The Columbian fountain., 1845-12-16


l845, motion is made by his counsel, P.
R. Fendall and Walter Jones EsdTires, for
his discharge, on the ground that this pre-
sentiment is equivalent to the finding Of " not
found," "not true BILL" on an indictment
for murder or manslaughter.
A presentment is, strictly speaking, the
notice taken by Grand jury of any offence,
from their own knowledge or observation,
without any bill of indictment laid before
them at the instance Of the King, upon
which the officer Of the Court must after
wards frame an indictment.--4 Blackstone
Com. 3Ol;; Chitty Criminal Law, 1863.
The act Of Nd, passed November 3, ,,l722,
chap 4, provides thatfrom and after the pub
llcatlon hereof no attorney general, or
clerk OF the peace, or of indictments, shall
exhibit any bill or bills Of indictment to any
Grand Jury against any person, whatsoever,
without an express order from the Govern
or and Council, or from the Court where
the prosecution is to be, or some one Of the
Justices, Of the Court, or unless the offender
be bound over to such Court, or that the
Grand Jury find or make presentment of
the offence of their own knowledge, upon
penalty Of paying the party grieved all the
damages and charges that shall be occasion
ed by such prosecution; any law, statute,
usage, or custom, to the contrary notwith-
standing.
Under this law, practice has grown up
to precede indictments by presentment.
This ! understand to be the uniform practice
at this day, and it has been followed in this
instance, the witnesses having been all sum-
moned by the District Attorney at the re-
quest Of the defendants counsel, SO that the
investigation might be made without delay
by the Grand Jury, he having no further or
otherwise interfered.
The inquiry is, first, whethera presentment
acquitting the accused is equivalent to a
finding to the same effect on an indictment
and, second, if SO, does this presentment a.
mount to anacquittalin in law, or have the Grand
Jury, on their responsibility, as most i'm
portant and the exclusive originators Of Ju-
dicial criminal proceedings, presented such
facts as show that in their judgment no Of
fence, or and excusable one, has been COM
mitted by the accused.
lst. The inquiry has been as full as it
would have been on an Indictment. This
the Court is bound to presume, or to sup
pose, which cannot be done byme that the
Grand Jury, in assuming the high RESPONSE
bllity they have taken, have neglected their
duty or misconducted themselves in its dis
charge. The practice here imposes this full
investigation on them before they present;
If they think crime has been committed.
they sopresent, and the indictment follows,
and is found, | presume, without any re-ex-
animation OF the witnesses. am, therefore,
OF the opinion that a presenment of crime
or the reverse, under, the peculiar practice
here, is and ought to be equivalent to the ac-
ton and judgment Of Grand Jury upon
bill Of Indictment.
"a. Do they present facts which in law
amount to an acquittal9 Homicide in law.
excusable Sc defendendo, is /: :. If two men
fight, and if one of them flies, or if one at
tack another, and without fighting he flies,
and retreating as far as he can, until at length
no means OF escaping his assailant remain
and he then turn round and kill his assailant
In order TO avoid destruction, the homicide
is excusable in self-de(ence.n Foster 277
.Arch. Pl. and Ev. 39l; A Black Com.
1873, Russel on crimes, 543-4 A Black.
Com. lS4 "no possible (or at least prob
able) means of escaping his assalant.''
The presentment is " VIM. R. Elliott.
for causing the death of w. z. Kendall, by
shooting him with pistol in self-defence,
when he was attacked by, and. was retreat
ing from the said Kendall" SC.
That VIM. R. Elliott caused the death of
VIM. z. Kendall by shooting him-the fact
of the homicide is thus found but they fur
ther say he shot him in self-defence this
embodies the substance of the definition of a
killing excusable. Self-defence means to
protect from an assault on his life, or to save
himself from some great bodily harm; but
the Grand Jury go on to say g when he was
attacked by, and was retreating from. the
said kendall;' thereby, it seems to me,
using almost the very terms of the law on
the subject.
If (and the Grand Jury so presently it was
case of self-defence, after the accused was
attacked, and while he was retreating from.
or to avoid the deceased, it would be excu-
sable homicide in the eye Of the law. -at
Suppose the Grand Jury had 50 found on
a bill Of indictment, no doubt is or can be
entertained that the Court would be bound
,,,z II, T.. .I.-... IL