twelve men of the county, returned to inquire of all offences therein committed. 287 The difference between an indictment and a presentment and inquisition. ib. A grand jury must either find billa vera, or ignoramus for the whole, or the finding is void. 288. s. 2 ib. general prohibitory clause, an indictment will lie; but not if the clause be particular, and specific remedies are appointed. 290. (N. 2) Where a new offence is created, an indictment will lie on a substantive prohibitory clause, although there be afterwards a particular provision and remedy given. ib. An indictment will not lie where a statute creating a new offence is not prohibitory, but only inflicts the forfeiture and specifies the remedy. ib. ib. Where the offence was punishable before the 290 jury find they were stolen, the defendant may be tried, on such finding, for the felony without indictment. So also, if they indorse a bill conditionally, or true as to a different crime than that which the indictment charges, it is void. ib. But where the bill consists of two distinct counts, as riot and assault, they may indorse billa vera as to the one, and ignoramus as to the other. ib. (N. 1) An indictment is so far the king's suit, that the party who prosecutes it is a good witness to prove it. ib. s. 3 No damages can be given upon an indictment even if the king were, by his commission to any new court, so to direct. But if a statute expressly direct that a party shall recover damages by indictment, they But by 25 Eliz. c. 4. &c. proceedings upon the may be so recovered; otherwise they ought mainovre are wholly taken away. 291. (N. 6) to be sued for in an action on the statute. 288 In trespass for goods in the king's bench, if the The king's bench, by virtue of a privy seal, may give to a prosecutor the third part of a fine assessed on a criminal prosecution. ib. And to induce defendants to pay prosecutors their costs, it is the practice to intimate an inclination to mitigate the fine to the king. 289 All crimes of a public nature, all disturbances of the peace, all oppressions, and all misdemeanours of a public evil example against the common law, may be indicted. ib. s. 4 No injuries of a private nature, unless, they some But it is otherwise on the finding of a coroner's way concern the king, can become the subinquest. ject of indictment. Wherever a statute prohibits a matter of public grievance, or commands a matter of public | convenience, an offender is punishable both by action and indictment, unless such a mode of proceeding is expressly excluded. ib. Quare, if the offender has, in an action, been fined to the king, whether he can afterwards be indicted for the same offence. ib. ib. But such a finding, except in a court of criminal jurisdiction, has no effect. ib. Even in the king's bench, on an indictment, if the jury find that some other than the defendant did the fact, yet that other cannot be tried on such finding without being first indicted. ib. ib. A verdict upon a declaration for a misdemean. our in a proper court, will serve for an indictWhere a person may be tried without indictment against the persons found guilty by it. ib. ment upon an appeal not prosecuted. Whether one may be tried at the suit of the king for a capital offence upon the sheriff's return without any indictment. 294. s. 14 No offence against a statute of a private nature A man may be arraigned upon an indictment will bear an indictment. ib. ib. while an appeal is depending. 291. s. 7 to 14 ib. s. 15 Instances of injuries which are not indictable. Who may be indictors, and in what manner they county from that in which the indictment was Other instances where a jury may inquire of found, the defendant shall be acquitted. offences committed out of their county. 301. s. 35 By the common law, if a man had died in one 309. (N) another, he THE FORM OF THE BODY OF AN INDICTMENT. 302. s. 36 309 ib. ib. s. 38 303. s. 39 ib. 310. s. 55 ib. county of a stroke received in could not be indicted in either. But by 2 & 3 Edw. 6. c. 24. where any person Of setting forth THE FACT AS TO THE PRINCIPAL. shall be stricken or poisoned in one county, and die of the same in another, an indictment No periphrasis will supply those words of art may be found in the county where the death which the law hath appropriated for a deshall happen. scription of the offence. So if a fact done in one county prove a nuisance Where no technical words have been adopted, in another, it may be indicted in either. ib. s. 37 the special manner of the whole fact ought to If one guilty of larceny in one county carry the be set forth with such certainty, that it may goods stolen into another, he may be indicted judicially appear to the court that the indictin either. ors have not gone upon insufficient premises. If a man marry two wives, the first in a foreign ib. s. 57. country, and the second in England, he may An indictment for breaking prison without shewbe indicted in England. ing the cause of imprisonment is bad. If a woman be taken by force in one county, An indictment for refusing to be sworn constaand carried into another, and there married, ble after legitimo modo electi, must shew the the offender may be indicted and tried in the manner of the election. second county. ib. s. 40 But if a record be stolen or avoided, &c. partly in one county and partly in another, he cannot be indicted for the felony in either. ib. s. 40 By 26 Hen. 8. c. 6. offences committed in Wales may be inquired of in the next English county where the king's writ runneth. By 28 Hen. 8. c. 15. treasons and felonies committed upon the sea shall be inquired of in such places as shall be limited by the king's commission, in like manner as if done upon land. ib. s. 43 But this statute extends not to offences done in creeks, &c. within the body of a county. 304 ib. An indictment of burglary must have the word "noctanter." ib. An indictment for nuisance for doing that which, in its consequences only, and not in itself, is so, must shew the circumstances which cause the nuisance. 311 But where the thing done is in itself a nuisance, as keeping a bawdy-house, &c. the particular circumstances are not necessary. ib. An indictment for coining alchemy like the king's money, must shew what money: the reason of it. ib. ib. An indictment for perjury not shewing in what manner and in what court the false oath was taken, is insufficient. ib. s. 44 It is necessary, both in indictments and appeals of mayhem and murder, to set forth particularly in what manner the hurt was given. ib. An indictment for extortion colore officii, without shewing for what it was extorted, held good. ib. An indictment for procuring, &c. must shew the false tokens. ih. (N. 1) By 11 & 12 Will. 3. c. 7. accessaries before and 306 Ancient opinions, how high treason done out of VOL. II. 307 An indictment for words against a justice, must shew the words. 