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upon the first capias, a second, and a third shall issue, called an alias, and a pluries capias. But, on indictments for treason or felony, a capias is the first process; and for treason or homicide, only one shall be allowed to issue (a), or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony; the provisions of this statute being in most cases found impracticable (6) (2). And so, in the case of misdemesnors, it is now the usual practice for any judge of the court of King's Bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant (3). But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary. For, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry: that is, he shall be exacted, proclaimed, or required to surrender, at five county courts; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law; so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise.
The punishment, for outlawries upon indictments for mis,
(a) See Appendix $ 1.
(6) 2 Hal. P. C. 195.
(2) But see the case of Rer v. Yan dall, 4 T. R. 521, from which it appears that it is usual to issue three writs of capias in all cases.
(3) The statute 48 Geo, III c. 58, enacts, that whenever any person shall be charged with any offence for which he may be prosecuted by indictment or information, in his Majesty's court of King's Bench, not being treason or felony, and the same shall be made appear to any judge of the same court by affidavit or certificate, of an indictment or information being filed against such person in the said court for such offence, it shall and may be lawful for such judge to issue his warrant under his hand and seal, and thereby cause such person to be apprehended and brought
before him or some other judge of the same court, or before a justice of the peace, in order to his giving bail to such amount as shall be expressed in the warrant, and in neglect thereof, to commit such person for trial. Persons committed under this Act, neglecting to appear and plead to the indictment or information, (a copy of which is to be delivered eight days before they are required to appear and plead,) a provision is made for the prosecutors, after notice, to enter an appearance and plea for them, and such proceedings are to be thereupon had, as if the defendants had adopted these steps themselves. See 1 Chit. Cr. L. 339, and the authorities there collected on this subject.
treason or felony is tanta
viction; it may be reversed by writ of error, and the party be let in to plead to an indictment.
Outlawry, in demesnors, is the same as for outlawries upon civil actions,
- of which, and the previous process by writs of capias, exiqi viction ; it may facias, and proclamation, we spoke in the preceding book (c);
viz, forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country (d)(4). His life is,
however, still under the protection of the law, as hath for[*320] merly been *observed (e): so that though anciently an out
lawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him (s); because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him : yet now, to avoid such inhumanity, it is holden that no man is entitled to kill him wantonly or wilfully; but in so doing is guilty of murder (9), unless it happens in the endeavour to apprehend him (h). For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to execution. But such outlawry may be frequently reversed by writ of error ; the proceedings therein being, as it is fit they should be, exceed
(c) See vol. III. p. 283. 4.
(1) Mirr, c. 4, § 4. Co. Litt. 128.
(4) See 2 Rol. Abr. 306, pl. 40; Co. Litt. 128, b. ; Rex v. Earler, Fort. 40; Rery. Simpson, 10 Mod. 379. In all cases, consequently, of treason and felony, the outlawry gives the forfeiture of the lands of the outlaw, in the former cases to the king, in the latter to the lord of whom they are immediately held; 2 Hale, P. C. 206. And in cases of treason or murder, the outlawry works corruption of blood and forfeiture of dower. With regard to the goods of the party against whom an exigent has been awarded, upon an indictment for treason or felony, the very issuing of the writ makes them forfeit to the king, or to the lord of some franchise to whom that liberty is granted, from the time of the teste of the writ; 2 Hale,
P. C. 204. If, therefore, the writ of exigent be well awarded in the first instance, the goods will remain forfeit until the award of the exigent be reversed by special writ of error; for the reversal of the outlawry only, is not a reversal of the writ of exigent. In such case, therefore, the writ of error should be, tam in adjudicatione brevis de exigi facias, quam in promulgatione utlagariæ ; 2 Hale, P. C. 205. When the defendant is outlawed, a writ of cupias ultagatum may be awarded to take him into custody, and upon this process any doors may be broken to apprehend the outlaw; 1 Chit. Cr. L. 367; Semayne's case, 5 Co. Rep. 91 ; Collyer's Cr. St. 521, n.
ingly nice and circumstantial; and, if any single minute point be omitted or misconducted, the whole outlawry is illegal, and may be reversed; upon which reversal the party accused is admitted to plead to, and defend himself against, the indictment (5).
