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OF ARRAIGNMENT AND ITS INCIDENTS.
When the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution.
To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (a) (1). The prisoner is to be called to the bar by his name; and it is laid down in our ancient books (6), that though under an indictment of the highest nature, he must be brought to the bar without irons, or any manner of shackles or bonds ; unless there be evident danger of an escape, and then he may be secured with irons. But yet in Layer's case, A. D. 1722, a difference was taken between the time of arraignment, and the time of trial; and accordingly the prisoner stood at the bar in chains during the time of his
arraignment (c) (2). [ 323] When he is brought to the bar he is called upon by name
de to hold up his hand: which though it may seem a trifling cir
cumstance, yet is of this importance, that by the holding up of his hand constat de persona, and he owns himself to be of that name by which he is called (d). However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment
which is a mode of identifying the prisoner:
will answer the purpose as well : therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient (e) (3).
Then the indictment is to be read to him distinctly in the English tongue, (which was law, even while all other proceedings were in Latin,) that he may fully understand his charge. After which it is to be demanded of him, whether he be guilty of the crime, whereof he stands indicted, or not guilty. By the old common law the accessary could not be arraigned till the principal was attainted; unless he chose it, for he might waive the benefit of the law : and therefore principal and accessary might, and may still, be arraigned, and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these cases could not be arraigned : for non constitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessary should be convicted one day, and the principal acquitted the next, which would be absurd. However, this absurdity could only happen, where it was possible that a trial of the principal might be had, subsequent to that of the accessary: and therefore the law still continues that the accessary shall not be tried, so long as the principal remains liable to be tried hereafter. But by statue *1 Ann. c. 9, if the principal be once convicted, and before attainder, that is, before he receives judgment of death or outlawry, he is delivered by pardon, the benefit of clergy, or otherwise ; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases, in which no subsequent trial can be had of the principal, the accessary may be proceeded against, as if the principal felon had been attainted; for there is no danger of future contradiction. And upon the trial of the accessary, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit
(e) Raym. 408.
(3) The ceremony of holding up the hand is not required in the case of a peer; 4 St. Tr. 211, 508 ; and it
seems that arraignments, generally, may be good without holding up the hand; Rex v. Ratcliffe, 1 W. Bl. 3.
and incident to which are,
mute, which is,
of justice (s), that the accessary is at liberty, if he can, to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law (4).
When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraingment; or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But first, let us observe these incidents to the arraignment, of
standing mute, or confession 1. Standing I. Regularly a prisoner is said to stand mute, when, being areither by the vi- raigned for treason or felony, he either, 1. Makes no answer
at all : or, 2. Answers foreign to the purpose, or with such matter as is not allowable ; and will not answer otherwise: or, 3. Upon having pleaded not guilty, refuses to put himself upon the country (g). If he says nothing, the court ought ex officio to empanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei. If the latter appears to be the case, the judges of the court, who are to be of counsel for the prisoner, and to see that he hath law and justice, shall proceed to the trial, and examine all points as if he had pleaded not guilty (h) (5). But whe(f) Foster, 365, &c.
(h) 2 Hawk. P. C. 327. (8) 2 Hal. P. C. 316.
sitation of God;
(4) The law upon this subject has been greatly altered and improved of late. See ante, 305, note (5); 133, note (19); 39, note (12); and 38, note (8). See also the 7 Geo. IV. c. 64, by sect. 9, of which, accessaries before the fact, whether in cases of felony at common law, or by virtue of any sta tute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be committed on the seas or abroad; and, if the offences be committed in different counties, may be tried in either.
By sect. 10, accessaries after the fact may be tried by any court having ju risdiction over the principal felons, as in the preceding section; and, by sect.ll,
in order that all accessaries may be convicted and punished, in cases where the principal felon is not attainted, it is enacted, that accessaries may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further as to arraignment, 1 Curw. Hawk. P. C. 434; 1 Chit. Cr. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64.
(5) By 7 & 8 Geo. IV. c. 28, $ 1, where the prisoner pleads “not guilty," without more, he shall be put on his trial by jury; and by sect. 2, if he refuses to plead, the court may order a plea of “not guilty" to be entered, and proceed as in other cases. But the latter is discretionary; and where there is any real doubt whether the refusal to
ther judgment of death can be given against such a prisoner, who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined (i).*
(i) 2 Hal. P. C. 317.
plead arises from obstinacy or inability, the court may, and will, empanel a jury to try that question. In case of insanity, this is specially provided for by the unrepealed statute of 39 & 40 Geo. III. c. 94, $ 1 of which enacts that the jury in case of any person charged with treason, &c., proving upon the trial to be insane, shall declare whether he was acquitted by them on account of insanity, and the court shall order him to be kept in custody till his Majesty's pleasure be known, and his Majesty may give an order for the safe custody of such insane person; and
of such insane person; and sect. 2 enacts, that insane persons, indicted for any offence, and found to be insane by a jury, to be empannelled on their arraignment, shall be ordered by the court to be kept in custody till his Majesty's pleasure be known. The latter section has been held to extend to cases of misdemeanor ; Rex v, Little,
R. & R. C. C. 430.
In Rer v. Roberts, Car. Cr. L. 57, a prisoner would not plead, and a jury being empannelled to try whether he stood mute by the visitation of God, his counsel claimed a right to address the jury, as this was an issue with the affirmative on the prisoner. This was allowed by Park and Abbott, Js. The prisoner's counsel addressed the jury, and called witnesses to prove he was insane. The jury found that he was so, and Park J., directed that he should be detained until his Majesty's pleasure should be known.
