Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos
Novemb. 8. 1677. I do allow the Printing and Publishing of this Book Ri. Raynsford PLEAS OF THE CROWN Or a Brief but Full ACCOUNT OF Whatsoever can be found Relating to that Subject LONDON Printed for Richard Tonson under Grays-Inn Gate next Grays-Inn Lane and Jacob Tonson at the Judge's Head in Chancery Lane near Fleetstreet 1678. THE TABLE A. APPEAL p. 146 The kinds of it p. 148 How prosecuted Ibid. Appeal per uxor and requisites p. 149 By the Heir p. 150 Of Robbery p. 152 Of Rape p. 153 The Process p. 154 The Count. ibid. Abatement of the Writ p. 155 Pleas in Barr. p. 156 Approver What. p. 158 Who may be ibid. In what Cases p. 159 Of what Offences p. 160 Appeal 191 p. 192 Approver and Appeller p. 161 Proceedings upon Trial. p. 162 After Trial. p. 163 Plaintiff in Appeal Non-suit p. 165 Time limited to perfect Appeal p. 161 Process in Appeal and Indictment p. 175 Where into County Palatine p. 176 Arraignment p. 134 Accessary who p. 135 B. BURGLARY What a Mansion-house in Case of Burglary p. 70 Where without actual breaking p. 68 Where opening an inner door p. 70 With what intent p. 71 The Indictment ibid. Where triable p. 72 Burning of a House Felony p. 75 Burning ones own house with intent to burn anothers no Felony but a great Misdemeanour p. 74 Clergy not ousted except it be a part of a Mansion-house or Barn with Corn. ibid. Burning a stack of Corn where Felony ibid. Indictment ibid. Bail Difference between Bail and Main-prize p. 83 In what cases Bail to be accepted p. 84 After Judgment p. 86 After Examination ibid. Accessaries no Bail p. 88 Bail virtute brevis ex officio p. 90 Breaking of Prison p. 94 What Prison p. 93 Breach of Peace Affray p. 113 What to be done thereupon and by whom p. 114 Bridges p. 119 C. OFfences wherein is no Corruption of Blood p. 8 Counterfeiting Coin Treason p. 18 Clipping ibid. Conviction of Felo de se where Traversable p. 25 Chance-Medley what p. 26 Commitment of a Justice of Peace how to be done p. 81 Common Inns. What persons may Erect p. 121 Refusing to entertain Indictable ib. Champerty p. 123 Coroner His power p. 141 Whether he may enquire of Rapes or breach of Prison p. 142 Where the Body cannot be seen who shall inquire ibid. His power concerning Appeals ibid. To take abjuration ibid. Clergy who shall have it who not 182 c. Where Accessary and not Principal p. 188 Concealment by Inquest p. 171 Clergy in Robbery where p. 197 No Clergy in Rape p. 200 When Clergy allowable p. 201 Challenge p. 219 D. DEodand 27 p. 28 Demurrer E. ESCAPES Voluntary Involuntary p. 75 Prison and breaking Prison what p. 76 VVho may Arrest or Imprison ibid. Per private Prison who p. 78 Per publick Officer without Process of Law p. 79 Justice of Peace where p. 80 Escape per Officer p. 97 Evidence to petty Jury p. 222 The manner p. 224 What Evidence maintains Indictment p. 225 Execution and Reprieve p. 237 F. PVnishment in Forgery p. 8 Compassing to kill the King or any of his Privy Council p. 17 Felony the kinds thereof p. 23 Felo de se p. 24 Per Infortunium p. 24 Per necessitatem ibid. VVho shall not be said Felo de se p. 25 Conviction of Felo de se traversable ibid. Felony in servants the Stat. 21 H. 8. cap. 7. To whom it extends ibid. Felonious taking quid p. 57 Felonious carrying away quid p. 52 VVhat the Goods of another p. 55 Forfeiture in petty Larceny p. 58 Manslaughter Murder Felony Treason ibid. Felony per Stat. 100 to p. 105 Forcible Entry p. 116 Forcible Detainer ibid. Restitution where and by whom p. 117 Forgery p. 123 Falsifying Attainder p. 234 Forfeiture saved p. 236 G. GOal Delivery Their Power p. 130 H. HEeresie what p. 3 The way to convict of Heresie p. 4 Homicide ex necessitate p. 28 Per Infortunium p. 26 Things observable in Homicide ex necessitate p. 31 Homicide se defendendo p. 33 Homicide voluntary p. 35 The kinds of it ibid. Highways I. INdictment of Murder where p. 45 Indictment of Robbery the form p. 61 Ingrossing Forestalling Regrating p. 123 Mault not Corn or Grain p. 123 Justices of Peace Their Power p. 136 