Thus much for process to bring in the offender after in- The indictment dictment found; during which stage of the prosecution it is, moved by cer. that writs of certiorari facias are usually had, though they court of king's may be had at any time before trial (6), to certify and remove time before trial; the indictment, with all the proceedings thereon, from any in- be granted either ferior court of criminal jurisdiction into the court of King's tor or the Bench (7); which is the sovereign ordinary court of justice in
may be re
tiorari into the
bench at any
to the prosecu
(5) Outlawry may be avoided or re- lands. As to what shall be sufficient versed at any time, from the very ear- evidence of the death of the ancestor, liest stages of the process, even until see Tidd, 146. Since the passing of the defendant has been taken upon the the 7 Geo. IV. c. 64, § 9, the exigent cupias utlagatum. Nor is there any against an accessary need not be stayed difference in this respect between civil until outlawry of the principal; Colland criminal cases; and it seems to be ver's Cr. St. 520. See generally upon considered that the proceedings in out this subject, id. Process, 511, 522; lawry generally, whether in indictments Tidd, Outlawry, 128, 146; Harrison's for felony, or in civil actions, have al- Dig. Outlawry, 1545; 1 Chit. Cr. ways been, and ought to be, regulated L. Process, 347, 370; and the numeby the same rules : see Bryan v. Wag- rous cases there respectively collected. staffe, 8 D. & R. 208; 5 B. & C. 314. (6) It seems that, strictly speaking,
Therefore, it will be error, in crimi certiorari lies till judgment is given, nal as well as civil cases, if the person and even after judgment, in cases where outlawed was, at the time that outlawry a writ of error does not lie ; but that, was pronounced, within the age of dis- in practice, it is seldom granted to recretion, that is, under the age of four move an indictment after a conviction, teen ; Com. Dig. Utlagary (C. 1); unless for some special cause; and or, if at the time the exigent was awarded, chiefly where no remedy is to be had he was in prison, Litt. § 437; or out by writ of error; see Collyer's Cr. St. of the realm ; O'Kearney's case, Skinner, 45, and the cases there collected. 16. Nor will the circumstance of his (7) For the definition and history of departure, if before exigent awarded the writ of certiorari, see Fitz. N. B. for the express purpose of avoiding the 554. As the court of King's Bench consequences of the indictment, be a has a general superintendence over all sufficient ground for preventing the re- other courts of criminal jurisdiction, so versal of an outlawry; Bryan v. Wag- it may award a certiorari to remove staffe, 8 D. & R. 208; 5. B. & C. 314. proceedings from them, unless they are Every outlawry determines upon the expressly exempted from such superindeath of the party outlawed; see Tidd, tendence by the statutes creating them; 145. Therefore, in cases of felony, 2 Hawk. P.C. 286; Rer v. Young, below the degree of treason or murder, 2 T. R. 473; Rer v. Jukes, 8 T. R. a reversal of the outlawry by the heir 542. But certiorari cannot be taken for the death of his ancestor, will be fol- away by any general, but only by exlowed by restitution of the forfeited press negative words; Rex v. Reeve,
causes criminal. And this is frequently done for one of these four purposes ; either, 1. To consider and determine the validity of appeals or indictments and the proceedings thereon ; and to quash or confirm them as there is cause: or, 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bạr of the court of King's Bench, or before the justices of nisi prius (8): or 3. It is so removed, in order to plead the king's pardon there: or, 4. To issue process of outlawry against the offender, in those *counties or places where the process of the inferior judges will not reach him (i). Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the court of King's Bench remands the record to the court below, to be there tried and determined (9). A certiorari may be granted at the instance of either the prosecutor or the defendant: the former as a matter of right, the latter as a matter of discre
(i) 2 Hal. P. C. 210.
1 W. Bl. 231; and a statute, taking away certiorari, does not take it from the crown, unless expressly mentioned; Rer v. - 2 Chit. R. 136; and see Rer v. Tindal, 15 East, 339, n. Certiorari lies from the court of King's Bench to justices, even in cases which they are empowered finally to hear and determine ; 2 Hawk. P. C. 236; Rer v. Morely, 2 Burr. 1040; Hartley v. Hooker, Cowp. 524.
(8) The court of King's Bench refused to grant a certiorari to remove an indictment of murder from the Yorkshire assizes, in order to a trial at bar, or in another county, on the ground that the prisoners (who had pleaded to the indictment,) could not have a fair and impartial trial in the former county; Rer ov. Mead, 3 D. & R. 301. The refusal, however, did not proceed upon any doubt of the power of the court to
grant the writ, but upon discretionary principles only, namely, that the effect of the removal would be to produce a delay in the administration of justice, and such an increase of expense as might oblige the prosecutors to abandon the prosecution; and that the application had been tardily made. In Rer v. Thomis, 4 M. & S. 442, a certiorari was granted, at the instance of the attorney general on behalf of a prisoner, to remove an indictment for murder from the sessions of the city of Rochester.
(9) The better opinion seems to be, that a certiorari being once delivered into court, makes all subsequent proceedings in the record to be removed by it erroneous. Yet, at the sessions, if it be not delivered before the jury are sworn, the justices may proceed; Collyer's Cr. St. 45.
must be claimed
tion (10) and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined or confession of the fact in any of the courts below (k) (11).
At this stage of prosecution also it is, that indictments Cognizance found by the grand jury against a peer must in consequence in places of ex. of a writ of certiorari be certified and transmitted into the tion before trial. court of parliament, or into that of the lord high steward of Great Britain ; and that in places of exclusive jurisdiction, as the two universities, indictments must be delivered, upon challenge and claim of cognizance, to the courts therein established by charter, and confirmed by Act of Parliament, to be there respectively tried and determined (12).
clusive jurisdiction before trial.
(10) Certiururi is always granted of course upon the application of the crown; Rerv. Eaton, 2 T. R. 89. But not so when a defendant applies; he must lay some ground for it before the court, on affidavit; id. And now by statute 5 & 6 W. IV. c. 33, no writ of certiorari can be obtained, by any party, in any case, to remove an indictment from an inferior court into the Court of King's Bench, without motion made, and certain recognizances entered into.
(11) See ante, 320, note (6), Certiorari does not lie to remove an indict. ment for felony from the general sessions of oyer and terminer at Hicks's Hall, without the consent of the prosecutor ; Rerv. Kingston, (Duchess,) Cowp. 283. But certiorari was granted to remove an indictment from the Old Bailey, where the defendant was a public officer, and lived at Gloucester; Anon. 1 Chit. R. 571, n. So, certio.
rari lies to remove an indictment from
The attorney general, upon motion,
In a case of a conviction for murder,
And see further on this subject, I
(12) Vide ante, 278, note (36).