After the evidence has been gone into, if a majority (at least twelve) of the grand jury consider the charge sufficiently proved, the clerk of The grand jury will indorse on the indictment "a true bill;" but, if hey consider otherwise, he will indorse on it "no true bill," or, "not ound." It seems to be generally agreed, that the grand jury may not find part f an indictment to be true, and part false; but must either find a true ill, or ignoramus for the whole; and if they take upon them to find it ecially, or conditionally, or to be true for part only, and not for the rest, he whole is void, and the party cannot be tried upon it, but ought to be dicted anew. (2 Hawk. c. 25, s. 2). But where there are two counts the indictment, as one for a riot, another for an assault; the same may e considered as two distinct indictments; and the jury may affirm the ill as to one of the counts, and reject it as to the other. (R. v. Fielduse, 1 Corp. 325). And where a bill is presented for murder, the and jury may find a true bill for manslaughter only. (Per Garrow, at Staff. Sum. Ass. 1822; R. v. Caulkin, MS., 3 Burn's J., 24th edit., id see further, 1 Chit. C. L. 322). After the bill has been found, the foreman of the grand jury, accomied by the other grand jurors, carries the indictment into Court and ivers it with the rest of the indictments preferred before them to the rk of the arraigns, or clerk of the peace, who thereupon states to the urt the substance of each, and the indorsement upon it. n all cases, to give the grand jury jurisdiction, and render their prolings valid, they must be all duly qualified and sworn, &c. (See, as his, post, tit. "Jurors (Grand).") 12. Quashing indictment. Finding of. indictment. the bill be not found, or, if the indictment be defective, a new and Preferring a fresh regular one may be framed, and sent to the same or another grand for their finding. (4 Bla. Com. 305; Bac. Ab. Indictment, (D 2)). thus, after the finding of a bill for murder, when the facts amount tit treason, the Crown may procure the indictment to be quashed, prefer another for the petit treason. (Fost. 104, 106). The mere iniency, therefore, of the finding affords no future indemnity to the indicted. (1 Chit. C. L. 325). though the grand jury have been formally discharged, yet, if they not left the precincts of the Court nor separated, they may be reand charged with other bills. (Reg. v. Holloway, 9 Č. & P. 43). XII. Quashing an Endictment. en the indictment or the caption is defective, the Court have a When indictment tionary power to quash it immediately, or to oblige the defendant may be quashed. ad or demur, which rests entirely with the Court. (R. v. Wheatly, r. 1127; 2 Hawk. c. 25, s. 146; 4 Burr. 2539). They exercised ower in a recent case where an indictment for forgery was found quarter sessions. (R. v. Rigby, 8 C. & P. 770). The defect must inly obvious on the face of the indictment to induce the Court to re. They will not do so where there is a particle of doubt. (See Burnby, 13 Law J., Mag. Cases, 29). prosecutor. en the application is made by the prosecutor, the Court will not on application of the indictment as a matter of course, unless it appear to be clearly cient; (R. v. Stratton, Dougl. 240); nor even then, after the det has pleaded, unless another good indictment has been found t him; (R. v. Dr. Wynn, 2 East, Rep. 226; 1 Leach, 11; Goddard th, 6 Mod. 262); nor where he has been put to extra expense, unle costs are first paid by him. (R. v. Webb, 3 Burr. 1469; R. v. ,2 Stra. 946; 2 Kely, 103, S. C.) But where the indictment is cient, and the defendant is not put to inconvenience, the Court will 12. Quashing indictment. On application of defendant. Fresh indictment. Jury may be dis quash it upon the motion of the prosecutor, without the consent of the defendant, though it is for a crime, in which they never shew the same indulgence upon the application of a prisoner. (2 Sess. Cas. 19; R. v. Dr. Wynn, 2 East, 226, 227). After judgment in demurrer an indictment cannot be quashed at the instance of the prosecutor. (Reg. v. Smith, 2 M. & Rob. 109). When the application is made on the part of the defendant, the rules by which the Court are guided are more strict, and their objections are more numerous, because, if the indictment be quashed, the recognizances