to be transported beyond the seas for the term of seven years, or to be 4. Discharging imprisoned, with or without hard labour, for any period not exceeding or aiming, &c. three years, and during the period of such imprisonment to be publicly Fire-arms, &c. or privately whipped, as often and in such manner and form as the said at the Queen. court shall order and direct, not exceeding thrice." Sect. 3. Provided, "that nothing herein contained shall be deemed to Not to alter alter in any respect the punishment which by law may now be inflicted punishment for high treason. upon persons guilty of high treason or misprision of treason." By the 5 & 6 Vict. c. 38, s. 1, this offence is not triable at any quarter Offence not sessions. triable at sessions. V. Forms. Commencement as usual, as ante, p. 254.]-on the day of the queen's death. A. D. (1.) Commitment at the parish of in the said county, maliciously and traitorously for high treason, did compass, imagine, devise, and intend, to depose our sovereign lady Queen by compassing Victoria, from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lady the Queen to death; against the form of the statute in that case made and provided. And you, the said keeper, &c. [as usual, to the end. in the county of (venue)-The jurors for our lady the Queen upon their oath present, (2.) Indictment that C. D., late of the parish of labourer, on the for a like offence. day of in the year of the reign of our lady the now Queen Victoria, a subject of our said lady the Queen then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lady the Queen, and wholly withdrawing the allegiance, fidelity, and obedience, which every true and faithful subject of our said lady the Queen should and of right ought to bear towards our said lady the Queen, on and on divers other days, as well before as after, with force and arms, at the parish aforesaid, the county aforesaid, maliciously and traitorously, together with divers other false traitors, to the jurors aforesaid unknown, did compass, imagine, devise, and tend, to depose our said lady the Queen from the royal state, title, power, and perament of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lady the Queen to death; and the said treasonable compassing, imagination, device, and intention, then and there maliciously and traitorously did express, utter, declare, and evince, by divers overt acts and deeds hereinafter mentioned (that is to say), in order to fuifil, perfect, and bring to effect his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he, the said C. D., ach false traitor as aforesaid, afterwards, to wit, on the said and on ders other days, as well before as after, with force and arms, at the parish foresaid, in the county aforesaid, maliciously and traitorously did conspire, mult, consent, and agree with one A. B., E. F., and divers other false traitors, to the jurors aforesaid unknown, to raise, levy, and make insurrection, rebellion, and war, within this kingdom, against our said lady the Queen; and, further to fulfil, perfect, and bring to effect, his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he, the said C. D., ruch false traitor as aforesaid, afterwards, to wit, &c. &c. [stating other overt acts, and conclude thus :] in contempt of our said lady the Queen and her laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him, the said C. D., against the form of the statute in such case made and provided, and against the peace of our said lady the Queen, her crown and dignity. (See a variety of forms, 2 Chit. C. L. and Jervis's Archb. Crim. Law, 9th ed. 495.) Treasure trove, what. Taking treasure 308 Treasure Found. TREASURE trove, or treasure found, is where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth, or other private place, the owner thereof being unknown; in which case, the treasure belongs to the queen, (or to some other by the queen's grant or prescription): but if he that hid it be known, or afterwards found out, the owner and not the queen is entitled to it. (1 Bla. Com. 295.) Also, if it be found in the sea, or upon the earth, it doth not belong to the queen, but to the finder if no owner appears. So that it seems it is the hiding, not the abandoning of it, that gives the queen a property. (Id.) This difference arises from the different intentions which the law im plies in the owner. A man that hides his treasure in a secret place evi dently doth not mean to relinquish his property, but reserves a right of claiming it again when he sees occasion; and, if he dies, and the secret also dies with him, the law gives it to the queen, in part of her royal revenue. But a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant or finder, unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property. (1 