VVhere no Jurisdiction p. 137 VVhere they must certifie Indictment in B.R. ibid. VVhere they may enquire of a Felony within the Verge p. 140 Indictments 164 Requisites ibid. Indictments in Leets and Turns p. 167 Indictments quash'd p. 172 Proof upon Indictments p. 175 Judgment in several cases p. 231 K. KING what and where p. 11 Killing what p. 45 Kings Bench Court It s Jurisdiction p. 128 L. LARCENY p. 49 Simple and mixt ibid. By whom it may be committed p. 53 Larceny complicate p. 64 M. MAnslaughter to kill a man who enters into my house claiming Title p. 33 Manslaughter 34 p. 46 Malice implied p. 47 Or expressed 36 p. 38 Murder p. 37 Executing Martial Law in time of Peace Murder p. 38 Malice continuing p. 40 Misprision of Treason p. 107 Matters of Religion Reviling Sacrament p. 125 Not coming to Church ibid. Common Prayer ibid. Consecration of Bishops p. 126 Disswading from Church ibid. Non-conformity p. 127 Sending Children into Seminaries Poenam ibid. N. NVsances p. 119 O. OYer and Terminer p. 133 The Power ibid. P. PRovocation what not p. 37 VVho shall be said present and abetting a Murder p. 42 Piracy p. 65 How Triable ibid. Perjury p. 125 Principal and Accessary 177 Accessary before p. 178 In Manslaughter no Accessary ibid. Accessaries after p. 180 Things observable in their Arraignment p. 181 Paine fort dure 184 Standing mute two kinds ibid. The Consequence p. 185 Pleas. 186 Process upon Appeals and Indictments p. 175 VVhere into County Palatine p. 176 Pleas to Felony 205 In Barr. p. 205 In Abatement p. 204 Auterfoits acquit or attaint p. 208 Pardons p. 211 Pleading the Pardon p. 213 Process vers Jury p. 216 R. RIOT p. 115 Robbery 95 p. 197 Robbery in Booths p. 199 Robbery in Dwelling-house to the value of 5 s. ibid. S. SHERIFF p. 144 His Power and Office ibid. T. PVnishment in Transportation of Sheep p. 8 High Treason 9 p. 16 VVho are capable of being Guilty of High Treason p. 10 Eldest Son of the King within the Act of Treason 25 Ed. 3. ibid. Overt act in Treason p. 12 Adhering to the Kings Enemies what p. 14 Foreign Treason how triable p. 15 Treason done in Ireland ibid. Treason upon the Sea ibid. Interpretative Treason what p. 17 Killing the Chancellor c. ibid. Counterfeiting Coin and Clipping p. 18 Refusing Oath of Allegiance upon second tender p. 20 VVho shall be said Queen within the Act 25 Ed. 3. p. 12 VVho eldest Son ibid. Petty Treason what The Act against it not taken by Equity p. 22 Misprision of Treason 107 Positive and Negative ibid.
caetero qui prisonam fregerit subeat Judicium vitae vel membrorum pro fractione prisonae nisi causa pro qua capt ' imprisonat ' fuit tale Judicium requirit And herein these things are inquirable 1. Who may Arrest or Imprison 2. What a Prison 3. What breaking a Prison 4. What cause that requires a Judgment to make this Felony 1. Who may Arrest or Imprison 1. Why a private person 2. Why a publick Officer 1. Arrests by a private person and that of two kinds 1. Either commanded or enjoyned by Law 2. Or permitted or allowed by Law Arrests commanded by Law 1. Persons present at the committing of a Felony must use their endeavours to apprehend the Offender otherwise they are to be fined and imprisoned Hence it is that if a Murder be committed in the day in a Town not inclosed the Town shall be amerced and if in a walled Town be it night or day the Town shall be amerced if Offender escape Stat. 3 H. 7.1 So it seems if one strike another dangerously though death hath not yet hapned Upon Hue and Cry well levied every man may and must arrest the Offender upon whom it is levied by Stat. Winchester and want of pursuit thereof is punishable by Fine and Imprisonment The manner of levying Hue and Cry where a Felony is committed or a dangerous stroke given is this Resort to the Constable declare the Fact describe the Party and the way he is gone who thereupon is to raise the Town be it by night or by day and to give the next Constable warning and he the rest I aid an Officer that has a lawful warrant in fait or in Law to arrest a Malefactor And in these cases it seems it is