will become ineffectual; (2 Cess. Cas. 1); and the Courts usually refuse to quash on the application of the defendant when the indictment is for a serious offence, unless upon the clearest and plainest ground, but will drive the party to a demurrer or motion in arrest of judgment or writ of error. (Cald. 432, 554; Nolan, P. L. 261; 1 Chit. C. L. 300). And where two indictments against the same defendant, the one for misde meanour, the other for felony, had been removed into the Court of Queen's Bench. The Court refused to quash them upon an affidavit, stating, that they both related to the same transaction. (Reg. v. Stocking, 2 Gale & D. 728; 3 Ad. & E., N. S., 238). The application to quash an indictment is made to the Court where the bill is found; except in cases of indictments at sessions, or in other inferior courts, in which cases the application is made to the Court of Queen's Bench, the record being previously removed there by certiorari. The application, if made upon the part of the defendant, must be made before plea pleaded; (Fost. 231; Holt, 684; 4 St. Tr.677); and when the indictment had already, upon the application of the defendant, been removed into the Court of Queen's Bench by certiorari, the Court refused to entertain a motion by the defendant to quash the indictment, after a forfeiture of his recognizance by not having carried the record down for trial. (Anon., 1 Salk. 380). But, if the application be made upon the part of the prosecution, it should seem that it may be made at any time before the defendant has been actually tried upon the indictment. (See R. v. Webb, 3 Burr. 1468). Where the application is made to the Court of Queen's Bench, there is no objection to its being moved on the last day of the term. (Anon., 1 Burr. 651). A rule to quash an indictment for informality at the instance of the prosecutor is absolute in the first instance, although the defendant has removed it by certiorari into the Queen's Bench, and has not yet appeared and pleaded. Reg. v. Stowell, 1 Dowl., N. S., 320). After the indictment against the defendant had been quashed, a and more regular one may be preferred against him. (2 Wooddes. 55′′; 3 P. Wms. 480, 499). He can gain, therefore, in general, very little advantage, except delay, by such an application; and, therefore, usually reserves his objections till after the verdict, when, if the indictment be found to be insufficient, the Court are bound, er debito justitiæ, to arrest the judgment. (R. v. Wheatley, 2 Burr. 1127; 1 Chit. C. L. 303), A person who has pleaded to an indictment which was invalid, on account of its having been found upon the testimony of witnesses net duly sworn to give evidence, may be required to plead to another indictment for the same offence, without the first indictment being quashed by the Court. (Rex v. Chamberlain, 6 C. & P. 97). A jury sworn on an indictment clearly bad in point of law may, it charged from giv- seems, be discharged by the judge from giving a verdict. (R. v. con, R. & M. 27. See R. v. Souter, 2 Stark. C. N. P. 423). ing verdict on. XIII. Amendment of Endictment. Amendment. As to this, see tit. "Amendment," Vol. I. XIV. Granting Copy of Endictment. At common law, the defendant is not, in case of treason or felony, entitled to a copy of the indictment; (Sir A. Vane's case, 1 Lev. 68; 2 Hale, 236; R. v. Holland, 4 T. R. 692, 693; 2 Hawk. c. 39, s. 13; sed vid. R. v. Brangan, 1 Leach, 27; Browne v. Cumming, 10 B. & C. 70 (a)); though, if any legal exception be taken to its form, the Court will, as a favour, allow a copy to be taken of the part which it is material to examine. (2 Hawk. c. 29, s. 13). And he is, in all cases, allowed to have the record read over to him with sufficient distinctness, or even twice in English; (Id.); as is the case at the present day, where the prisoner desires to plead autrefois acquit to an indictment for felony. (Re Vandercom, 2 Leach, 711; 2 East, P. C. 519). Where a party has been tried at a court of quarter sessions, which has previously lapsed for want of due adjournment, he has a right to have a record of the proceedings made up by the clerk of the peace, although the object of the application is to enable him to support a plea of autrefois convict. (Rex v. Middlesex (Justices), 3 Nev. & M. 110). 