Certificate of Indictment

[mklhawley]

This is from Joe Chetcuti:


The Certificate of Indictment informs us that Tumblety never appeared in court to make a plea of "Guilty" or "Not Guilty" to the charges against him.

When was Tumblety required to make this plea? Nov 20th or Dec 10th?

Sincerely,

Mike

[Simon Wood]

Hi Joe,

If for reasons unknown to the defense and prosecution counsels Tumblety had not appeared at the Old Bailey on 20th November 1888 [viz. already been on his way to Le Havre] I doubt they would have so readily agreed to a postponement of his trial until the December Sessions.

By the way, nice find of Tumblety's 1869 letter.

Regards,

Simon

[David Orsam]

A little bit more on the certificate of indictment. All quotes in this post are from "Principles of the Criminal Law" by Seymour F. Harris, 1892 edition:

"When an indictment has been found at the assizes or sessions against some person who is at large, the clerk of the indictments, or clerk of the peace, after such assizes or sessions, upon the application of the prosecutor or any person on his behalf, will grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the jurisdiction where the offence is alleged to have been committed, or in which the accused resides, or is, or is suspected of residing or being, such justice must issue his warrant to apprehend the person so indicted and bring him before some justice of the jurisdiction, who upon proof by oath that the person present is the person indicted, will, without further inquiry or examination, commit him for trial or admit him to bail. Provision is also made for the backing of such warrant if the accused is out of the above jurisdiction....Another mode of proceeding is for the court before whom the indictment is found to issue a bench warrant for the arrest of the accused and to bring him immediately before the court."

Had Tumblety fled on 19/20 November, therefore, the certificate of indictment would have been issued after the November sessions, whereas we know it was issued after the December sessions.

Harris also says:

"In misdemeanours formerly when a defendant was not in custody, it was the practice not to try him at the same assizes or sessions at which he pleaded not guilty to the indictment, but to require him to give security to appear at the next assizes or sessions. But now it is provided generally that, - No person prosecuted is entitled to traverse or postpone the trial of any indictment found against him, provided that, if the court be of opinion that the defendant ought to be allowed a further time, either to prepare for his defence or otherwise, it may adjourn the trial to the next subsequent session, upon such terms as to bail or otherwise as seem proper."

The right of traverse (i.e. automatic adjournment) was lost in 1875 when the relevant section of the Indictable Offences Act of 1848 was repealed.

From what Harris says, if Tumblety had wanted more time to prepare his defence, he would have been expected to appear to plead not guilty to the indictment on 19th November but we know from the certificate of indictment that he did not do this.

Harris also sets out the procedure leading up to the plea. He says that the Grand Jury will find a true bill against the defendant on the basis of hearing witnesses. They do not see the defendant.

Then:

"As to the order of trial of prisoners at the same assizes or sessions, the indictments found are filed by the clerk of arraigns or clerk of the peace in the order in which they are received from the grand jury. And, roughly speaking, this is the order of trial, felonies, as a rule, being taken before misdemeanors, and cases in which the defendant is in custody before bail cases. But this arrangement is subject to the discretion of the judge, who constantly sets it aside to suit the convenience of counsel, and for other purposes".

Then we have the arraignment:

"The arraignment or requiring the prisoner to answer to a charge of an indictable offence, consists of three parts: -

(a) Calling the prisoner to the bar by name.

(b) Reading the indictment to him.

(c) Asking him whether he is guilty or not of the offence charged.

.....It is usual to arraign several prisoners immediately in succession, and then to proceed to the trial of one, the rest being put down for the time.

The indictment having been read to the prisoner, the clerk of the arraigns, or clerk of the peace, or other proper officer of the court, demands of him, "How say you, John Styles, are you guilty or not guilty?" One of three courses will then be taken by the prisoner. He will either (a) stand mute (b) Confess, or say that he is guilty (c) Plead.

We may notice here that no trial for felony can be had except in the presence of the prisoner. But in cases of misdemeanour, after the defendant has pleaded, the trial may go on, though he is absent, as from illness.

....

When the prisoner has pleaded not guilty, the record is made up, both parties [Note - he means prosecution and defence] being brought to an issue, and both putting themselves upon their trial by jury."

So Tumblety would have been expected to plead at the arraignment after the Grand Jury had found a true bill on 19th November.

Harris earlier says what will happen if the defendant has not surrendered to bail:

"If, however, an indictment has been found in the absence of the accused, and he is not in custody and has not been bound over to appear at the assizes or sessions, then process must issue to bring him into court. It is contrary to the policy and humanity of the English law to try an indictment in the absence of the accused"

That process involves the certificate of indictment and/or bench warrant, both of which, in Tumblety's case, only happened following the December sessions.

For me, the only thing that makes sense of it all - including the fact that Tumbelty's Counsel made an application on 20 November, which must have been on instructions, and the judge respited the recognizances but did not estreat them and allowed an adjournment - is that Tumbelty was claiming to be too ill to attend the Old Bailey on 19/20 November and requested an adjournment on this basis, which was granted. The trial could not have taken place in his absence because he had not pleaded.

The way I see it is that, having been released from prison on bail on Friday 16 November, this did not allow him enough time to plan his escape before he was required to attend the Old Bailey on Monday 19 November so he needed to buy a bit more time which he did by using his medical knowledge to fake illness sufficiently to fool respectable doctors and secured an adjournment. Then he moved fast and decisively and got himself to Le Havre on 24 November. All being well the police wouldn't even have known he was missing until 10 December but clearly his escape was discovered before this - although, of course, he was lucky and managed to get clean away.