in the power of such private person to break the house if upon demand he cannot be admitted to take the Offender 4 Ins 177. Videtur sur felony fait just suspicion ascun puit arrester 3. N'est punishable licet Constable suffer luy d'escape A permissive Arrest per private person If a Felony in fact be committed and a private person suspect another upon probable cause he may be arrested though in truth innocent And these probable causes Hue and Cry levied Company with the Offender Goods in his Custody Living vagrantly Common Fame But upon such suspicion he cannot break open the door of a house but may enter the door being open The person arrested by either of these means must be brought to the Constable and if Constable be not to be found to a Justice and in case of a Felon known put into Stocks or Common Goal till he be brought to a Constable Arrest per a publick Officer without Process of Law Nota Whatsoever a private person may do in this case an Officer as a private person may do Now these Officers 1. Constable If complaint be made to a Constable of Felony committed or of a dangerous blow given though the party not dead in case there be an assault upon the Constable or in case there be any other breach of the Peace the Constable may imprison the party in the Stocks in the Goal or in his House till he can bring him before a Justice of Peace But if it be a bare breach of the Peace unless it be in his view he cannot arrest the party but complaint must be made to a Justice of Peace for the Constable is but Conservator not Justice of Peace unless a Felony be done If the Constable see an Affray and the Malefactor fly into another County before arrest he may pursue him and arrest him there and must bring him before Justice of the County where arrested But if the Escape was after arrest then he may retake him in another County and bring him to the first County He may break a door open to take an Offender where Felony committed or dangerous wound given 2. A Justice of Peace upon complaint may issue out his Warrant to arrest the party 1. A general Warrant to search for Felony or stoln Goods not good 2. If a Justice hath cause of suspicion he may arrest a common person not as a Justice 3. Upon complaint of a Felony committed and when doubt may be of apprehending the Offender in assistance of the party suspecting he may grant his Warrant to the Constable to apprehend the party but the party suspecting ought to be present because 't is his arrest But by vertue of such Warrant doors cannot be broke open 4. But at Sessions the Justices may award a Capias against the person indicted and by vertue thereof the Sheriff may break open a door A party being apprehended by such Warrant is either to be Committed Bailed or Discharged The Commitment by a Justice ought to be to Common Goal by Stat. 13 H. 6.12 and the Mittimus ought to be 1. Under Seal 2. To contain the Cause 3. To have an apt Conclusion viz. and there to stay till delivered by Law otherwise Warrant void And note That a person committed for Treason Felony or otherwise cannot be discharged till indicted and acquitted or Ignoramus found or discharged by Proclamation by Kings Bench upon Habeas Corpus In order to the consideration of Arrests and Escapes here fit to consider of Bail and Mainprise in cases of Felony 1. What Bail is 2. In what cases 3. By whom Bail 1. BAIL are Sureties taken by a person authorized to appear at a day and to answer and be justified by Law The difference between Bail and Mainprise is That Mainprise are only Surety but Bail is a Custody and therefore the Bail may reseize the Prisoner if they doubt he will fly or detain him and bring him before a Justice and the Justice ought to commit the Prisoner in discharge of the Bail or put him to find new Sureties The like may be done by the Justices in case of inefficient Bail If a Justice of Peace take inefficient Bail and the party appear not the Justice finable by Justices of Goal Delivery The sufficiency of Bail in respect of number two at least and those Subsidy men in case of Felony And in respect of the sum forty pounds at least Bail is either a certain sum or corpus pro corpore in which case the Offender not appearing the Surety shall not be Executed but Fined 29 Assis 44. 