Where a prisoner, on being arraigned, stated that he was deaf, on which the indictment was read over to him, and he apparently did not hear it, the judge directed a jury to be empanelled to try whether he stood mute by the act of God, or out of malice; Rex v. Halton, 1 R. & M. 78.
* If a person indicted for felony stand where an act, which under ordinary mute upon his arraignment, the court circumstances would be criminal, is may direct the sheriff to return a jury committed during the prevalence of instanter, to try whether he stand mute mental derangement, the party is exobstinately, or by the visitation of God; cused in law, although, if he is of sound and if they find that he stood obsti- mind at the time of his trial, his prenately mute, sentence may be passed vious insanity is not a bar to the trial, without further inquiry; Rer v. Messier, but is merely a ground of defence. So, 1 Leach, 183.
on the other hand, if the party was A prisoner mute by the visitation of sane at the time of the act committed, God, may be arraigned, tried, sen- but was insane at the time of his artenced, and transported; Rer v. Steel, raignment, the trial must be postponed 1 Leach, 451.
until he is able to plead to the indictA prisoner, deaf and dumb from his ment, and to comprehend the nature of birth, may be arraigned for a capital the proceedings against him. offence, if intelligence can be conveyed In the case last above mentioned the to him by signs or symbols; Rer v. prisoner was placed at the bar, charged Jones, I Leach, 102.
with the wilful murder of her own illeBut the case of Rer v. Esther Dyson, gitimate infant child. It appeared that will more particularly illustrate this she was both deaf and dumb. The insubject, both as to the standing mute dictment having been read over to her, and as to the question of insanity. she was called upon to plead, but made
We have before seen (antc 24) that no reply. A jury was then sworn to
If he be found to be obstinately mute, which a prisoner hath been held to be, that hath cut out his own tongue (k), then, if it be on an indictment of high treason, it hath long been clearly settled, that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution (1). And as in this the highest crime, so also in the lowest species of felony, viz. in petit larceny, and in all misdemesnors, standing mute hath always been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the ancient law, looked upon as convicted, so as to receive judgment for the
(k) 3 Inst. 178. (1) 2 Hawk. P. C. 329; 2 Hal. P. C. 332, 317.
try whether she stood mute of malice, or by the visitation of God. Upon this issue witnesses were examined, and the jury found that she stood mute by the visitation of God. The judge then assigned the prisoner counsel, and a witness was sworn to interpret her signs truly; and she signified by signs that “ she did not do it,” upon which a plea of “not guilty" was entered for her. After a variety of attempts, no means could be found to make her understand the nature of the proceedings against her, or her right to challenge the jury. The jury were next sworn to try whether she was then sane or not, and witnesses were examined as to whether they could make her under stand the nature of the proceedings against her or not. After repeated attempts they said they could not; she could only understand natural objects and things she had seen before.
The judge then addressed the jury upon the issue. He said that the term “ insane" was to be considered as meaning not merely “idiot” or “ lunatic,” but a state of mind in which, whether from natural causes or otherwise, the prisoner was then unable to understand the nature of the proceedings against her. Lord Hale says, a deaf and dumb person is, in presumption of law an idiot ; but if he has the use of his understanding he may be tried, and suffer judgment and
execution, though great caution is to be used. The question is, whether or not the prisoner has sufficient capacity to conduct her defence with the advice and caution that she ought. If she cannot do that, she is in a worse state than any subject of this realm ought to be in when put upon trial. Upon this issue the jury found the prisoner “not now sane.”
The judge then inquired whether it was possible to instruct the prisoner so as to make her understand the nature of the proceedings at a trial. The witnesses thought that might possibly be done by teaching her to read by means of the deaf and dumb alphabet, but that at her age it would require great labour and much time. His lordship then said he would consult his learned brother in the other court (Mr. Justice Littledale), and they would determine whether the prisoner should be instructed, with a view to her being tried at a subsequent period, or delivered to his Majesty, to be detained under the provisions of the 39 & 40 Geo. III., relating to the custody of insane criminals, and the trial was thereupon respited, and the judges were of opinion that the course prescribed by the 39 & 40 Geo. III. should be pursued; Rex v. Esther Dyson, Cor. Parke, J., York, Sp. Ass. 1831 ; Matth. Dig. 410; Cro. Cir. Comp. 489.