4. What is simple larceny? 229 5. In what cases may a carrier of goods commit the offence of larceny upon those goods? 280 6. What is enacted by statutes 33 Hen. VI. c. 1 and 21 Hen. VI. c. 7 in cases of servants embezzling their master's goods? 230, 231. 7. What is the offence of embezzling goods of which the offender had not the possession, but only the care or use? 231. 8. Under what circumstances may a man be guilty of felony in taking his own goods? 231. 9. What is a sufficient asportation of goods to constitute a larceny? 231. 10. Who are indemnified by the requisite to a larceny that it must be felonious, that is, done animo furandi? 232. 11. Why can no larceny be committed, by the rules of common law, of things that adhere to the freehold; and why is the severance of them merely trespass by common law; but in what cases may the taking them away amount to larceny? 232, 233. 12. And now, by statute 4 Geo. II. c. 32, how are what offences of this nature punished; and what is enacted by three statutes of Geo. III. as to the offence of stealing any trees, roots, shrubs, or plants? 233, 234. 13. What instance of stealing out of mines is punished by statute 25 Geo. II. c. 10; and how? 234. 14. Why is it no felony to steal writings relating to a real estate? 234. 15. Upon what footing are bonds, bills, and notes put by the statute 2 Geo. II. c. 25; and what is enacted as to embezzlements at the Bank of England, South Sea Company, and post-office, by statutes 15 Geo. II. c. 13, 24 Geo. II. c. 11, and 7 Geo. III. c. 50? 234, 235. 27. What is the malicious mischief which the law considers as a public crime? 244. 28. What is enacted by statute 22 Hen. VIII. c. 11 as to destroying the powdike in the fens of Norfolk and Ely; what offence is it to destroy the sea-banks, river-banks, public navigations, and bridges erected by virtue of many acts of parliament; what does the statute 43 Eliz. c. 13 enact for preventing rapine on the northern borders, and what is blackmail; what is enacted by the statutes 22 & 23 Car. II. c. 7 as to burning or destroying corn, hay, &c., or killing cattle; 4 & 5 W. and M. c. 23 as to burning on any waste between Candlemas and midsummer; 1 Anne, st. 2, c. 9 and 4 Geo. I. c. 12 as to destroying ships to the prejudice of the owners and insurers; 12 Anne, st. 2, c. 18 as to damaging ships in distress; 1 Geo. I. c. 46 as to setting on fire underwood; 6 Geo. I. c. 23 as to defacing the garments of persons passing in the streets; by the Waltham black-act, extended to what by 9 Geo. III. c. 29; by 6 Geo. II. c. 37 and 10 Geo. II. c. 32 as to the cutting down banks, cutting hop-binds, or firing coal-mines; 11 Geo. II. c. 22 as to deterring buyers of corn, seizing corn-carriages or horses, or spoiling corn; 28 Geo. II. c. 19 as to firing furze in any forest or chase; 6 Geo. III. c. 36 & 48 and 13 Geo. III. c. 33 as to destroying trees or plants; 9 Geo. III. c. 29 as to the destroying mine-engines or enclosure-fences; and 13 Geo. III. c. 38 as to destroying the Plate-Glass Company's property? 245-257. 29. What is forgery, or the crimen falsi? 247. 30. What forgeries have been capitally punished by a multitude of statutes since the Revolution, when paper credit was first established? 248, 249. 31. What do several statutes of Geo. III. 16. When may larceny be committed of animals enact as to forgeries of standard plate-marks, feræ naturæ; and what is enacted on this sub-frauds on the stamp-duties, counterfeiting the ject by statutes 9 Geo. I. c. 22, 16 Geo. III. c. 30, and 5 Geo. III. c. 14? 235, 236. 17. Of what animals domitiæ naturæ can larceny be committed; and what is enacted by statute 10 Geo. III. c. 18 as to dog-stealing? 236. 18. Can larceny be committed if the owner be unknown? 236. 19. When only is stealing a corpse felony ? 236, 237. 20. How is simple larceny, whether grand or petit, punished; and how is the punishment for the latter offence mitigated? 238, 239. 21. But in what cases of simple larceny is the benefit of clergy taken away by statute; and why? 239, 240. 22. What is mixed, or compound, larceny? 240. 23. What is larceny from the house; in what four domestic aggravations of larceny above the value of twelvepence is the benefit of clergy denied, and to whom ; in what two larcenies to the value of five shillings, and in what one to the value of forty shillings? 241, 242. 24. Of what two sorts is larceny from the person? 242. 25. How is the offence of privately stealing from a man's person punished? 242. 26. What three requisites are there to the offence of open and violent larceny from the person, or robbery; and how, and in whom, is it now in all cases punished? 