2. In what Cases 1. Generally To refuse Bail where the party ought to be bailed the party refusing the same is finable as a Misdemeanour and admitting Bail when it ought not punishable by Justices of Goal Delivery or punished as a negligent Escape at Common Law de quo infra 2. Particularly At Common Law Bail in all Cases but Homicide But now the Stat. Westm. 1. c. 15. directs what Cases bailable what not At this day in all Offences below Felony the party accused is bailable unless 1. Ousted by that Statute or some other Statute 2. After Judgment be given If a person be brought
Captains without license 2 E. 6. c. 2. idem Clergy excluded Marrying a second husband or wife the former living except 1. The man under fourteen or the wife under twelve at time of first marriage and not agreeing after first Espousals may marry a second husband or wife 2. A man or wife absent above seven years second marriage no Felony If beyond Sea then notice of life if in England then without notice 3. After a Divorce though à mensa thoro only 4. After anullity declared of second marriage by Spiritual Court Offenders have Clergy 1 Jac. c. 31. for going with a Plague sore but this discontinued Goaler compelling Prisoner through Duress to become Appelor Felony whether Appellant be acquitted or not Coining or bringing in and uttering Scotch money and 2 H. 6. c. 9. payment of blanks Offender hath Clergy Transportation of Silver or Importation of false money made Felony Offender hath Clergy Exportation of Wooll or Woolfells other than to the Staple at Calais Stealing Falcons or concealing the same after Proclamation Felony Offender hath Clergy Congregations of Masons to prevent Statutes of Labourers but this Obsolete because of the Statute 5 El. the Acts to which it relates are repealed Receiving retaining or maintaining a Jesuit or Popish Priest knowingly Clergy excluded Egyptians above fourteen years remaining here a moneth and 5 El. c. 20. takes away Clergy Felony refusing to make Abjuration and after Abjuration not to depart in some case Clergy excluded Dangerous Rogues adjudged to the Gallies and returning without license Felony but Offender hath Clergy but branded Rogue Felony and no Clergy Forging a Deed after former Conviction If a man be convict or condemned of publishing a forged Deed and after he forge a Deed this is Felony If the offence were after a former but before conviction thereof no Felony Clergy ousted Sending sheep beyond Sea after former conviction Clergy allowed Servants after decease of Master riotously spoiling Goods c. Offender shall have Clergy Servants imbezelling Goods of Master delivered to them Felony but the Statute that took away Clergy being Repealed by 1 E. 6. c. 12. they may now have Clergy Cutting Powdike Felony Offender hath Clergy Detaining persons in Cumberland against their will and giving or receiving blackmail c. Felony without Clergy Misprision of Treason NOW we come to Offences Criminal but not Capital and those of two kinds 1. Offences by Common Law 2. Offences against Statutes Offences against Common Law not Capital are either greater Offences or lesser Greater and those come under name of Misprision and those again of two sorts Negative in not doing that they ought or of Omission Positive in doing some great Misdemeanour they ought not The Negative Misprision 1. Misprision of Treason All Treason includes Misprision and Concealing of any Treason is declared Misprision only by Statute 1 2 P. M. c. 10. But this in case of bare knowledge and assent it is Treason and though Treason by Statute yet the concealing thereof is Misprision of Treason Every man therefore that knoweth Treason must with all speed reveal it to King his Privy Council or Magistrate He that receives and comforts a Traitor knowingly be it a counterfeiter of Coin or other is a Principal Traitor and not only guilty of Misprision Abingdon's Case against Opinion in Dyer 296. Conier's Case The Judgment in case of Misprision of Treason is Imprisonment during life forfeiture of Goods forfeiture of profits of Land during life 2. Misprision of Felony is either by Common Law or by Statute By the Common Law a concealment of Felony or procurement of the concealing thereof The Punishment 1. A common Person Fine and Imprisonment 2. An Officer as Sheriff Coroner Imprisonment for a year and Ransom at King's pleasure by Stat. W. 1. c. 9. By the Stat. 3 H. 7. c. 1. 