Bla. Com. 295.) Larceny cannot be committed of such things whereof no man hath any trove, not felony. determinate property, though the things themselves are capable of property, as of treasure trove, or wreck, till seized; though he that hath them in point of franchise may have a special action against him that takes them. (1 Hale, 510.) But finable. The coroner may inquire thereof. Also the sheriff in his torn. The punishment for concealment of treasure trove is by fine and im prisonment. (3 Inst. 133.) And it belongeth to the coroner to inquire thereof. (Id.) Concerning which it is enacted by the 4 Edw. I. st. 2, that a coroner, being certified by the king's bailiffs, or other honest men of the country, skull go to the places where treasure is said to be found. And it is further en acted in the same statute, that the coroner ought to inquire of treasure that is found, who are the finders, and likewise who is suspected thereof, and that may be well perceived, where one liveth riotously, haunting taverns, and hath done so of long time; hereupon he may be attached for this suspicion by four or six, or more pledges, if they may be found. (See further “Coroner, Vol. II.) Also, it seems to be agreed, that all seizures of treasure trove, belonging to the queen, may be inquired of in the sheriff's torn. But it seems questionable, whether a prescription in a court leet, to inquire of such seizure belonging to the lord of it, being a subject, be good or not, since it is against the general rule of the law for the leet to take cognizance of trespasses done to the private damage of the lord, because that would make him his own judge. (2 Haw. c. 10, s. 57.) Treasurer. See " County Treasurer,” Vol. II. Trees, Injuries to, see "Malicious Injuries to Property," Vol. V.;-Stealing of, see "Larceny," Vol. III.;-Burning of, see "Burning," Vol. I. 309 Trespasses. As to Malicious Trespasses done to property, and how punishable on No indictment lies for a mere civil trespass committed to land or goods, unaccompanied with circumstances constituting a breach of the peace; (see R. v. Osborn, 3 Burr. 1701; R. v. Wilson, 8 T. R. 357; R. v. TurBT, 13 East, 228;) but as to forcible entries and detainers, see "Forcible Entry and Detainer," Vol. III. Nor can a party be imprisoned for a mere civil trespass. (Id. And see Williams v. Glennister, 4 D. & R. 217; 2 B. & C. 699, S. C.; "Arrest," Vol. I.) Trial. [See further as to the Trial of Offences at the Sessions, “Sessions," Vol. V.] Time of-In felonies, it is always the practice to try the defendant at Time of trial. the same assizes. (1 Chit. C. L. 483, and authorities there collected.) In misdemeanours, also, since the 60 Geo. III. c. 4, this is now the usual practice, whether at the assizes or sessions, unless when the defendint traverses, as in some cases he may do. (See "Traverse,” ante, 295.) In capital cases, the court will not appoint the time of trial, unless the defendant be brought to the bar, and be personally in court, when the rule is made for the purpose. (R. v. Johnson, 2 Stra. 826.) Notice of]-When the defendant has traversed the indictment, he must, Notice of trial. of desirous to proceed to trial, or get rid of the prosecution, give due notice to the prosecutor of his intention to proceed to trial. The time required at the assizes is generally eight days exclusive; at the sessions at least two, and generally four days reckoned exclusively; and at all the Middlesex ssions four days, exclusive, before the commencement of the session at which the trial is intended to proceed. (4 Bla. Com. 351, n. 5; Cro. C. C. 9, 20, 21; Dick. Sess. 152, 3; 1 Leach, 111.) But the practice varies * different places, and on the Oxford circuit ten days' notice of trial is required. (Jervis, Arch. 9 ed. 68.) Where the traverse is sent down from the Crown-office, the same notice is in general requisite as in civil proceedings (Cro. C. C. 9); that is, at the sittings in London and Middlesex, ht days, if defendant resides within forty miles of London; and fourteen days, if he reside beyond that distance; and at the assizes ten days Tidd, 8 ed. 814, 15). The justices at the sessions may fix, as a general le, what notice they will consider as sufficient. (4 Bla. Com. 351, n. The notice of trial, when the defendant is indicted before the justices ofoyer and terminer, should specify the nature of the offence for which he is to be tried before them. (Cro. C. C. 21.) And it has been held at sessions, that such notice should be signed by the defendant himself, and not by his solicitor. (1 Chit. C. L. 2 ed. 488.) It is necessary that the notice thus framed should be served personally Service of. on the prosecutor to whom it is directed. (Cro. C. C. 