243, 244. Plate-Glass Company's seal, and forging the superscription of a letter in order to avoid the payment of the postage? 249. 32. What is enacted by statute 2 Geo. II. c. 25 as to the forgery of deeds, wills, notes, &c.; and by statutes 7 Geo. II. c. 22 and 18 Geo. III. c. 18 as to acceptances of bills of exchange, or the number or principal sum of any accountable receipt for any security for money, or any order for the payment of money for the delivery of goods? 249, 250. CHAP. XVIII.-Of the Means of preventing Offences. 1. How may crimes and misdemeanours be prevented? 251. 2. In what does this security consist? 252, 253. 3. Who may demand it; to whom may it be granted; what is a writ called a supplicavit; and how ought feme-coverts and infants to find security? 253, 254. 4. In what four ways may a recognizance be discharged? 254. 5. For what causes is a recognizance for the peace grantable; what is called swearing the peace against another; and what if the party do not find such sureties as the justice shall re quire? 254, 255. 6. How may such recognizance be forfeited; | missions of oyer and terminer, and general yaol when does a trespass upon the lands or goods delivery, directed; who are of the quorum, and of another, and when do mere reproachful what are they empowered to do? 270. words, forfeit such recognizance? 255, 256. 1. IN discussing the method of inflicting punishments, what two things are to be considered? 258. 2. Of what two natures are the several courts of criminal jurisdiction? 258. 3. In what degree are these criminal courts independent of each other; and why are they so; and which are the twelve public ones, ranking | them for this reason according to their dignity? 258,259,261, 265, 268, 269, 271, 273–275. 4. Who are tried by the high court of parliament, how, and for what offences; and what is enacted by statute 12 & 18 W. III. c. 2 as to any plea of pardon under the great seal? 259–261. 16. When are special commissions of oyer and terminer and gaol-delivery issued? 271. 17. Can a man act as judge, or other lawyer, in these commissions, within his own county, where he was born or has inhabited? 271. 18. When, and before whom, must the cour. of general quarter sessions of the peace be held; and what is its jurisdiction and mode of proceeding; is there any appeal from its orders upon motion; and who has the custody of its records or rolls? 271, 272. 19. What other quarter sessions are kept in most corporation towns; and in what one instance only have they, by statute 8 & 9 W. III. c. 30, the same authority as the general quarter sessions of the county; and for what purposes, in both corporation towns and counties, is a special or petty session held, by whom? 272, 273. 20. What is the sheriff's tourn, or rotation; and when is it held? 273. 21. What is the court-leet, or view of frankpledge; when, and before whom, is it held; whence is its origin; what is the jurisdiction of both the sheriff's tourn and this court; who are obliged to attend them; what has occasioned them to grow into disrepute; and where hath their business greatly devolved? 273, 274. 22. What is the object of the jurisdiction of 5. For what is the court of the lord high stew-the court of the coroners? 274. ard of Great Britain instituted; how, and to whom, is the office now granted; what is the only plea a peer may plead in the court of king's bench; what is the form of proceeding in case of a trial in the court of the lord high steward; and what does the statute 7 W. III. c. 3 enact as to the number of peers who shall vote on the trial? 261-263. 23. To what is the court of the clerk of the market incident; what is the object of its jurisdiction; whence is the officer called the clerk; and what punishments has he authority to inflict? 275. 6. Where is the trial of an indicted peer properly during the session of parliament; and what different authority has the lord high steward when he sits in the high courts of parliament, and when he sits in his own court? 263. 7. Have bishops a right to sit in the court of the lord high steward; and what do they, in point of fact? 264, 265. 8. What is the cognizance of the crown side of the court of king's bench; and what is the effect of the coming of this court into any county? 265. 9. What was the court of starchamber; and whither hath reverted all that was good and salutary of its jurisdiction? 266, 267. 10. When was the court of chivalry a criminal court; and what used to be its jurisdiction then? 268. 11. What criminal cognizance has the court of admiralty; and what is the method of its trials by statute 28 Hen. VIII. c. 15? 268, 269. 12. Before whom, and when, are the courts of oyer and terminer, and general gaol-delivery, held? 269. 