33 H. 8. c. 6. one knowing of an unlawful Assembly and not discovering it within 24 hours Concealment of Jurors v. Stat. 3. Theft-boot which is more than a bare Misprision of Felony and is where the Owner doth not only know the Felony but takes his Goods again or other Amends not to Prosecute But taking the Goods barely no-offence unless he favour the Thief The punishment hereof is Ransom and Imprisonment Misprision Positive or of Commission 1. Discovery by one of the grand Inquest of the person Indicted or by Evidence against them Misprision punishable by Fine and Imprisonment but no Felony 2. A person disswading Witnesses from bringing in Evidence against a person is no Accessary but a great Misprision punishable by Fine and Imprisonment 3. Rescuing a Prisoner from Barr of B. R. Canc. B. C. or Exchequer a Misprision for which a party shall lose his Hand Goods Profits of Lands during Life perpetual Imprisonment 4. If a man strike sitting the Courts at Westminster in presence of Courts like Judgment 5. If in presence of those Courts or before Justices of Assize or Oyer Terminer a person draws his Sword upon any Judge or Justice though he strikes not or strike another like Judgment 6. Per Stat. 33 H. 8. c. 12. striking in the King's presence drawing blood loss of hand perpetual Imprisonment Fine and Ransom 7. By St. 14 El. c. 3. forging of Money not current Misprision of Treason 8. Stranger uttering false Money made within this Realm known to be Counterfeit 3 H. 7.10 9. A Lord of Parliament departing from Parliament 3 E. 3. And hither we may refer Maihem which though it be a particular Crime for which Appeal lieth yet it is not Felony of death Cutting off the hand or striking out a tooth Maihem but not cutting off the ear The Judgment is only Fine Dammages and therefore if recovery in Trespass it is a good barr in Appeal of Mayhem Offences of an Inferiour nature are either such as are committed by an Officers neglect of duty as Bribery Extorsion Or such as refer to a common person without relation to Officers and those reducible to three kinds 1. Breaches of publick Peace and therein 1. Of Affrays 2. Of Riots 3. Of Forcible Entries 4. Barretries 5. Riding armed 2. Deceipts and Cozenage 3. Nusances Decay of Bridges Decay of High-ways Inns and Alehouses Breach of the Peace AFFRAY If weapon drawn or stroke given or offered but words no Affray menace to kill or beat no Affrays but yet for safeguard of Peace Constable may bring them before Justice In Affrays considerable 1. What a private man may do Private persons may stay Affrayers till heat over and deliver them to Constable If a person hurt another dangerously private person may arrest the Offender and bring him to Goal or next Justice 2. What by a Constable 1. Affray in presence of a Constable he ought to do his endeavour to suppress it otherwise finable 2. If an Affrayer fly to a house or if
Statute limitted to be heard before Justices of the Peace they may proceed at Sessions and consequently may bind over Informers and certifie Examinations at Sessions But such Felonies by Statute as are specially limitted to Justices of Oyer and Terminer or other Justices and not to them the Justices of Peace cannot proceed to take Indictments as upon Stat. 3 H. 7. c. 18. for contriving to destroy the King c. upon Stat. 33 H. 8. 