East, 367.
Burr. 1681.

+ B. Abr. c. 5. 2 Barnard. 34. 77. 101. § 3 Esp. 166-7. Smith v. Elsee, 1 Dowl. & Ry. 97.

By the 24 Geo. 2. c. 44. TIT.R. 535. 3 ** 1 Hale, 582. c. 13. 2 T. R. 225.

[blocks in formation]

Esp. 135. 1 Dowl. & Ry. 77.
2 Hale, 110, 111.
Comb. 359.

It is the duty of the magistrate to consider all the circumstances sworn to, and not to grant any warrant groundlessly or maliciously, without such a probable cause as might induce a discreet and impartial man to suspect the party accused to be guilty.

*

If a magistrate grants his warrant without oath of the circumstances affording a reasonable suspicion of the guilt, and the party proves to be innocent, the magistrate will be liable to an action at the suit of the individual aggrieved. †

For the same reason he ought not to grant a warrant on a quaker's affirmation, which is inadmissible in criminal proceedings, to criminate or excuse another, though it may be read to exculpate himself. ↑

It is also the duty of the magistrate to take all charges, of whatever nature, kind, or complexion they may be, in writing. §

No. 1. The usual Form|| of an Information for a criminal

County of

to wit.

Offence.

The information and complaint of A. B. of in the county of

yeoman, taken on the oath of the said A. B. before me

day of

in the

W. R. esquire, one of his majesty's justices of the peace in and for the said county, on the year of our Lord one thousand eight hundred and twenty who on his oath saith [state the matter of the offence which may in general be described as in the preceding forms, and as in the form of the warrants and commitments, or as in an indictment, though more concisely than the latter, and if the offence is properly stated the same description will suffice in the warrant] and thereupon the said A. B. prayeth that justice may be done in the premises [or, and that my warrant may issue against the said C. D. to answer the premises].

[blocks in formation]

2 Burr. 1117.

2 Atk. 70.

Phil. Ev. 13.

[blocks in formation]

1 Dowl. & Ry. 121. Peake, Ev. 143. § 1 Leach, 241.

The forms of informations sometimes vary, but this may be safely used

in all cases.

County of

to wit.

No. 2. The like, in another Form.

Be it remembered, that on the

day

of
in the year of our Lord one thou-
sand eight hundred and twenty
A. B. of

at

in the said county,

in the county of yeoman, in his proper person cometh before me W. R. esquire, one of his majesty's justices of the peace in and for the said county, and upon his oath maketh complaint that [state the offence, as mentioned in the form, No. 1. p. 116.]: and therefore the said A. B. prayeth that justice may be done in the premises.

Before me,

No. 3. The like, before Two Justices.

County of

Be it remembered, that on this

of

to wit.

day

in the year of our Lord one thousand eight hundred and twenty A. B. of

at

butcher,

in the county of cometh before us, W. R. and E. R. M. esquires, two of his majesty's justices of the peace in and for the county of and giveth us to understand and be informed that [state the offence, as directed in the form, No. 1. p. 116.] and thereupon the said A. B. prayeth the judgment of us in the premises, and that our warrant may issue against the said C. D. to answer the premises.

Exhibited before us,

No. 4. The like for obtaining Goods on false Pretences,

[merged small][ocr errors][merged small]

under 30 Geo. 2. c. 24. s. 1.

of

day

Be it remembered, that on this
one thousand eight hundred and

twenty

said, in the county of

rish of

[merged small][ocr errors][merged small][ocr errors]

in the county of

[blocks in formation]

in his proper person before me, one of his majesty's justices of the peace in and for the said county of his oath complaineth that C. D. late of the parish last aforesaid, in the county of aforesaid, did after the twentyninth day of September, one thousand seven hundred and fifty

now last past at the aforesaid, unlawfully,

seven, to wit, on the day of parish aforesaid, in the county of knowingly, and designedly, by false pretences, obtain from one G. H. [one pound of tea, two pounds of sugar, and half a hundred weight of soap, and ten shillings in money, describe the property obtained] of the monies, goods, wares, and merchandize of the said G. H. with intent to cheat and defraud the said G. H. of the same, contrary to the form of the statute, &c.

County of

No. 5. The like for Larceny.

[Commence as form, No. 1. p. 116.] who being upon oath, says, that on the day of

to wit. now last past, at the parish of in the said county [twelve silk handkerchiefs, fifty-six yards of Irish linen, twenty yards of calico of the goods and chattels of this informant, were feloniously stolen, taken, and carried away from [the dwelling house or warehouse, as it may be] of this informant situate at in the parish of in the county of aforesaid, and that he hath just cause to suspect, and doth suspect and verily believes, that C. D. late of in the county of

aforesaid, labourer, did then and there feloniously steal, take, and carry away the same, against the peace, &c. And therefore the said informant prayeth me, the said justice, to issue my warrant to apprehend the said C. D. in order that he may be dealt with according to law.

[blocks in formation]

No. 6. The like, of Two Persons, for disturbing a licensed dissenting Congregation, under 1 W. & M. c. 18. s. 18. and 52 Geo. 3. c. 155. s. 12. *

County of

to wit. that on Sunday one E. F. of

[Commence as form, No. 2. p. 117.] and upon their several corporal oaths give me the said justice to understand and be informed, last, being the day of instant, yeoman, willingly and of purpose, ma

* See note, p. 119.

« PreviousContinue »