13. By virtue of what five several authorities lo the judges sit at what is usually called the ussizes, two of which are of a civil nature and bave been before explained? 269. 14. Who are bound to attend the third, which Is the commission of the peace? 270. 15. To whom are the fourth and fifth commis 24. What are the three private or special courts of criminal jurisdiction? 276, 277. 25. For what purpose was the court of the lord steward, treasurer, or comptroller of the king' household instituted by statute 8 Hen. VII. c. 14; and what is the course of its proceedings? 276. 26. For what purpose was the court of the lord steward of the king's household, or, in his absence, of the treasurer, comptroller, and steward of the marshalsea, erected by statute 33 Hen. VIII. c. 12; and what is the course of its proceedings? 276. 27. What is the jurisdiction of the criminal courts of the two universities, or their chancellors' courts; what is the jurisdiction of the court of the lord high steward of the university (of Oxford, by charter of 7 June, 2 Hen. IV., confirmed by statute 13 Eliz. c. 29); by whom must he be nominated and approved; and what is the course of proceeding when any indictment is found against any person privileged by the university? 277, 278. CHAP. XX.—Of Summary Convictions. 1. INTO what two kinds are the proceedings in the courts of criminal jurisdiction divisible? 280. 2. What is meant by a summary proceeding; and what are the three branches of summary proceedings ? 280-283. 3. By whom are all trials of offences and frauds contrary to the laws of excise and other branches of the revenue determined? 281. 4. What offences are punished in a summary way by justices of the peace; and to what three | prosecution; and what if it be wantonly and mischievous effects does the system give rise? maliciously raised without cause? 293, 294. 281, 282. 5. What is the process of these summary convictions; but what check has the common law thrown upon them which is now held to be an absolute requisite to them? 282, 283. 6. Of what two sorts are the contempts which are immemorially punished in the summary way of attachment by the superior courts of justice? 283. 7. Of what seven kinds are the principal instances of either sort? 284, 285. 8. Why is the attachment for the species of contempt arising from the disobedience to any rule or order of court by parties to any proceeding not affected by a general act of pardon; and how may obedience, by statute 10 Geo. III. c. 50, be enforced against any person having privilege of parliament? 285.· 9. What does the statute of Westminster 2, 13 Edw. I. c. 39, ordain as to resistance of the process of the king's courts? 286. 10. What if the contempt be committed in the face of the court; and what is the course of proceeding in matters that arise at a distance? 286, 287. 11. What if the party refuse to answer the interrogatories upon oath of the court? 287. 12. What if the party can clear himself upon oath; but what if he perjure himself? 287. CHAP. XXI.-Of Arrests. 1. UNDER what twelve general heads, following each other progressively, may the regular and ordinary proceedings in the courts of criminal jurisdiction be distributed? 289. 2. What is arrest; who are liable to it in criminal cases; what charges will justify it; and in what four ways may it be made? 289. 3. By whom may a warrant be granted, and in what cases ordinarily; upon what only should it be granted; what is requisite to its legality; what is a special, and what a general, warrant ; and when, by statute 24 Geo. II. c. 44, is the officer who executes a warrant indemnified? 290, 291. 9. What rewards and immunities are bestowed on such as apprehend felons, by statutes 4 & 5 W. and M. c. 8 and 8 Geo. II. c. 16, as to highwaymen; by statutes 6 & 7 W. III. c. 17 and 15 Geo. II. c. 28 as to offenders against the coinage, ty statutes 10 & 11 W. III. c. 23 and 5 Anne, c. 31 as to burglars; by statute 6 Geo. I. c. 23 as to helpers of others to their stolen goods, for reward; by statutes 14 Geo. II. c. 6 and 15 Geo. II. c. 34 as to sheep-stealers; and by statutes 16 Geo. II. c. 15 and 8 Geo. III. c. 15 as to premature returners from transportation? 295. CHAP. XXII.—Of Commitment and Bail. 1. WHAT is the justice before whom a prisoner is brought bound to do by statute 2 & 3 Ph. and M. c. 10; and in what cases only is it lawful totally to discharge him? 296. 2. When must he be committed to prison; and when ought bail to be taken? 296, 297. 3. What offence is it by the common law, as well as by the statute Westminster 1 and the habeas corpus act, to refuse or delay to bail any person bailable; and what is expressly declared as to excessive bail by statute 1 W. and M. st. 2, c. 1? 