12. Murderers in Kings Palace upon Stat. 18 H. 6. c. 12. of razing or imbezelling Records upon Stat. 13 H. 6. c. 1. secret imbezelling goods upon St. 2 3 Ed. 6. c. 24. striking in one City and dying in another City But in former cases it seems they may take Examinations and commit the Offenders and bind over Prosecutors If any Indictment be taken before Justices of Oyer and Terminer Goal Delivery or Coroner they cannot proceed upon them but upon Indictments taken before Sheriff in his Turn they may proceed by St. 1 E. 4. c. 2. In cases of Treason Misprision of Treason Premunire regularly Justices of Peace have no Jurisdiction yet two things may be done 1. In any case of Treason because 't is a breach of the Peace they may upon complaint imprison Offenders take Examinations bind Prosecutors over and certifie their proceedings into Kings Bench or Goal Delivery 2. In some cases they are enabled to take Indictments but not hear and determine the same but certifie the same into Kings Bench upon Stat. of 5 23 El. c. 1. 1. 1. The Maintainer of the Authority of the Sea of Rome 2. Obtaining Bulls c. 3. Withdrawing from Allegiance 4. Bringing in Agnus Dei A person brings one before Justice suspected of Felony and refuses to be bound to prosecute may be committed if it appear he can testifie materially They may Enquire of any Felony within the County though within the Verge 4 R. Wigg's Case Coroner CORONER Hath power in three Cases 1. To take Indictment of Death but this he can only do super visum corporis otherwise void Hence 1. If Body be interred before he comes the Township amerced and he must digg up the Body so if Township suffer Body to lie long to Putrefaction without sending for Coroner The like of one lying in Prison 2. If Coroner be remiss and comes not when sent for he shall be fined and imprisoned 3. He may enquire of flight and such Presentment not Traversable 4. If Body cannot be seen Justice of Peace may enquire thereof Nota The Record of the Coroner of great Authority if he Record a Confession of a Felony by Approver or a Confession of breach of Prison or an Abjuration it shall not be Traversed And it seems by some he hath power to enquire of Rapes breach of Prison He hath Jurisdiction upon Arms of the Sea where a man may see from side to side 2. Concerning Appeals Coroner together with Sheriff hath power in County Court to receive Appeals of Robberies and other Felonies but then it must be of a Felony in the same County Upon this Appeal they may grant Process till Outlary but it seems they cannot send an Exigent because prohibited by St. 6 M. c. 17. Such Appeal may be by Bill and it may be removed into Kings Bench by Certiorari but it must issue both to Sheriff and Coroner It appears By St. 3 H. 7. c. 1. That an Appeal of Murder by Bill lies before Sheriff and Coroner 3. The Coroner alone may take the Appeal of an Approver of a Felony in any County But then he cannot make Process thereupon but enter it in his Roll and send it to the Justices of Goal Delivery who thereupon may issue their Process to the Sheriff of the foreign County to take the Appellor 4. To take the Abjuration of him that acknowledges a Felony done in the same County or any other And note That though more Coroners than one in any County yet any one may execute any of the powers before But the Presentment of him that is first taken stands Abjuration dit esse toll oue Sanctuary per 21 Jac. Sheriff THE power of the Sheriff to take Indictments was either Virtute Commissionis or Officii which are taken away per Stat. 28 E. 3. c. 9. His Power and Office in the Turns 1. His Turn must be held infra mensem Paschae Michaelis otherwise the Indictments there are void per St. 31 E. 3. c. 15. 2. Indictments must be under Seal of the Jury by Stat. of West 2. c. 13. indented per Stat. 1 E. 3. c. 17. and the same for Lord of Franchises 3. Indictors must be of good name having 20 s. Freehold or 26 s. 8 d. Copyhold otherwise Sheriff punishable by Stat. 1 R. 3. c. 4. 