14. Granting copy of indictment. Granting copy of, in general. In cases of high treason, the prisoner is now, by virtue of the 7 Ann. In treason. c. 21, entitled to have a copy of the indictment, with a list of the witnesses and jurors, delivered to him ten days before the trial, in the presence of two witnesses. But this privilege, by the 6 Geo. III. c. 53, does not extend to treason respecting the coin, for otherwise it would be impossible to try that offence during the same assizes in which it was indicted, as ten clear days between the finding and the trial of the indictment would exceed the time usually allotted for a session of oyer and terminer. In offences inferior to felony, on the other hand, it seems, that the In misdemeanours. right of having a copy of the indictment has at all times been admitted. (Lady Fulwood's case, Cro. Car. 483; Morrison v. Kelly, 1 W. Bl. 385; Evans v. Phillips, Selw. N. P. 952; see Browne v. Cumming, 5 M. & Ry. 118; 10 B. & Cres. 70, S. C.) And now, by 60 Geo. III. & 1 Geo. IV. c. 4, s. 8, in prosecutions for misdemeanours, instituted by the Attorney or Solicitor-General, in any of the Courts therein mentioned, the Court shall, if required, make order that a copy of the information or indictment shall be delivered, after appearance, to the party prosecuted, or his clerk in Court, or attorney, upon application made for the same, free from all expense, to the party so applying; provided that such party, or his clerk in Court, or attorney, shall not have previously received a copy thereof. On an indictment on the prosecution of a private individual for keep- Where postea, &c., ing a common gaming-house, the solicitor of the Treasury was allowed to lost. have a new record of Nisi Prius engrossed, and the postea and verdict (a) In this case of Browne v. Cumming, (10 B. & C. 70; 5 M. & R. 118), it was made a question, but not decided, whether a person tried for felony, and acquitted, has a right to a copy of the record of acquittal. In R. v. Brangan, (1 Leach, 27), the prisoner, having been acquitted, applied for a copy of the indictment, but Willes, C. J., who tried the prisoner, refused to grant it, saying, it was not necessary, because, by the laws of this realm, every prisoner, upon his acquittal, has an undoubted right to a copy of the record of such acquittal, for any use he may think fit to make of it; and after a demand of it has been made, the proper officer may be punished for refusing to make it out. In Groenvelt 15. Other indorsed from the judge's notes, on an affidavit that the postea could not proceedings. be found, and that the solicitor of the Treasury was instructed by the Secretary of State to call for the judgment of the Court. (Rez v. Oldfield, 3 B. & Adol. 659, n.) Not usual to grant a copy of indictment in action for tion of a felony if any probable cause. An action cannot be brought by the person acquitted of felony against the prosecutor of the indictment, without obtaining a copy of the recor malicious prosecu- of his indictment and acquittal; (Caddy v. Barlow, 1 M. & Ry. 275); which, in prosecutions for felony, it is not usual to grant, if there is any the least probable cause to found such prosecution upon. For it woul be a very great discouragement to the public justice of the kingdom, if prosecutors for felonies, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.-But action on a case for a malicious prosecution may be founded on such ar indictment whereon no acquittal can be, as, if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn; for it is not the danger of the plaintiff, but the scandal, vexation, and expense, up which this action is founded. However, any probable cause for prefer ring it is sufficient to justify the defendant, provided it doth not appear that the prosecution was malicious. (3 Blac. Com. 126; Farmer v. R. Darling, Burr. 1971. See Browne v. Cumming, 10 B. & C. 70 ; 5 M. & R. 118, S. C.) But in cases of misdemeanour the defendant, who has been acquitte, need not obtain a copy of the indictment. (Morrison v. Kelly, 1 Biari. Rep. 385). At the sittings in Middlesex, an action came on to be tried for a malicious prosecution in indicting the plaintiff for keeping orderly house. To prove the fact, the clerk of the peace for the West minster sessions attended, with the original record of the acquittal. It