297. 4. On the other hand, what if the magistrate take insufficient bail? 297. 5. Upon what ten accusations are persons clearly not admissible to bail by the justices? 298, 299. 6. Upon what three accusations do persons seem to be in the discretion of the justices whether bailable or not? 299. 7. Upon what three accusations must persons be bailed upon offering sufficient security? 299. 8. But who may bail for any crime whatsoever, except only persons committed by whom? 299 300. 9. This imprisonment being only for safe cus tody, what is the gaoler not justified in doing! 300. 4. Whither does a warrant from a justice of the CHAP. XXIII.-Of the several Modes of Prose court of king's bench extend; and where is it teste'd, or dated? 291. 5. But what must take place before the warrant of a justice of the peace in one county can be executed in another; and what is enacted on this subject by statute 13 Geo. III. c. 31? 291, 292. 6. By what five officers may arrests be executed withou, warrant? 292. 7. When is any private person bound to make an arrest, on what pain; and what is he justified in doing in order to such arrest; but what if the arrest be only upon suspicion? 293. 8 What is arrest by hue (from huer, to shout) and cry (hutesium et clamor); what does the statute of Winchester, 13 Edw. I. c. 1 & 4, direct relative to this matter; what is the foundation of an action against the hundred in case of any loss by robbery; what does the statute 27 Eliz. c. 13 enact as to the sufficiency of hue and cry; and what that of Geo. II. c. 16 if an officer refuse or neglect to make it; by whom may it be raised what powers has the constable in its cution. 1. In what two ways are offenders prosecuted, or formally accused? 301. 2. By one of what two proceedings is the former way of prosecution? 301. 3. What is a presentment, properly speaking! 301. 4. What is an inquisition of office; and of what two kinds? 301, 302. 5. What is an indictment? 602. 6. Of whom are the grand jury composed; by whom are they instructed, or charged; and what evidence only are they to hear? 302, 303. 7. In what case only can the grand jury inquire of a fact done out of that county for which they are sworn; and what is enacted by the statute 2 & 3 Edw. VI. c. 24 when a man is wounded in one county and dies in another; by statute 2 Geo. II. . 21 if the stroke or poisoning be in England and the death out of it, or vice versa, by several statutes of Hen. VIII. and Edw. VI. where treason is committed out of the realm; by two statutes of Hen. VIII. as to offences against the coinage committed in Wales; by statute 33 Hen. VIII. c. 23 as to trials for murder by the king's special commission; by statute 10 & 11 W. III. c. 25 as to capital crimes committed in Newfoundland; by statute 9 Geo. I. c. 22 as to offences against the black-act; by statutes 8 Geo. II. c. 20 and 13 Geo. III. c. 84 as to felonies in destroying turnpikes or river-works; by statute 26 Geo. II. c. 19 as to stealing from vessels wrecked or in distress; by statute 12 Geo. III. c. 24 as to destroying the king's ships out of this realm; and by statute 13 Geo. III. c. 63 as to misdemeanours committed in India? 303, 305. 8. In what cases is the offence to complete in two counties or parts of the kingdom, that the offender may be indicted in either? 305. 9. What do the grand jury if, having heard the evidence, they think the accusation groundless; may a fresh bill be preferred; and what do they if they be satisfied of the truth of the accusation? 305. 10. But what number of the grand jury must agree in order to find a bill? 306. 11. What three things must be precisely and sufficiently ascertained in an indictment? 306. 12. What is enacted by statute 1 Hen. V. C. 5 as to the identification of the person; in what case is a mistake in the time and place not held to be material; but when is it very material that the indictment should name the time? 306. 13. In what crimes must particular words of art be used which are so appropriated by law to express the precise ideas which it entertains of the offence that no other words, however synonymous they may seem, are capable of doing it? 307. 14. In what cases, in indictments for murder, need not the length and depth of the wound be expressed; and when is it necessary that the thing which is the subject or instrument of the offence should be expressed? 307. 24. What are the only two appeals now 12 force? 314. 25. For what crimes against the parties themselves may appeals be instituted; what is the only crime against one's relation for which an appeal can be brought; and by what relations only can this be brought? 314. 