4. The Turn can take no Indictment but of that which is Felony by Common Law or of such matters as are particularly by Act of Parliament limited to them and therefore an Indictment of Escape void there 5. Upon any Indictment of Felony before Sheriff in his Turn they can make out no Process but must remand them to Justices of Peace who have power to proceed thereupon as if taken before themselves by St. 1 E. 4. c. 2 The Court-Leet in effect hath the same Jurisdiction with the Turn but Presentments of Felony before them are to be sent before Justices of Goal Delivery 3 H. 4.18 Appeal HAving considered the Courts of Justice now we come to consider the way of bringing Capital Offenders to Trial and that is Regularly by one of these 3 ways Appeal Approver Indictment And herein some things are proper to each proceeding some things are common to them all which come to be considered after particulars proper to either dispatched viz. Process Arraignment and therein of Principal and Accessary Demeanour of the Party Arraigned Standing Mute Confessing Pleading and Pleas. Declinatory Sanctuary Clergy In Barr Pardon Auterfoits Acquit Anterfoits Convict To the Felony Trial per Battel per Jury And therein Process against Jury Challenge Verdict Per Peers in case of Nobility Judgment in the several Cases Capital Execution Reprieve Falsifier Per Errour Per Plea Appeal Appeals in respect of the manner of proceeding are of two kinds By Writ By Bill Touching Appeals by Bill they may be prosecuted 1. In the King's Bench against any that is in custod ' Marr ' or let to Bail They are Sovereign Coroners 2. In the Court before Commissioners of Goal Delivery against a Prisoner or one let to Bail but not to one let to Mainprize But if one of Appellees absent remove in B. R. by Certiorari 3. By some before Justices of Peace quod Quaere 44 E. 3. Coron 95. 4. Before Sheriff and Coroner as before and it may be removed by Certiorari in B. R. 3 H. 7. c. 1. 5. Before Constable and Marshal of a Felony done out of the Realm 1 H. 4. c. 14. Appeals are in matter 1.
per 5 6 E. 6. c. 9. in cases where Offenders found guilty Principals therefore in other cases shall have Clergy as standing mute challenge ultra twenty Accessaries oust per Stat. 4 5 Ph. Ma. c. 4. 4. Robbery to the value of 5 s. out of any Dwelling-house or Out-house thereunto belonging though none in the house per Stat. 39 El. Principal oust of Clergy in case of Conviction not of standing Mute Accessaries shall have Clergy 5. Larceny without any of these Circumstances Horse-stealing oust of Clergy per 1 E. 6. c. 12.2 3 E. 6. c. 32. Principal oust of Clergy Accessaries ousted in no cases 31 El. 12. oust Clergy d'Accessary But other Larceny not being Robbery or Cutpurse have Clergy 6. In Rape Clergy oust per St. 18 El. c. 7. 7. Though the Offence were within Clergy yet if he had formerly been Convict and burnt in the Hand the Stat. of 4 H. 7. c. 13. ousts of Clergy unless he were a person in Orders and then he must produce his Certificate presently or by a time prefixt And see the Stat. 34 35 H. 8. c. 14. for the manner of the Certificate of such Conviction and Attainder And though Stat. of 32 H. 8. c. hath put men in Orders in the same condition with others in reference to Clergy yet as to this point the Stat. 4 H. 7. the clause of the Statute 1 E. 6. c. 12. doth give a person in Orders his Clergy the second time in all cases but 1. challenge above twenty 2. Outlary 3. When Clergy shall be allowed Now the use is not to put party to challenge Clergy till he hath pleaded and Inquest thereupon taken 1. For advantage of party if acquitted 2. For advantage to King for forfeiture if Convict 2. It may be allowed in Discretion though party challenge not Allowed under Gallows or where Judgment pain fort dure given or where challenge above twenty vid. Cr. Jur ' 12 pag. Allow south Gallows per Just B. R. mesne Goal Delivery mes puit apres Judgment devant adjournment Dy. 205. 