poifon, yet it maintains the indictment, for the kind of death is the fame. 2. Hale's Hift. 185.

It ought alfo to be fhewn in what hand the offender held the fword or inftrument. 2 Hale's Hift. 185.

And regularly it ought to fet down the value of the fword or other weapon, or else fay that it is of no value; for the weapon is a deodand forfeited to the king, and the township shall be charged for the value, if delivered to them; but this feems not to be effential to the indictment. 2 Hale's Hift. 185.

And from this certainty required in indictments, it hath been adjudged, that an indictment for burglary is infufficient, if it do not fhew that it was done in the night time. Cro. Eliz. 483.

Therefore the time must be expreffed in the indictment, that is to fay, it must be stated that the offender about the bour of in the night of the fame day, feloniously and burglariously did break and enter. 2 Hale's Hift. 179.

Also an indictment charging a man disjunctively is void; as that he murdered or caufed to be murdered; beat caufed to be beat; forged or caused to be forged; for here are diftinct offences, and it appears not, of which of them the indictors have accufed the defendant. 2 Hawk, c. 25. f. 58.

Alfo an indictment accufing a man in general terms, without afcertaining the particular fact laid to his charge, is infufficient; for no one can know what defence to make to a charge which is uncertain, nor can plead it in bar or abatement of a fubfequent profecution; neither can it appear that the facts given in evidence against a defendant on fuch a general accufation are the fame of which the indictors have accufed him; nor can it appear judicially to the court, what punishment is proper for an offence fo loofely expreffed. 2 Hawk. c. 25. 59.

Hence, if an indictment against a man be for that he is a common thief, or common champertor, confpirator, common malefactor, or common robber, it cannot be good, because every indictment ought to contain the particular matter wherein the offence was committed. 2 Hale's Hift. 182.

But common barretor and difturber of the peace of our lord the king, &c. is good, becaufe barretry is an offence known in law, and confifts of divers particulars"; and the

9 But though the indictment is good in a general form with these words, yet it has always been held that the profecutor must give the defendant notice, before the trial, of the particular inftances of the offences that are meant to be proved. I Term, Rep. 754. See also titlę BARRETRY.

reft

reft that is added thereunto are but aggravations of the offence, for barretry itself is a crime. 2 Hale's Hift.

182.

Alfo an indictment against one for being a common fcold is good without fetting forth the particulars. 2 Hawk. c. 25. S. 59

Nor is it neceffary to prove the particular expreffions used, it is fufficient to prove generally that the is always (as the report fays) fcolding. 1 Term. Rep 754

An indictment against a man for that he felonioufly took and carried away goods and chattels of another, without fhewing what in certain, as one horfe, one ox, or the like, is not good. Lumbarde 495. 2 Hale's Hift. 182.

Alfo the number of things ftolen must be expreffed in the indictment; for it is not fufficient to fay feloniously did Atal beep, without expreffing their number. 2 Hale's Hift. 182.

The value of any thing ftolen muft alfo be fet down in the indictment, that it may appear whether it be grand or petit larceny. Lambarde 497. 2 Hale's Hift. 183.

And the fame certainty is required in an indictment for goods, as in trefpafs for goods, and rather more certainty; for what will be a defect of certainty in a declaration will be much more defective in an indictment. 2 Hale's Hift. 183.

But Harkins fays that it feems questionable, whether it be needful to fet forth the value of the goods in an indictment of trefpafs for any other purpose than to aggravate the fine. 2 Hawk. c. 25. f. 75.

The word unlawfully has been adjudged not to be neceflary in an indictment for a riot, becaufe the fact indicted appears to be unlawful; and the fame may be faid to all other indictments at common law: but if a statute, in defcribing the thing prohibited, ufes the word unlawfully, an indictment thereon is not good without it. 2 Hawk. 6. 25. /. 96.

At common law the words with force and arms were neceffary in indictments for offences which amount to an actual disturbance of the peace, as refcoufes, aflaults, and the like, but it feems that they were never neceflary where it would be abfurd to use them; as in indictments for confpiracies, flanders, cheats, escapes, and fuch like; or for nuifances in the defendant's own ground. 2 Hawk. c. 25. f. 90.

But however material these words might have been by common law, yet now it is enacted by 37 Hen. 8. c. 8, that the words force and arms, viz, with clubs, knives,

C4

bows

As to the fact itself and the nature of it.

bows and arrows, fhall not of neceffity be put in any indictment or inquifition, nor fhall the parties indicted have any advantage in this refpect by writ of error, plea, or otherwise. 2 Hawk. c. 25. f. 90.

Yet fince this ftatute, exceptions to indictments of trefpafs, and fuch like, for want of the words with force and arms, where they have not been implied by other words, as with a strong hand or the like, have fometimes prevailed; and the neceffity of them is faid to be owing to this, that without them there can be no capiatur entered, nor fine to the king. 2 Hawk. c. 25. f. 91. 2 Levinz. 221.

Yet, fays Hawkins, they have been often over-ruled, and it is not easy to fhew how they ever could prevail fince the faid ftatute, confiftently with the manifeft purport of it: however, it is certainly fafe and advifeable to make use of them when they are proper and pertinent, if it be to no other purpose than to aggravate the offence. 2 Hawk. c. 25. f. 90. 3 Bac. Abr. 109.

6. As to the fact itself, and nature of it.] An indictment. muft lay the charge against the defendant pofitively, and not by way of recital, as with a whereas; and it must exprefsly allege every thing material in the defcription of the fubftance, nature and manner of the crime; for no intendment fhall be admitted to fupply a defect of this kind. 2 Hawk.c 25./.60.