26. What if the wife marry again, before, pending, or after judgment of her appeal; when shall the heir, and when shall the wife, not have the appeal; what if there be no wife, and the heir be accused of the murder; and within what time, by the statute of Gloucester, must all appeals of death be sued? 314, 315. 27. If the appellee be acquitted, can he be afterwards indicted for the same offence; and if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, what, in strictness, ought to happen, by virtue of the statute 3 Hen. VII. c. 1; but what if he have been found guilty of manslaughter on an indictment, and have had the benefit of clergy and suffered the judgment of the law? 315. 28. What shall the appellor suffer, by virtue of the statute of Westminster 2, if the appellez be acquitted? 316. 29. If the appellee he found guilty, what judgment shall he suffer, with what remarkable difference from the consequences of a conviction by indictment? 316. CHAP. XXIV.-Of Process upon an Indictment 1. Ir the offender have fled, or secrete himself, in capital cases, or have not, in smaller misdemeanours, been bound over to appear at the assises or sessions, may an indictment be preferred against him in his absence; can he be tried although he do not personally appear; and what is the express provision of statute 28 Edw. IIL c. 3? 318. 2. What is the proper process to bring in an 15. By one of what two proceedings is the offender, or an indictment for any petty misdemeamethod of prosecution without any previous find-nour or on a penal statute? 318. ing by a jury? 308, 312. 16. What was the proceeding when a thief was taken with the mainour; and when does a similar process remain to this day? 307, 308. 17. Of what two sorts are informations; and what are the limitations of prosecutions upon penal statutes, by statute 31 Eliz. c. 5? 308. 18. Of what two kinds are the informations which are exhibited in the name of the king alone; by whom are they respectively filed; what are their respective objects; and by whom must they be tried, and by whom punished? 308, 309. 19. But to what are these informations confined? 310. 20. What is enacted by statute 4 & 5 W. and M. c. 18 as to informations exhibited by the master of the crown-office; but what as to informations at the king's own suit, filed by the attorneygeneral? 311, 312. 21. Is there not still another species of information? 312. 3. What if, by the return to such process, it appear that the party hath lands in the county, and what if the sheriff return that he hath none in his bailiwick? 318, 319. 4. But what happens on indictments for treason or felony; and what is now the usual practice in the case of misdemeanours? 319. 5. When shall the offender be put in exigent, in order to his outlawry; and what is the form and consequence of this proceeding? 319. 6. What is the punishment for outlawries upon indictments for misdemeanours; but to what does an outlawry in treason or felony amount? 319. 7. Who may arrest an outlaw, on a criminal prosecution; and when is the whole outlawry illegal and may be reversed? 320. 8. When may a writ of certiorari facias be had; what is its effect; and for what four purposes is this frequently done? 320, 321. 9. At whose instance may a certiorari be granted; and when is it generally refused? 821. 10. When, and how, must indictments found by 22. What is the method of criminal prosecution the grand jury against a peer, or in places of exwhich is merely at the suit of the subject by ap-clusive jurisdiction, be delivered into the court peal; and why has it fallen into disuse? 312, 313. 23. What is the origin of an appeal; and what was a weregild? 313, 314. of parliament, or into that of the lord high steward, or to the courts of such exclusive jurisdiotion? 321. CHAP. XXV.-Of Arraignment and its Incidents. 1. WHAT is arraignment (ad rationem ponere; in French, ad reson, or, abbreviated, à resne) ? 822. 2. Why is the prisoner called upon to hold up his hand; and what if he refuse to do so? 323. 3. In what cases, by statute 1 Anne, c. 9, may the accessory be proceeded against as if the principal felon had been attainted; and why? 824. 4. What is a plea to the jurisauction; and when may it be made? 333. 5. When is a demurrer to the indictment incident to criminal cases; what if the point of law be adjudged against the prisoner; and why are demurrers to indictments seldom used? 333, 334. 6. For what principally is a plea in abatement; but why, in the end, does little advantage accrue to the prisoner by means of these dilatory pleas? 334, 335. 7. What are special pleas in bar; of what four kinds as applicable to both appeals and indict 4. One of what two circumstances is incidentments? 335. to every arraignment? 