Process, when it issues. Warrant issued by a magistrate. CHAPTER VIII. PROCESS. THE grand jury have found a true bill. The next point to be considered is the process (the writs or judicial means) issued, or made to proceed, to compel the attendance of the accused to answer the charge. Of course this is not required if he is in custody or surrenders to his bail; in such case he may be tried as soon as is convenient. If he is in custody of another court for some other offence, the course is to remove him by a writ of habeas corpus, and bring him up to plead. But if he is already in the custody of the same court, there is no need for such writ (a). If, however, an indictment has been found in the absence of the accused, he having fled or secreted himself so as to avoid the warrant of arrest, or has not been bound over to appear at the assizes or sessions, then process must issue to bring him into court. It is contrary to the policy and humanity of the English law to try an indictment in the absence of the accused (b). Process in ordinary cases is now regulated by 11 & 12 Vict. c. 42, s. 3. When an indictment has been found at the assizes or sessions against some person who is at large, the clerk of indictments, or clerk of the peace, after such assizes or sessions, upon the application of the prosecutor or any person on his (a) 30 & 31 Vict. c. 35, s. 10. (b) But v. p. 361. behalf, will grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the jurisdiction where the offence is alleged to have been committed, or in which the accused resides, or is, or is suspected of residing or being, such justice may and must issue his warrant to apprehend the person so indicted and bring him before some justice of the jurisdiction, who, upon proof by oath that the person present is the person indicted, will, without further inquiry or examination, commit him for trial or admit him to bail (c). Provision is also made for the backing of such warrant if the accused is out of the above jurisdiction (d). If he is already in prison, the justice must issue his warrant to the gaoler ordering him to detain him until removed by habeas corpus or otherwise in due course of law (e). Another mode of proceeding is, for the court before Bench warrant. whom the indictment is found to issue a bench warrant for the arrest of the accused, and to bring him immediately before such court. At the assizes it is signed by the judge, at sessions by two justices of the peace. Any judge of the Queen's Bench Division, upon affidavit or certificate that an indictment has been found, or information filed in that court, may issue his warrant for apprehending and holding the accused to bail; and in default of bail he may commit him to prison (f). In cases not provided for as above, the following are Process in the steps. In misdemeanors, when the indictment is other cases. found, a writ of venire facias ad respondendum (which may be issued by the Queen's Bench Division, a judge of assize, or a court of quarter sessions) is issued, its (c) 11 & 12 Vict. c. 42, s. 3. (d) Ibid. s. 11. (e) Ibid. s. 3. (f) 48 Geo. 3, c. 58, s. 1. Outlawry, in misde meanors, in felonies. nature being a summons to cause the party to appear. If he makes default in appearing to answer to this writ, a writ of distringas may be issued from time to time. If he still fails to appear, and the sheriff makes return that he has no lands, a writ of capias ad respondendum, commanding the sheriff to take his body to answer the charge, may be issued; and if he is not taken upon the first capias, a second and a third, termed an alias and a pluries, may issue. Upon an indictment for felony a capias may issue in the first instance. If none of these modes of summary process are effectual, the accused is liable to outlawry, the consequences differing according as the charge is one of misdemeanor or of felony. First, in the case of misdemeanors.—The proceedings are by venire facias, distringas, capias, alias capias, pluries capias, as above. If none of these measures accomplish their object, a writ of exigent is awarded, by which the sheriff is required to proclaim or exact the defendant, and call him five successive county court days, charging him to appear upon pain of outlawry. The defendant still not appearing, on the fifth county court day judgment of outlawry is pronounced by one of the coroners for the county. The judgment of outlawry in misdemeanors operates as a conviction of the contempt for not answering (g). In felonies (including treason) the proceedings are more summary, though they are followed by graver consequences. The first process is a capias, and the other proceedings ensue as above. The outlawry amounts to a conviction or attainder of the offence charged in the indictment, as if the defendant had been found guilty by a jury. Formerly, an outlawed (g) Arch. 89. felon was considered as literally out of the pale of the law, and might be killed by any one; but now, of course, it would be murder, unless the killing were caused in an endeavour to apprehend him. Any one may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to give him up to the law (h). The general consequences of outlawry, both in Consequences felonies and misdemeanors, are the following:-The of outlawry. person outlawed is civiliter mortuus. His goods are forfeited from the exigent, his lands from the outlawry, and the Act abolishing forfeiture in general does not. interfere with this (). He cannot hold property given or left to him. He cannot sue on his own contract, nor can he sue for the redress of any injury. He may be a witness, but cannot be a juror (j). As to the reversal of the outlawry.-If there has Reversal of been any mistake or omission in the proceedings, or outlawry. for other cause- for example, if the defendant was in prison-the accused may have the benefit of this. In cases of felony he must render himself into custody and pay the allowance of the writ of error in person; if it be reversed, he must still meet the indictment. In other cases he may appear by attorney (k). Process on informations is similar to that on indict- Process on ments. But the first process is by writ of subpoena, informations. instead of venire; and then, if this is not effectual, a capias. But if it is necessary to proceed to outlawry, the first process is by venire facias (as in an indictment for misdemeanor), and not by subpoena (1). (h) 4 Bl. 319. (i) 33 & 34 Vict. c. 23, s. 1. (j) v. Bac. Abr. (k) & 5 Wm. 3, c. 18. v. Solomon v. Graham, 5 Ell. & Bl. 320. () v. 1 Chit. Cr. L. 865. |