An indictment against a man for that "he In larceny.. feloniously took and carried away goods and chattels of another," without shewing what is certain, as one horse, one ox, or the like, is not good.

Also the number of things stolen must be ex- Number of pressed in the indictment; for it is not suffi-things stolen cient to say feloniously did steal sheep, without expressing their number.

ditto.

And the value of any thing stolen must also value of be set down in the indictment, that it may appear whether it be grand, or petit, larceny.*

Figures to express numbers are not allowable Figures not in indictments, but numbers must be expressed admissible. in words; except where any instrument is to be set out in an indictment, for in that part the transcript must be an exact copy.†

be stated by

way of reci

6. The fact itself, and the nature of it, must Facts not to be set out precisely, positively, and substantively, and not by way of recital, as with a tal. whereas; and it must expressly allege every thing material in the description of the sub-› stance, nature, and manner of the crime, for no intendment shall be admitted to supply a defect of this kind. Thus, murder must be laid to be committed with malice aforethought, for without that allegation, it is not murder; robbery must be stated to be done feloniously; housebreaking in the night, burglariously, &c.

*Hale's Hist. 182.-Lamb. 497.

† 2 Hale's Hist. 170.-Cro. Cir. Comp. 94.

statute,

Offences by Also an indictment, grounded upon an offence made by act of parliament, must, by express words, bring the offence within the substantial description thereof; and those circumstances mentioned in the statute to make up the offence shall not be supplied by the general conclusion, against the form of the statute. And so it is, where an act of parliament ousts clergy in certain cases, for though the offences themselves were all at common law, yet as they were at common law within clergy, the parties, if convicted, shall not be ousted of clergy unless these circumstances, as, of malice aforethought, or in or near a highway, &c. be expressed in the indictment.*

But there is no necessity in any indictment on a public statute to recite such statute, for the judges are bound ex officio to take notice of all public statutes.

Yet if the prosecutor take upon him to do it, and materially vary from a substantial part of the purview of the statute, and conclude against the form of the statute, he vitiates the indict

ment.

But no advantage can be taken of a variance from any part of a private statute, without shewing it to the court in a proper manner; because otherwise such statute shall be taken to be as it is recited.†

* 2 Hale's Hist. 170. + 2 Hawk, c 25.

7. As to the conclusion. Regularly every Conclusion. indictment ought to conclude against the Peace of our Lord the King, his crown and dignity, and therefore an indictment without such con. clusion is insufficient, though it be but for using a trade, not being an apprentice; for every offence against a statute is contra pacem, and ought so to be laid.

And if a man be indicted for an offence supposed to be committed in the time of a former King, and it conclude against the peace of our Lord the now King, it is insufficient; for it must be supposed to be done against the peace of that King in whose time it was committed

But if an offence be supposed to be begun in the time of one King, and continued in the time of his successor (as a nuisance,) it must conclude against the peace of both Kings, or else it is insufficient.*

which are

It was formerly holden, that no indictment Offences at grounded on a statute, and concluding against common law the form of the statute, could be maintained as also offences an indictment at common law, if it were not by statute. maintainable as an indictment on some statute, because it appears that the prosecution is grounded on a foundation which will not support it: but the law is now taken to be otherwise; and accordingly it hath been adjudged,

* 2 Hale's Hist. 189.-3 Burr. R. 1903.-Cro. Cir. Comp. 94.

that on a special indictment on the statute of Stabbing, the defendant may be found guilty of general manslaughter at common law, and the words "against the form of the statute" rejected as senseless.

But it is agreed, that a judgment on a statute shall never be given on an indictment which doth not conclude against the form of the statute; and therefore if the fact indicted bé an offence prohibited by statute only, and the indictment conclude not "against the forni of the statute," no judgment can be given upon it; for though an indictment, which is redundant, may be helped by rejecting what is senseless, an indictment that is defective, in a material part, can be no way supplied.*

Having thus gone briefly through the component parts of an indictment, so far as to give unexperienced persons some general notion of its construction, it is only necessary further to Every man observe, that although the offences of several must answer persons cannot but be several, because one for his own offence. man's offence cannot be another's, but every man must answer for himself; yet if it wholly arise from a joint act which is in itself criminal, as where several join in keeping a gaminghouse, or in deer-stealing, or maintenance, extortion, or the like, the defendants may be indicted jointly and severally, as that they and

* 2 Hawk. c. 25.

each of them did so and so, or jointly only, for it sufficiently appears, that if all are joined in such act, each must be guilty; and therefore some of them may be convicted, and some acquitted.

But where the offences arise from a joint act Joint acts, which in itself is not criminal, but may be so by reason of some personal defect peculiar to each defendant, as where divers followed a joint trade, for which the law required a seven years apprenticeship, in which case each trader's particular defect, and not the joint act, made him guilty, it was most proper to indict them severally, and not jointly, because each man's offence was grounded on a defect peculiar to himself.

And for this reason indictments have been quashed for jointly charging several defendants for not repairing the streets before their houses, or for neglecting a day of fasting appointed by proclamation; and this is agree able to the rule of law as to bringing actions on penal statutes, wherein several defendants shall not be joined, except it be in respect of some one thing in which all are jointly concerned.*

After this general explanation, the few following specimens of the actual construction of indictments on some of the most common occa, sions may suffice.

* 2 Hawk. c. 25..