21.) Upon this being effected, the party who served it should make an affidavit of the Cro. C. C. 21. See Forms, Cro. C. C. 298,) which the defendant Affidavit of. shud be ready to produce at the time appointed for trial (Cro. C. C. 21). For if, after due service, the party indicting does not appear, upon being three times called in open court, the defendant will be entitled to an acquittal. (Id. ibid. Williams, J., Sessions. See form of calling, Dick. Sess. 154; 3 Williams, J. 1032.) And on the trial of a misdemeanour, the Notice of. Notice of trial cannot be found. prosecutor cannot, it seems, appear for the purpose only of questioning the proof of notice of trial; and when he does appear, he cannot call for proof of notice. (1 Ry. & Mo. C. N. P. 241.) If the prosecutor cannot be found, on the attempt to serve the notice where prosecutor of trial upon him, the person who made such attempt must make an affidavit that he has ineffectually endeavoured to serve the prosecutor. (Cro. C. C. 21.) Upon this the defendant, by his counsel, may move the court at sessions, that service of notice at the office of the clerk of the peace may be deemed good service; and when an order has been obtained, the defendant sticks up a copy of it, and of notice of trial, in the office of the clerk of the peace. The court may also be moved to respite the recognizance, and for a rule or order that service of a new notice, at the prosecutor's last or usual place of abode, shall be deemed good for the sessions ensuing. Upon this motion, the court will make an order, in which such second notice will be declared to be valid. When this is obtained, the defendant should serve a copy of the order, together with another notice, at the place of residence which it mentions; he should also take out a venire, enter his traverse, and be prepared with a second affidavit, stating the order, the notice, and the service, to produce at the ensuing sessions; when, if the prosecutor still neglects to appear, the court will direct the defendant to be acquitted. (Cro. C. C. 21; 1 Chit. C. L. 489 Besides the respiting of the recognizance, which is in this case allowed, after the attempt to serve the first notice, the same indulgence will fre quently be granted, on motion, upon indictments for nuisances, or suffering highways to continue in bad repair, in order to give the defendants an opportunity of removing the causes for which they are indicted; and to obtain the certificate of magistrates that they have done so, upon which the defendants will, in general, merely be subject to a nominal fine. (Dick. Sess. 140.) The reason for this practice is, that such prosecutions are carried on rather for the suppression of public grievances, than for the punishment and example of offenders; and all the ends of justice are sufficiently answered by a removal of the ground of the proceedings. Steps preparatory to trial. Putting off trial. Grounds for. also Steps preliminary to.]-At the assizes, the defendant intending to try, must go before the clerk of assize, and take out a copy of the proceedings drawn out of record, for which he is to pay after the rate established by custom. At the same time, he must also sue out a venire, for the sheriff to return a jury, which the clerk is empowered to award. He may obtain his subpoenas for witnesses from the same officer. After the centre is procured, it must be delivered to the under-sheriff, who will return a jury. (Cro. C. C. 9.) When all these requisites have been obtained, the traverse must be duly entered with the judge's marshal; for unless this form has been complied with, the defendant has no right to insist on his trial. (1 Leach, 111; Cro. C. C. 9.) The proceedings at the sessions are similar, except that the descriptions of the officers differ, the clerk of the peace being substituted for the clerk of assize; and, formerly, the subpoenas of the latter running only in the same county, if the witnesses resided beyond it, application must have been made to the Crown-office; (Cro. C. C. 21;) but this has been altered by statute. (45 Geo. III. c. 92, ss. 3, 4; 1 Chit. C. L. 2 ed. 490.) Putting off.]