324. 5. In what three cases is a prisoner said to stand mute? 324. 6. What ought the court to do if the prisoner say nothing; and what if he appear to be dumb ex visitatione Dei, in which case, can judgment of death be given against him? 324, 325. 7. But, what hath long been clearly settled if he be found to be obstinately mute, in high treason, petit larceny, and all misdemeanours; and what, by the ancient law, in appeals or indictments for other felonies or petit treason? 325. 8. What was trina admonitio; was the benefit of clergy allowed to an obstinate mute; and what was the sentence of peine (prisone) forte et dure? 325, 327. 9. Was the trial by rack ever attempted to be introduced into England? 326. 8. Upon what universal maxim of the common law is the plea of autrefoits acquit grounded; is an acquittal on an appeal a good bar to an indictment on the same offence, and vice versa, taking into consideration what was enacted by the statute 3 Hen. VII. c. 1 to prevent the practice of not trying any person on an indictment of homicide till after the year and day within which appeals may be brought were past, by which time it often happened that the witnesses died or the whole was forgotten? 335, 336. 9. When, and of what, is the plea of autrefoits convict a good plea in bar? 336. 10. Of what is the plea of autrefoits attaint a good plea in bar; and wherefore does it differ from the former two pleas? 336. 11. But what four exceptions are there to this general rule, wherein, cessante ratione, cessat et ipsa lex; and from these instances what invariable requisite to the validity of a plea of autre foits attaint may we collect? 336, 337. 10. To what did standing mute amount, in all cases, by the common law; did the prisoner derive any advantage from suffering death by the sentence of peine forte et dure over that of judgment 12. What is one advantage that attends pleadupon trial; and what was enacted in abolitioning a pardon in bar or in arrest of judgment before of this sentence by statute 12 Geo. III. c. 20? sentence is past, which gives it by much the pre328, 329. ference to pleading it after sentence or attainder! 337. 11. What is the consequence of the prisoner's simple confession of the indictment? 329. 12. But what is confession by way of approvement; who is the approver or prover, probator, and who is the appellee; in what offences only can an approvement be; to what does it amount; and what if the appellee be acquitted? 329, 330. 13. Why has the admission of approvements been long disused by courts of justice; and how is all the good arising from the method of approvements provided for by several statutes in the cases of coining, robbery, burglary, housebreaking, horse-stealing, and larceny to the value of 5s. from shops, stables, &c., and by statute 29 Geo. II. c. 30 in case of metal-stealing? 330, 831. 14. What is the usual practice, too, of justices of the peace as to admitting what is generally termed king's evidence? 331. CHAP. XXVI. Of Plea and Issue. 1. WHAT is the plea of the prisoner; in what cases does he plead; and of what five kinds is the plea? 332. 2. What was the plea of sanctuary; when might a criminal claim sanctuary; what did it superinduc; and when was the whole privilege abolished? 332, 333. 3. Was there not another declinatory plea, which was used to be pleaded before trial or conviction? 333. VOL. IL-45 13. Wherein do special pleas in bar differ in criminal prosecutions and in civil actions, and why; and when a prisoner's plea in bar is found or adjudged against him, what shall he have; for what is the only plea in consequence whereof death can be inflicted? 338. 14. In cases of what indictments can there be no special justification put in by way of plea, and why; and why is the general issue not guilty, non culpabilis or nient culpable, the most advantageous plea for a prisoner? 338, 339. 15. How does the commentator explain the abbreviations of "non cul.," which was formerly used to be written upon the minutes when the prisoner had pleaded not guilty, and "cul. prit.," the replication on behalf of the king, by which issue was joined, and which, from the circumstance of the clerk of the arraigns immediately inquiring of the prisoner, "cul. prit, how wilt thou be tried?" is commonly understood as if he had fixed an opprobrious name on the prisoner? 339, 340. 16. But what is Mr. J. Christian's conjecture as to the word prit? See his note to this chapter. 17. To what only has this form of inquiry reference at present; what can be the only trial upon indictments since the abolition of ordeal; and therefore what if the prisoner refuse to put himself upon the inquest in the usual form? 340. 341. 705 |