Therefore if an indictment of murder want the words of malice afore thought, it is no anfwer that it hath the words feloniously murdered, which imply as much. 2 Hawk. c. 25. f. 60.

So if any indictment of death want an exprefs allega tion, that the party received the hurt laid as the caufe of his death, and alfo that he died thereof, no implication will help it, 2 Hawk. c. 25. f. 60.

Alfo if an indictment for a felonioufly breaking of prifon, and commanding J. S. there imprifoned, to efcape, do not expressly allege that J. S. did efcape, it is no anfwer that it is fully implied in calling the offence a felonious breaking. 2 Haauk. c. 25. f. 60.

of an

It is also a certain rule, that if one material part indictment be repugnant to another, or if the fact as laid. be impoffible or abfurd, the indictment is void; as where one is indicted for having forged a writing, in which A was bound to B, which is impoffible if the writing were forged; or for having diffeifed J. S. of land, wherein it appears, by the indictment itfelf, that he has no freehold ; or for having entered peaceably on J. S. and then and there forcibly diffeifed him, or for having diffcifed him of

land

land then being, and for ever fince continuing to be, his freehold; or for having murdered J. S. at B where by the indiament it appears that J. S. was only wounded at B, and died at C; or for felling iron with falfe weights and meafures, which is not only abfurd, as fuppofing that iron could be fold by measure, but inconfiftent, in fuppofing that it was fo fold, and yet at the fame time fold by weight; or for being abfent from church fix months, between fuch and fuch a time, which appears to have contained only the fpace of eleven days; or for feloniously cutting down trees, &c. Yet where the fenfe is clear a fmall impropriety may be difpenfed with; as where one is indicted for having mowed one acre of hay, which is faid to be fuffieient, and yet that which was mowed could 'not, at the fame time of the mowing, in ftrictnefs be called hay, but grafs only. 2 Hawk. c. 25. f. 62.

Alfo a repugnancy in an indictment in fetting forth the offence of the acceffary, is as fatal as it is in fetting forth that of the principal; as where an indictment of death having laid the ftroke on one day, and the death at another, charges the acceffary with having abetted the principal at the time of the felony and murder only; for the time of the death, and confequently the murder, being fubfequent to the ftroke, it is repugnant to allege that the defendant abetted the ftroke by being prefent at the time of the death. 2 Hawk. c. 25. S. 63.

But where feveral are prefent and abet a fact, and one only actually does it, an indictment may either lay it as done by them all, or fpecially as done only by the one and abetted by the reft. 9 Co. 67. Plow. 97.

But if it barely charge a man with having been prefent, it is void; becaufe a man may be prefent innocently, and fhall not be prefumed to have been a party, where no circumstance is found that makes him fo. 2 Hawk. c. 25. J. 64.

Alfo an indictment of a conftable for having voluntarily and felonioufly fuffered a perfon arrefted by him on fufpicion of felony to efcape, without fhewing what the felony was, and that it was actually committed, is faid to be void by the uncertainty: but an indictment for knowingly fuffering perfons convicted of felony to efcape, is faid to be good, without finding exprefsly what the felony was, or that it was committed, if the record of conviction be fet forth with convenient certainty; for that fhews what the felony was, and that it was committed. 2 Hawk, 6. 25. f. 66.

And Hale fays, that figures to exprefs numbers are not allowable

allowable in indictments; but numbers must be expressed in words 10. 2 Hale's Hift. 170.

ΤΟ

Alfo an indictment, grounded upon an offence made by act of parliament, must, by exprefs words, bring the offence within the fubftantial description thereof; and thofe circumftances mentioned in the ftatute to make up the offence fhall not be fupplied by the general conclufion, against the form of the Itatute. 2 Hale's Hift. 170.

And fo it is, where an act of parliament oufts clergy in certain cafes, as murder, of malice afore-thought; robbery, in or near a highway; stabbing one not having ftruck first, nor having a weapon drawn; for though the offences themfelves were at common law, yet as they were at common law within clergy, the parties, if convicted, fhall not be oufted of clergy unlefs thefe circumstances, as, of malice afore-thought, or in or near a highway, &c. be expreffed in the indictment. 2 Hale's Hift. 170.

But there is no neceffity in any indictment on a public ftatute to recite fuch ftatute, for the judges are bound ex officio to take notice of all public ftatutes. 2 Hawk. c. 25. f. 100.

Yet if the profecutor take upon him to do it, and materially vary from a fubftantial part of the purview of the ftatute, and conclude against the form of the ftatute, he vitiates the indictment, because it judicially appears to the court, that there is no fuch foundation for the profecution, as that whereon it is exprefsly grounded. 2 Hawk. c. 25. f. 101.

But no advantage can be taken of a variance from any part of a private ftatute, without fhewing it to the court in a proper manner; because otherwife fuch statute shall be taken to be as it is recited. 2 Hawk. c. 25. S. 103.

It seems alfo to be agreed, that a mifrecital of the place or day at which the parliament was holden vitiates an indictment. 2 Hawk. c. 25. f. 104.

Alfo a repugnancy in fetting forth the time when a parliament was holden is fatal; as, if a ftatute be recited as made on fuch a day in the first and fecond years of fuch a king; for it is impoffible that one and the fame day fhould be in two years. 2 Hawk. c. 25. S. 104.

It feems alfo that the mifrecital of the title of a statute is fatal. 2 Hawk. c. 25. f. 104.

to This rule does not hold in all cafes; as for inftance, bills, receipts, and the like, which always contain figures, are fet put in indictments for forgery as they are, viz. the indictment states the receipt thus- bich faid receipt for money fo falfely made, forged, and counterfeited, was, and is in the words, letters, figures, and cypher following, to wit—1777, June 16, bank notes, co 3210.—Crown Cir. 94.

But