—There are several cases in which, upon a proper application, the court will put off the trial. And it has been laid down that no crime is so great, and no proceedings so instantaneous, but the trial may be put off, if sufficient reasons are adduced to support the application; (per Lord Mansfield, 1 Bla. Rep. 514; 3 Burr. 1514; Fost. 2;) and it should seem that the trial of a collateral issue, as the identity of the prisoner, may be put off on a positive affidavit, but not otherwise; because, as the prisoner's life is not in jeopardy on that issue, there is no occasion to allow indulgence, unless the defendant will swear to the fact himself. (1 Bla. Rep. 4, 5, 6; but see Lord Kenyon's observations on this case, Peake's Rep. 97, 8.) ant's attorney. Where accomplice confesses In general, the trial may be postponed, on the ground of the publica- Where jury may tion of a libel, tending to influence the minds of the jurors in forming be influenced. their decision; (4 T. R. 285; 1 Burr. 510, 511; Bac. Abr. Trial, H.; 3 Illness of defendBrod. & Bing. 272;) and the existence of a prejudice in the jury will furnish a ground for putting off the trial. (Reg. v. Bolam, 2 M. & Rob. 192) The illness of the defendant's attorney has been allowed to operate his guilt. in a similar occasion. (Say. Rep. 63; Bac. Abr. Trial, H.) And where an accomplice fully and fairly discloses the joint guilt of himself and his companions, and is admitted by justices of the peace to bear testimony against his fellows, by which he acquires an equitable claim, though no absolute right, to the mercy of the crown, the court will put off the trial, in order to enable him to apply for a pardon. (Cowp. 339, 340; 1 Leach, 125.) And where a material witness, upon being examined, appears to Where witness have no sense of the obligation of an oath, or of a future state of retri- cannot be legally bution, so that he cannot legally be sworn, the court may put off the trial, even in a capital case, and order him to be in the mean time instructed by a clergyman in the principles of moral obligation. (1 Leach, 430, n. (a).) sworn. when not pro On a plea of autrefois acquit, or convict improperly pleaded, the court On plea of auwill in some instances postpone the trial, to enable the prisoner to plead trefois acquit, &c. it properly. (See R. v. Bowman, 6 Carr. & P. 101; R. v. Chamberlain, perly pleaded. Id. 93.) But the most usual ground for the delay is the unavoidable absence or Absence of witillness of a material witness, which, if properly verified, will be sufficient, ness. on an indictment for treason, felony, or misdemeanour, at the instance of a defendant, though the prosecution is carried on at the public expense. (Bac. Abr. Trial, H.; Foster, 2; R. v. D'Eon, 3 Burr. 1514; R. v. Joliffe, 4 T. R. 285; R. v. Street, 2 C. & P. 413; R. v. Chapman, 8 C. & P. 558.) If, however, a witness was not absent at the time notice of trial was given, it seems the court will not grant the application on account of any subsequent absence. (Barnes, 442; Bac. Abr. Trial, H.) And where the witnesses are in a foreign country, and not likely shortly to come hither, the court have refused to allow it; (3 Burr. 1514, 15; 1 Bla. Rep. 510; 8 East, 37;) though as the witnesses may be examined on interrogatories sent out abroad, it should seem that when the evidence is very material, the trial may be delayed till such examination has been obtained. (2 M. & Sel. 602; 1 Bla. Rep. 512.) Sed quære, if the court will put off the trial until the witnesses are examined, but only to a definite period. (1 Chit. Rep. 685.) And in prosecutions for a misdemeanour, committed in the East or West Indies, in a public capacity, the defendant, under the 31 Geo. III. c. 63, and 42 Geo. III. c. 85, is, on a special affidavit of the absence of material evidence, entitled, in the discretion of the Court of Queen's Bench, to put off the trial, and obtain a mandamus for the examination of the witness abroad, and the prosecutor may obtain such mandamus and delay as a matter of course. (8 East, 31.) But when the defendant has been guilty of laches or delay, the court will refuse to put off the trial (1 Bla. Rep. 514), or at least will impose terms upon him, as that he shall consent to examine upon interrogatories a material witness for the crown. (2 M. & Sel. 602.) In civil cases, where the defendant has pleaded in abatement, a strong case must be made out to induce the court to put off the trial. (2 Chit. Rep. 5.) And it is the constant practice at the Old Bailey, not to put off trials on account of the absence of witnesses to character, lest there should be a failure in that prompt execution of justice, so necessary to the intimidation of offenders. (8 East, 34; 1 Chit. C. L. 492.) Before any application can be made to postpone the trial, notice must Practice as to apbe given to the opposite party, in order that he may attend and oppose plication for putit; and in the Queen's Bench, a rule nisi must be obtained. (Cro. C. C. ting off the trial. 22. See form, Cro. C. C. 299; Tidd's App. 312.) Upon this an affidavit Affidavit for. must be made, stating the names and places of abode of the absent witnesses, and that they are material to the prosecution or defence. (8 East, 35,6,33; Fost. 2.) Affidavits in corroboration may be filed. (1 Kenyon's Rep. |