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pears so strongly to indicate an intention on the part of the legislature, that the statute should extend to indictments for misdemeanors below the degree of felony, as at least to justify a slight degree of scepticism in respect of a contrary construction, and to warrant a brief inquiry into the authorities upon which that construction is founded. In the first place, Lord Coke, in Blackmore's case, in enumerating fourteen misprisions, which he says are not amendable by virtue of the stat. 8 H. 6. c. 12. asserts, that it does not extend to an appeal, nor to pleas of the crown, for they are excepted; which is a remarkable assertion, for the words of the statute give the judges power to amend "all that which to them seemeth to be misprision of the clerks in any record, process, word, plea, warrant of attorney, writ, pannel, and return, except appeals, indictments of treason and felony, and outlawries for the same."
In Tutchin's (s) case, Mr. J. Powys expressed a direct opinion that the statute in question extended to crown cases which were not within the exceptions of the statute, since the purview of the statute is as express and general as it can be, and the exception but particular; and he added, that in Lord Bridgwater's case, Lord Hale thought the statute was not to be so restrained; but Powel, J. was of opinion, that the statute 8 H. 6. c. 12. was to be explained by the previons statute of amendment, 14 E. 3. c. 6. and that the exception in the statute of Henry was introduced ex abundanti cautelá.
In the case of the King v. Hockenhull (t), the court, as has already been observed, held that the statute did extend to criminal cases which were not excepted. Lord Hale ("), in his Pleas of the Crown, says, that none
(s) Ld. Ray. 1861. Salk. 51.
(t) 3 Mod. 167.
(u) 2 Hale, 193.
of the statutes of jeofails apply to indictments: but this must be understood as said in reference to the indictments of which he was then treating; namely, to indictments in capital cases, since in entering upon the subject he cautiously admonishes the reader that he intends to treat of those indictments only which relate to capital of fences (x). Serjeant Hawkins lays it down as a settled rule, that no criminal prosecution is within any of the statutes of amendments, for which he cites Tutchin's (y) case and Reed's ()case; but in the latter of those cases the defect was holden to be amendable at common law; in the former it was holden that the fault was incurable even by the statutes, supposing them to apply.
In Wilkes's (a) case, Lord C. J. Mansfield and Mr. J. Yates seem to have been of opinion, that the statutes of amendment did not apply to criminal cases; but it is to be observed, that there was no necessity in that instance to resort to the statute, for the amendment was clearly warranted by the established practice and usage of the court, and the question was, as to the alteration of a very material allegation in the information, to which the statute could have no relation whatever. Finally, notwithstanding the frequent acquiescence which has been yielded from time to time, by very eminent judges, to the broad position of Lord Coke, it is impossible to forget that this was founded either upon a misrepresentation of the sta tute itself, or upon a forced extension of its plain and literal sense; and it must be confessed that his opinion has been adopted without much investigation or argument, though not wholly without opposition. The courts have, in many instances, shewn a desire of avoiding the ques
(x) 2 Hale, 165. c. (y) 6 Mod. 268.
(z) 1 Sid. 66.
ion, by making amendments as at common law, rather than avowedly under the statute, and no case appears in which an amendment which was allowable under the statute, but not at common law, has been applied for; and, therefore, there does not seem to be any express decision that the statute is inapplicable to criminal cases below the degree of felony. On the contrary, Hockenhull's case is a direct authority on the other side.
With respect to amending pleas, &c. at the instance of the defendant, it was holden, in Knowles's case, that his plea to an indictment for murder might be amended after it had been filed and after the attorney-general had replied, and the court held, that before judgment, and whilst things were in fieri and agitation, they had authority over all the proceedings (b).
It has been said, that a verdict general or special cannot be amended by the notes of the clerk of assize in criminal, though it is otherwise in civil cases (c).
But in the case of Eddowes v. Hopkins (d), Ld. Mansfield mentioned the case of one Gibson who was convicted of robbery, and a mistake being discovered in the verdict, it was, on consultation with all the judges, corrected from the minutes signed by the jury, and the prisoner was executed. And the same was holden by Lord Mansfield in Hazell's case, upon a special verdict on an indictment for murder (e).
With respect to the judgment, the recording of it is an act so important in its nature, and is presumed to have been done with such deliberation and attention, that it cannot be altered either by the same court or by any other after it has become matter of record. In Wal
(b) 1 Salk. 47. Holt, 530. (c) R. v. Keat, Salk. 47. Bold's case, Salk. 53. Keil. 1.
(d) Doug. 375.
(e) Leach, 425. Buller J. dissent. See Ld. Ray. 141.
cott's case (f) the judgment for treason was thus entered -"quod interiora sua extra ventrem suum capiantur,” omitting the words, " ipso que vivo comburantur?” Upon writ of error brought by his son, those who claimed the father's estate, under the king's grant, moved that the clerk of the indictments for London might attend, which he did, and produced the record of Walcott's attainder in court, and also the indictment on which he was tried; and it appeared, upon inspection, that the deficient words were amongst the minutes taken by him, and indorsed upon the indictment. It was then moved, that the record might be amended by the minutes, but the court refused the application, and the judgment was reversed for this defect.
(f) 4 Mod 395. The reversal was afterwards confirmed in the House of Lords.
Of Process upon Indictments and Informations.
I. In case of Treason or Felony, p. 272.
1. Of the Capias, and in what Cases more than one is requisite, p. 273.
2. Of the Exigent and Outlawry, p. 822.
3. Writ of Proclamations, p. 285.
II. In Case of Misdemeanors below the Degree of Felony, p. 287.
III. In Case of Informations, &c. p. 292.
AFTER an indictment has been found against a defendant, if he be not in custody, it is necessary to issue process for the purpose of bringing him into court to defend himself against the charge; for though a bill may be preferred and found against a person in his absence, this being merely an ex parte proceeding to which, if present, he could make no opposition, yet no indictment can be tried unless he personally appear; a provision founded upon a principle of equity in all cases, and the express enactment of the stat. 28 E. 3. c. 3. in capital ones, that no man shall be put to death without being brought to answer by due process of law (a).
After the indictment, in the usual order of the record, follows the award of process, whose different stages will next be briefly considered.
The first step in process upon indictment for treason
(a) 4 Comm. 318.