No indictment can be good, without expressly showing some place wherein the offence was committed, which must appear to have been within the jurisdic tion of the court.
There are several emphatical words of art, which the law has appropriated for the description of an ,offence which no circumlocution will supply ; as felonious ly, in the indictment of any felony ; bur glariously, in an indictment of burglary, and the like. And an indictment on the black act, for shooting at any person, must charge that the offence was done wilfully and maliciously.
By 10 and 11 William, c. 23, it is enact ed that no clerk of assize, clerk of the peace, or other person, shall take any money of any person, bound over to give evidence against a traitor or felon, for the discharge of his recognizance, nor take more than two shillings for drawing any bill of indictment against any such felon, or pain of five pounds to the party griev ed, with full costs. And if he shall draw a defective bill, he shall draw a new one gratis, on the like penalty. With respect to drawing indictments for other misde meanors, not being treason or felony, no fee is limited by the statute, the same therefore depends on the custom and an cient usage.
Every person charged with any felony or other crime, who shall on his trial be acquitted, or against whom no indict ment shall be found by the grand jury, or who shall be discharged by proclamation for want of prosecution, shall be immedi ately set at large in open court, without payment of any fee to the sheriff or gaol er; but in lieu thereof, the treasurer, on a certificate signed by one of the judges or justices, before whom such prisoner shall have been discharged, shall pay, out of the general rate of the county or district, such sum as has been usually paid, not exceeding thirteen shillings and four-pence.
By these words, immediately set at large, the reader must not understand that this actually takes place immediately after the throwing out of the bill. It is usually done after the assizes or sessions are over, and when the judge or justices proceed to the gaol-delivery, as it is call ed. This affords an opportunity for the preferring a new indictment against the party, if there should be occasion ; and it is upon this ground, that the detention of a prisoner, after rejecting the indictment by the grand jury, is countenanced. It is, however, in many cases, a hardship. The
sheriffs of London, in A. D. 1808, Sir Richard Phillips, Knt. and Mr. Alderman Smith, very much to their credit, endea voured to procure the judges at the Old Bailey to discharge prisoners immediate ly, but the practice having long continued as above stated, the judges have been averse to altering it.
Upon a certificate of an indictment be ing found, for an assult or other misde meanor, and much more for a felony, at the sessions, a warrant is issued, on the application of the prosecutor, to take the party into custody, and he may be held to bail by a justice of the peace, or a judge ; and it is usual, in expectation of such a warrant, to put in bail, and obtain a super sedeas to the warrant previously. This was not formerly the practice, upon in dictments or informations in the court of King's Bench. An act has passed to ena ble the court to issue warrants, and hold to bail, upon indictments or informations filed. This act is principally objection able, as it may be used as the means of harassing persons, prosecuted harshly and vindictively bv the Attorney Genera for libels, &c. It is either a useless act, since the justice of the country has been safely conducted for centuries without it, or it is an act of great importance to the liberty of the subject.
But an action cannot be brought by the person acquitted against the prosecutor of the indictment, without obtaining a copy of the record of his indictment and acquittal ; which, in prosecutions for fe lony, it is not usual to grant, if there be the least probable cause to found such prosecution upon ; for it would be a very great discouragement to the public jus tice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action on the case, for a malicious prosecution, may be founded on such an indictment where on no acquittal can be, as, if it be reject ed by the grand jury, or be coram non judice, or be insufficiently drawn ; for it it not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for preferring it is sufficient to justify the defendant, pro vided it do not appear that the prosecu tion was malicious. And it is necessary to show something more than the mere not prosecutis, in order to raise the infer ence of malice.