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 (b) (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. (2) But see the case of Rex v. Yandall, 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 VOL. IV. (b) 2 Hal. P. C. 195. 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 I Chit. Cr. L. 339, and the authorities there collected on this subject. Outlawry, in treason or felony is tanta mount to con be reversed by writ of error, and the party be let in to plead to an indictment. [*320] 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 formerly been observed (e): so that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him (f); 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 (g), 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. (f) Mirr. c. 4, § 4. Co. Litt. 128. (4) See 2 Rol. Abr. 306, pl. 40; Co. Litt. 128, b.; Rex v. Earler, Fort. 40; Rex v. 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 utlagaria; 2 Hale, P. C. 205. When the defendant is outlawed, a writ of capias 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). may be re tiorari into the court of king's bench at any 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 certhat writs of certiorari facias are usually had, though they 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 Bench (7); which is the sovereign ordinary court of justice in certiorari may to the prosecu tor or the defendant. (5) Outlawry may be avoided or reversed at any time, from the very earliest stages of the process, even until the defendant has been taken upon the cupias utlagatum. Nor is there any difference in this respect between civil and criminal cases; and it seems to be considered that the proceedings in outlawry generally, whether in indictments for felony, or in civil actions, have always been, and ought to be, regulated by the same rules: see Bryan v. Wagstaffe, 8 D. & R. 208; 5 B. & C. 314. Therefore, it will be error, in criminal as well as civil cases, if the person outlawed was, at the time that outlawry was pronounced, within the age of discretion, that is, under the age of fourteen; Com. Dig. Utlagary (C. 1); or, if at the time the exigent was awarded, he was in prison, Litt. § 437; or out of the realm; O'Kearney's case, Skinner, 16. Nor will the circumstance of his departure, if before exigent awarded, for the express purpose of avoiding the consequences of the indictment, be a sufficient ground for preventing the reversal of an outlawry; Bryan v. Wagstaffe, 8 D. & R. 208; 5. B. & C. 314. Every outlawry determines upon the death of the party outlawed; see Tidd, 145. Therefore, in cases of felony, below the degree of treason or murder, a reversal of the outlawry by the heir for the death of his ancestor, will be followed by restitution of the forfeited lands. As to what shall be sufficient evidence of the death of the ancestor, see Tidd, 146. Since the passing of the 7 Geo. IV. c. 64, § 9, the exigent against an accessary need not be stayed until outlawry of the principal; Collyer's Cr. St. 520. See generally upon this subject, id. Process, 511, 522; Tidd, Outlawry, 128, 146; Harrison's Dig. Outlawry, 1545; 1 Chit. Cr. L. Process, 347, 370; and the numerous cases there respectively collected. (6) It seems that, strictly speaking, certiorari lies till judgment is given, and even after judgment, in cases where a writ of error does not lie; but that, in practice, it is seldom granted to remove an indictment after a conviction, unless for some special cause; and chiefly where no remedy is to be had by writ of error; see Collyer's Cr. St. 45, and the cases there collected. (7) For the definition and history of the writ of certiorari, see Fitz. N. B. 554. As the court of King's Bench has a general superintendence over all other courts of criminal jurisdiction, so it may award a certiorari to remove proceedings from them, unless they are expressly exempted from such superintendence by the statutes creating them; 2 Hawk. P. C. 286; Rex v. Young, 2 T. R. 473; Rex v. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express 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 bar 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 [*321] 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 (8) The court of King's Bench re- 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 Rex v. Thomas, 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. 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). must be claimed 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 exclusive jurisdicof 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). (k) 2 Hawk. P. C. 287; 4 Burr. 749. (10) Certiorari is always granted of course upon the application of the crown; Rex v. 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; Rex v. 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, 1 (12) Vide ante, 278, note (36). |