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Exceptions to indictments.

further ; for that would be to try, although their duty is confined merely to the question, “whether there be sufficient pretence for trial.”*

The Grand Jury are sworn to inquire pro corpore comitatús, and therefore, by the common law, cannot regularly indict or present any offence, which does not arise within the county or precinct, for which they are returned.

And therefore it is a good exception to an indictment, that it doth not appear that the offence arose within such county or precinct.

And it seems agreed, as a general rule, that let the nature of the offence indicted be what it will, whether local or transitory, as seditious words, battery, &c. if it appear upon plea of not guilty, to have been committed in a different county from that in which the indictment was found, the party shall be acquitted.+ The Grand Jury, therefore, cannot regularly inquire of a fact done out of the county for which they are sworn, unless particularly enabled by act of parliament. Of these there are several, but not relating to offences which usually come before courts of quarter sessions, # being principally respecting the higher species of felonies.

But it seems by the common law, if a fact done in one county prove a nuisance to another, it may be indicted in either. Also by the common law, if one guilty of larceny in one county, carry the goods stolen into another, he may be indicted in either ;--because the possession continuing constructively in the party robbed, every moment's continuance of the trespass is as much a wrong as the first taking, and the offence is therefore complete in both. And by way of conclusion to the consideration of this particular subject, it is necessary to observe, that now it is provided by ştatute, * that accessaries before the fact to felonies generally committed within the body of a county, may be indicted and tried, either in the county where the principal felony was committed, or in that wherein the procurement, advice, or counsel, had their origin.

3 Inst. 25.–See Pract. Expos. title INDICTMENT, sect. 3, and Chitty, C. L. 317, by which recent and last-mentioned, author, the more liberal doctrine here contended for, in defiance of great names and established authorities, is completely adopted.

+ 2 Hawk.c. 25. 4 Black, Com. 303. $ 2 Hawk. c. 25.

If a person whose evidence is material to the finding of Witness a bill of indictment, refuse to go before the Grand Jury refusing to give

evidence, to give evidence, the prosecutor may procure a subpoena to compel him thereto.t

A Grand Jury must find billa vera, or ignoramus for the whole; what is now usually done by indorsing on it the words “a true bill,or “no true bill," as the fact is; and if they take upon them to find it specially, or conditionally, or to be true for one part only, and not for the rest, the whole is void, and the party cannot be tried upon it, but ought to be indicted anew.

But this rule relates only to cases where the Grand Jury take upon themselves to find part of the same indictment to be true, and part false, and do not either affirm, or deny, the fact submitted to their inquiry; but where there are two distinct counts, viz, one for riot, and the other for an 26sault, and the Grand Jury find a true bill as to the assault, and indorse ignoramus as to the riot, this finding leaves the indictment, as to the count found, just as if there had been originally only that one count;f every count containing an integral charge, and therefore having all the operation of a distinct bill.

When the proceedings of the court have arrived at this stage, the order of the arrangement for the remainder must be regulated in every case by local convenience, and that convenience will of course be influenced by the quantity of business to be transacted, and the time which will be required for its execution. Where the jurisdiction is extensive, or the business from that, or any other, cause, particularly heavy, advantage will probably be wisely taken of a recent Act of Parliament, which empowers the court of

* 43 Geo. 3. c. 113.

Cowp, R. 325.

+ 6 Term R. 295. Ante, p. 77. § 59 Geo. 3. c. 28.

quarter session to divide itself into two courts, with simultaneous cognizance of offences, and co-ordinate authority over them, in all cases wherein “it shall appear to the parties probable that the business of the session will occupy more than three days, including the day of this assembling." This power of dividing, it may be right here to observe, may, according to the second section of the act, either be exercised at each particular session, as the necessity for it shall arise; or it may be provided for prospectively for any number of sessions that may be thought convenient; and, for the effectual execution of the purposes designed by it, the sessions are authorized to call upon the clerk of the peace to appoint a deputy, and for themselves to appoint an additional cryer for such engrafted or emanant court, and to remunerate them respectively for their labours by order on the county treasurer.

