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CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

Of arraignment:

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 which is a mode of identifying

to hold up his hand : which though it may seem a trifling cirthe prisoner:

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

(a) 2 Hal. P. C. 216.

(b) Bract. l. 3, de Coron. c. 18, $ 3; Mirr. c. 5, sect. 1, § 54; Flet. 1. 1, c. 31, § 1; Brit. c. 5; Staundf.

P. C. 78; 3 Inst. 34; Kel. 10; 2 Hal.
P. C. 219; 2 Hawk. P. C. 308.

(c) State Trials, vi. 230.
(d) 2 Hal. P. C. 219.

(1) This word in Latin (Lord Hale says) is no other than ad rationem ponere, and in French ad reson, or abbreviated a resn; 2 H. P. C. 216.–CH.

(2) In Waite's case, Leach, 34, it

was held, that the court has no authority to release the prisoner from his irons, till he has pleaded, and the jury are charged to try him.

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.

[ 324]

(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.

which are,

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). and incident to 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

mute, which is,

(h) 2 Hawk. P. C. 327.

(s) Foster, 365, &c.
(8) 2 Hal. P. C. 316.

(4) The law upon this subject has in order that all accessaries may be been greatly altered and improved of convicted and punished, in cases where late. See ante, 305, note (5); 133, the principal felon is not attainted, it is note (19); 39, note (12); and 38, note enacted, that accessaries may be pro(8). See also the 7 Geo. IV. c. 64, secuted after the conviction of the prinby sect. 9, of which, accessaries before cipal felon, though the principal felon the fact, whether in cases of felony at be not attainted. See further as to common law, or by virtue of any sta- arraignment, 1 Curw. Hawk. P. C. tute or statutes made or to be made, 434; 1 Chit. Cr. L. 414. The statute may be tried as such, or as for sub- mentioned in the text is repealed by the stantive felonies, by any court having statute 7 Geo. IV. c. 64. jurisdiction to try the principal felons, (5) By 7 & 8 Geo. IV. c. 28, § 1, although the offences be committed on where the prisoner pleads “not guilty," the seas or abroad; and, if the offences without more, he shall be put on his be committed in different counties, may trial by jury; and by sect. 2, if he rebe tried in either.

fuses to plead, the court may order a By sect. 10, accessaries after the fact plea of “not guilty" to be entered, and may be tried by any court having ju- proceed as in other cases. But the risdiction over the principal felons, as latter is discretionary; and where there in the preceding section; and, by sect.]], is any real doubt whether the refusal to

ther judgment of death can be given against such a "prisoner, [*325] 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, R. & R. C. C. 430.
the court may, and will, empanel a jury In Rex v. Roberts, Car. Cr. L. 57,
to try that question. In case of in- a prisoner would not plead, and a jury
sanity, this is specially provided for by being empannelled to try whether he
the unrepealed statute of 39 & 40 stood mute by the visitation of God, his
Geo. III. c. 94, § 1 of which enacts counsel claimed a right to address the
that the jury in case of any person jury, as this was an issue with the affir-
charged with treason,&c., proving upon mative on the prisoner. This was al-
the trial to be insane, shall declare whe- lowed by Park and Abbott, Js. The
ther he was acquitted by them on ac- prisoner's counsel addressed the jury,
count of insanity, and the court shall and called witnesses to prove he was
order him to be kept in custody till his insane. The jury found that he was so,
Majesty's pleasure be known, and his and Park J., directed that he should be
Majesty may give an order for the safe detained until his Majesty's pleasure
custody of such insane person; and should be known.
sect. 2 enacts, that insane persons, in- Where a prisoner, on being ar-
dicted for any offence, and found to be raigned, stated that he was deaf, on
insane by a jury, to be empannelled on

which the indictment was read over to their arraignment, shall be ordered by him, and he apparently did not hear it, the court to be kept in custody till his the judge directed a jury to be empaMajesty's pleasure be known. The nelled to try whether he stood mute by latter section has been held to extend the act of God, or out of malice; Rex to cases of misdemeanor; Rex v, Little, 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, 45).

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 Rerv. 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 scen (antc 24) that no reply. A jury was then sworn to

or obstinately

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 (). 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, execution, though great caution is to
or by the visitation of God. Upon this be used. The question is, whether or
issue witnesses were examined, and not the prisoner has sufficient capacity
the jury found that she stood mute by to conduct her defence with the advice
the visitation of God. The judge then and caution that she ought. If she
assigned the prisoner counsel, and a cannot do that, she is in a worse state
witness was sworn to interpret her than any subject of this realm ought to
signs truly; and she signified by signs be in when put upon trial. Upon this
that “ she did not do it," upon which issue the jury found the prisoner " not
a plea of “not guilty” was entered for now sane."
her. After a variety of attempts, no The judge then inquired whether it
means could be found to make her un- was possible to instruct the prisoner
derstand the nature of the proceedings so as to make her understand the na-
against her, or her right to challenge ture of the proceedings at a trial. The
the jury. The jury were next sworn witnesses thought that might possibly
to try whether she was then sane or be done by teaching her to read by
not, and witnesses were examined as to means of the deaf and dumb alphabet,
whether they could make her under- but that at her age it would require
stand the nature of the proceedings great labour and much time. His
against her or not. After repeated lordship then said he would consult
attempts they said they could not ; his learned brother in the other court
she could only understand natural ob- (Mr. Justice Littledale), and they
jects and things she had seen before. would determine whether the prisoner

The judge then addressed the jury should be instructed, with a view to upon the issue.

He said that the her being tried at a subsequent period, term “ insane” was to be considered or delivered to his Majesty, to be deas meaning not merely “idiot” or tained under the provisions of the 39 “ lunatic," but a state of mind in & 40 Geo. III., relating to the custody which, whether from natural causes or of insane criminals, and the trial was otherwise, the prisoner was then un- thereupon respited, and the judges able to understand the nature of the were of opinion that the course preproceedings against her. Lord Hale

scribed by the 39 & 40 Geo. III. says, a deaf and dumb person is, in should be pursued; Rex v. Esther presumption of law an idiot ; but if Dyson, Cor. Parke, J., York, Sp. he has the use of his understanding he Ass. 1831 ; Matth. Dig. 410; Cro. may be tried, and suffer judgment and Cir. Comp. 489.

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