was objected that there ought to be a copy of the record granted by the Court before which the acquittal is had, in order to ground an action fer a malicious prosecution. But it was ruled by Lord Mansfield, C. J. that, though this is necessary where the party is indicted for felony, yet the practice is otherwise in case of misdemeanours. The prosecutor of an indictment for misdemeanour may obtain the usual Crown Office certificate of his bill having been found, for the purpose of taking out a judge's warrant against the defendant, without taining an office copy of the indictment. (Rex v. Redfern, 2 Ad & E 387; 4 Nev. & M. 198, S. C.) Where an indictment for a conspiracy had been found against a de fendant, the Court refused to grant such defendant a rule to shew why the prosecutor and his attorney should not furnish him with set of the names and addresses of the witnesses on the back of the indict ment, even though it was sworn by the defendant, that he believed sch witnesses were procured and suborned for the purpose of the prosecution. (Reg. v. Gordon, 2 Dowl., N. S., 417). XV. Other Proceedings as to Endictments. As to the process to compel the defendants to answer it, see tits. "Outlawry," "Process," Vol. V.; tit. "Warrant," Vol. VI. As to the removal of indictments into other courts or counties, see tit. "Certiorari," Vol. I. As to the appearance and arraignment of defendant, see tits. "Appear ance," "Arraignment," Vol. I. As to the pleas and pleadings relative to the indictments: for pleas &c., in abatement, see tit. "Abatement," Vol. I.; and for pleas, &c., bar, see tit. "Pleas," Vol. V.; and tits. "Autrefois Acquit," Autrefas """ Autrefois Convict," Vol. I.; tit. " Pardon," Vol. V. As to demurrers, see tit. "Demurrer," Vol. II. As to noli prosequi, see tit. "Noli Prosequi," Vol. V. Attaint," As to the trial and preliminary proceedings, see tit. " Trial,” Vol. VI. As to the evidence, see tit. "Evidence," Vol. II. As to judgment and proceedings, see post, tit. "Judgment;" and the different titles of punishments. As to costs, see tit. "Costs," Vol. II. XVI. Forms. See the form, ante, tit. “ Examination," Vol. II. p. 477. See the form, ante, tit. "Evidence," Vol. II. p. 477. See the form, ante, tit. "Recognizance," Vol. V. p. 690. Middlesex.-The jurors of our lady the Queen upon their oath present, that [Charles Davis], late of the parish of [Saint Paul, Covent Garden], in the county of Middlesex, [gentleman], on the [first] day of [November], in the seventh year of the reign of our lady the now Queen Victoria, with force and arms, at the said parish of [Saint Paul, Covent Garden], in the said county of Middlesex, did, &c. [here state the offence.] Middlesex. The jurors for our lady the Queen upon their oath present, that .D., late of the parish of [Saint Martin-in-the-Fields], in the county of Midllesex, [labourer], &c. [proceed as above.] 1 The jurors of our lady the Queen up 16. Forms. (1). Condition of a (2). The like of a dictment. (5). Commence- at sessions for county of Middlesex, for an offence committed within the city and liberty of Westminster. ty, borough, and town of Westmin-on their oath present, that C. D., late (6). The like of in ster, in the county of Middlesex. of the parish of [Saint Martin-in-the-Fields], within the liberty of the dean and hapter of the collegiate church of Saint Peter, Westminster, the city, borough, Ind town of Westminster, in the county of Middlesex, [labourer], &c, on the day of, in the year of the reign of our lady the now Queen Vicoria, with force and arms, at the parish aforesaid, and within the liberty aforeaid, in the city, borough, and town of Westminster aforesaid, in the county of Middlesex aforesaid, did, &c. [here state the offence.] Xity, borough, and town of Westmin-' The jurors for our lady the Queen in the day of Kent. [The venue.]—The jurors for our lady the Queen upon their oath Central Criminal Court.-The jurors, &c., [proceed as in other indictments, at after the statement of venue always add, "and within the jurisdiction of the id Court," or, if another Court be alleged in the indictment, "and within the risdiction of the said Central Criminal Court."] dictment at sesand liberty of sions for the city Westminster, for an offence comsame, but without St. Martin's-le mitted within Grand. |