To whatever extent the authority conferred by this statute be exercised, when the Grand Jury have received their instructions from the chairman, and have retired to their room, seems the proper moment for the division of the court to take place. The most natural distribution of the various subjects over which a quarter sessions of the peace now has jurisdiction, seems to be, that one division of the court should take that portion which requires the intervention of a jury, with the motions arising out of, or relating to, the commencement, the postponement, and the result of prosecution, whatever it may be ; while the other is occupied with the exercise of the summary jurisdiction given to justices by statute, whether original, or by appeal from that of individual magistrates.

101

CHAPTER IV.

OF THE PRINCIPAL CRIMINAL BUSINESS OF SESSIONS.

of Presentments, Informations, Traverses, Indictments,

Trials, &c.

THE business of a session of the peace may, conveniently enough, and without doing any unreasonable violence to grammatical precision, be divided into criminal, and civil. To the former of these divisions it is proposed to confine this chapter, viz. to those subjects which are brought before the court by Presentment, Information, or Indictment, these being the proceedings which lead to the trial by jury; and, on conviction, to punishment either personal, or pecuniary, or both; and that to be inflicted by sentence of the court. First of Presentments :

By the general highway act, * justices of assize, the Presentments. counties palatine, and of the peace, are authorized, on their own view, or upon information on oath before them by a surveyor of the highways, to make Presentment at the assizes, great sessions, or quarter sessions, of any highway, causeway, or bridge, not well and sufficiently repaired and amended, or any other offences against the provision of that statute, within the jurisdiction where the nuisance arises, and that the same shall be efficient, as if presented on oath by the grand jury. THE FORM OF A PRESENTMENT OF A JUSTICE OF THE Peace,

ACCORDING TO THE STATUTE. County of .... (to wit). } the peace of our Lord the king, held

for the said county at

in the said county, on (Tuesday) the

# 13 Geo. 3. c. 78.

... day of ...... in the said year of the reign of ... before A. B. and C. D. esqrs. and the Rev. P. Q. clerk, and others their companions, justices of our said Lord the King, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanours in the said county committed: A. B. esq. one of the justices of our said Lord the King, assigned for the purpose aforesaid, by virtue of an act made in the thirteenth year of the reign of his Majesty King George the Third, “ for the amendment and preservation of the highways,” (upon his own view), or (upon information, upon oath, to him given by C. D. surveyor of the highways for the (parish, &c.) of ......., in the said county,) doth present, that from the time whereof the memory of man is not to the contrary, there was, and yet is, a certain common and ancient king's highway leading from the town of

... in the said (county, 8c.) towards and unto .... within the same (county) used for all the king's subjects, with their horses, coaches, carts and carriages, to go, return, and pass, at their will: and that a certain part of the same king's common highway, commonly called ........ situate, lying, and being in the (parish, &c.) of ........ in the same (county) containing in length

· yards, and in breadth ... feet, on the

.... in the ...... year of the reign of and continually afterwards until the present day, was, and yet is, very ruinous, deep, broken, and in great decay, for want of due reparation and amendment, so that the subjects of the king through the same way, with their horses, coaches, carts and carriages, could not, during the time aforesaid, nor yet can, ĝo, return, or pass, as they ought and were wont to do, to the great damage and common nuisance of all the King's subjects through the same highway, going, returning, or passing, and against the peace of our said Lord the King, * and that the inhabitants of the ( parish, &c.) of ...... aforesaid in the county) aforesaid, the said common highway (so in decay) ought to repair and amend, when, and so often as it shall be necessary.

In testimony whereof, the said A, B. to these presents hath set his hand and seal the ........ day of .... in the

year aforesaid.

A, B. (L.S.)

. day of

*

The privilege These Presentments, it must be observed, do not in any of Presentment does not super

degrée supersede the right which every man has to indict sede (le right of indictment.

* This form having been prescribed by the statute itself for presentments for non repair, it need not conclude, "contrary to the statute ;" but for other puisances and offences, for which no form is prescribed by it, a Presentment must follow the usual rule, by so concluding, and must follow the words of the statute in describing the offence presented. --R. v. Winter, 13 E. R. 258.

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