4. The Judge The Ordinary is but Minister the Judge at Common Law is the Judge when and where to allow of Reading In ancient time the Consequent was delivery to Ordinary either to make Purgation or absque Purgatione as case required But by Stat. 18 El. c. 7. now only burnt in the Hand which hath these effects 1. Enables Judge to deliver him out of Prison but yet if he see cause he may detain him till he find Sureties of good behaviour per Stat. 3 H. 5. c. 1. If Clergy within year he is to be bailed or committed at discretion till year be past 2. It gives him a Capacity to purchase Goods and retain the profits of his Lands But the Goods he had at time of Conviction are forfeit 3. It restores him to his Credit Hob. Rep. Searle's Case Pleas to Felony DEMURRER 2. Pleas in Abatement and Baâ— 3. General Issue 1. For Demurrers It amounts to a Confession of thâ— Indictment as laid therefore if Indictment good Judgment against Prisoner and Execution 2. For Pleas in Abatement If Prisoner plead Misnomer of his Surname unto an Appeal it goes in Abatement but in case of Indictment he shall be put to answer the Treason or Felony But Misnosmer of the Christian Name goes in Abatement and if it be confessed by King's Attorney as found Indictment falls 11 H. 4. Coron 88. But then he must give his true Name and by that Name he may be forthwith Indicted Pleas in Barr. Auterfoits Acquit If a person be acquit upon an insufficient Indictment or Appeal yet upon a new Indictment he may be Arraigned upon the same Felony 4 R. Vaux's Case 2. Auterfoits acquit for the same Felony no Barr to an Indictment or Appeal of another Felony c. though committed before Acquittal 3. Auterfoits acquit as Principal no Barr to an Indictment against him as Accessary to the same Felony after but it seems he cannot be Indicted as Accessary before 4. In an Appeal of Death or other Felony Auterfoits acquit upon an Indictment for the same Felony was a good Barr in all Cases therefore if an Appeal was pending Court would cease Arraignment of Prisoner upon an Indictment till it was determined Or though no Appeal pending yet in case of death would surcease till year past But at this day Auterfoits acquit in an Indictment of Death no Barr to an Appeal per Stat. 3. H. 7. c. 1. for the Prisoner notwithstanding the Acquittal but in other Appeals that stands Barr to an Appeal 5. But Auterfoits acquit in an Appeal Barr to an Indictment of same Felony 1. Unless Appeal be Erroneous in Substance 2. Unless Appeal be by a wrong Person 3. Appeal be by Battel and in these cases he may be Indicted again 6. He that pleads this Plea need not have Record in poigne because it goes in Barr. 7. Though there be variance between Indictment c. if it be such as may admit of an Averment there it may be pleaded Variance in the Name if Conus per un name auter variance in day of Felony supposed to be committed Variance in the place but by Opinion 4 H. 5. acquit of Larceny in one County no Barr in another Auterfoits Convict or Attaint 1. Where a Barr to the same Felony 1. Auterfoits attaint a Barr to an Indictment for the Effect is to obtain the death of the party but vid. no Barr in Appeals C.P.C. 213. 2. Auterfoits convict by Verdict or Confession of Manslaughter in an Indictment and had Clergy Barr in Appeal though it be of Murder forfeit the same in both though differ in degree 2. Where a Barr to an Arraignment for another Offence 1. Auterfoits attaint of Felony no Barr to Arraign him of Treason committed before Felony for King's Interest And it seems if Treason was committed after Felony then he shall be Arraigned of the Treason for the Offence is different 2. Auterfoits attaint of one Felony barr to an Arraignment of Felony but this hath these Exceptions 1. Where the first Attainder is pardoned there he must be Arraigned of the former Felony though omitted before 2. In case of Appeal he shall be Arraigned at every one of their Suits notwithstanding he be Attainted at one Suit The like it seems upon Indictment of Robbery because per Stat. party is to have restitution 3. Auterfoits convict and had Clergy after Stat. 25 E. 3. c. 5. had been a barr to an Arraignment of another Felony though not within Clergy Dy. 214. But now per Stat. 8 El. c. 4. after Purgation and 18 El. c. 7. burning in the Hand he shall be put to answer former Felonies not within Clergy And note he that pleads a Plea in barr to an Indictment or Appeal that confesseth not the Felony shall plead over to the Felony otherwise if it confesseth Felony as Pardon or Release