312 An indictment charging a man disjunctively, is void, as murdravit vel murdrari causavit, &c. 311. s. 58 Every indictment must charge some particular offence, or else several offences particularly, and certainly expressed, and not with being an offender in general: the reason of this rule. 312. s. 59 Instances in which, upon this ground, indictments have been held too general and insufficient. ib. Anciently, indictment for conspiracy in general was held good, and the general charge of insidiatores viarum et depopulatores agrorum ousted of clergy; but this is remedied by 4. Hen. 4. c. 2. 313 There is no need to name any particular place for its manifest, inconsistency and repugnancy. where the defendant was a barrator. 315, s. 63 An indictment for barratry need not conclude ad An indictment of death laying the stroke at A. nocumentum omnium ligeorum; diversorum is and the death at B. or the stroke on the 1st, sufficient. ib. and the death on the 10th, and then concluding Quare, Whether an indictment of a common that the defendant in such manner murdered scold may so conclude, or whether it must be the party at A. aforesaid, or on the first of May ad commune nocumentum? ib. (N) aforesaid, is repugnant and void. ib. An indictment against one as a common scold An indictment for selling iron with false weights is good without setting out the particulars, for and measures, is inconsistent. ib. the same reasons that such indictment of bar-If an indictment taken on the 13th find that the ratry is good: the reason given. Every charge in an indictment must be laid positively, and not by way of recital, as with a quòd cum, &c. and the want of a direct allegation of any thing material cannot be supplied by intendment. ib. s. 60 ib. An indictment felonicè murdravit cannot amount to murder without ex malitia præcogitata. ib. An indictment of death is bad without an express allegation that the deceased both received and died of the hurt laid; and the want cannot be supplied by any implication. 314 An indictment for breaking prison must aver, that a prisoner for felony did thereby escape. ib. defendant had been absent six months from church, from the first of the same month and year, it is repugnant. ib. An indictment which charges any thing as a felony, which appears to be only a trespass, as with cutting down trees, the Court will not arraign the defendant on it. 316 But the Court will dispense with a small impropriety of expression, as for having moved unam acram fani, when in fact it was grass only and not hay. ib. Of setting forth THE FACT AS TO THE ACCESSARY. ib. s. 63 A repugnancy in setting forth the offence of the accessary is equally fatal as in setting forth that of the principal. It is an incontrovertible rule, “ that in an indictment nothing material shall be taken by intend- If ment or implication." ib. But if, in the first part of an indictment of death, the assault be laid with malice prepense, &c. there is no need to repeat it in the subsequent clause which shews the giving of the wound. ib. So also where it states that one was arrested by virtue of a plaint, &c. the warrant shall be intended a good warrant. ib. Where a warrant is alleged authorising an arrest within the liberties of London, and the indictment lays the execution of it in such a parish and ward of London, without saying they are within the liberties, the Court will intend the parish and ward laid to be within the liberties of London. ib. Where an indictment finds that the defendant, BEING SO and so, committed such a fact, it shall be intended that he was so and so, without any express allegation to that purpose: the reason of it. ib. s. 61 But where an indictment of forcible entry finds that A. disseised B. of such land, existens liberum tenementum of B. it is insufficient; for there is no certain antecedent to which the participle can refer. ib. ib. an indictment of death which lays the stroke on one day, and the death on a subsequent one, charge the accessary with having abetted the fact at the time of the felony and murder only, it is insufficient. ib. Where several are present and abet a fact, and one only actually does it, an indictment may lay it generally, as done by them all; or specially, as done only by one, and abetted by the rest. ib. ib. But an indictment which barely charges a man ib. An indictment against a constable for suffering Upon the subject of nice exception to an indictment there is no general rule. There is a max-How AN INDICTMENT MUST DESCRIBE THE PERim, nimia subtilitas in jure reprobatur; but the application of it is in the discretion of the An indictment that the king's highway in such a Court. place is in decay, through the default of the inhabitants of such a town, is good without naming any person in certain. 315 It is a certain rule, that where one material part ib. No indictee can take any advantage of a mistaken surname in an indictment, as an appellee may in an appeal. ib. Every other misnomer of the defendant, except that of the surname, and also every defective add ition, ib. 318 320. s. 72 priest of D. in the county of C. is good without mentionin his surname. Quære, If an indictment for a wrong done to a person well known describe him only by his name of baptism, without some addition to distinguish him from others of the same name, can be good? ib. An indictment for stealing the goods ejusdam ignoti is good. 321 addition, are as fatal in an indictment as an appeal.. 317. s. 69 A misnomer of the defendant's name of baptism may be pleaded in abatement. The addition of " knight" instead of “baronet"| is pleadable in abatement. If Garter king at arms be not styled Garter in an indictment, it, or the omission of any other name of dignity, is pleadable in abatement. ib. The omission of the defendant's name of baptism is, perhaps, equally fatal. ib. Indictments are within 1 Hen. 5. c. 5. concerning additions, and therefore the omission of those additions which that act requires are equally fatal to an indictment as an appeal, if process of outlawry lie upon it. ib. s. 70 It is a fatal fault to apply such addition to the name which comes under the alias dictus only, If the word "aforesaid" refer with equal unand not to the first name. certainty to two antecedents, the indictment is void. ib. ib. A repugnancy or absurdity in the description of But if the indictment will be good by rejecting It is not material whether any addition be put It is so great a fault to put no addition to the ib. An addition in English was always as good as in Latin. ib. Where several defendants have the same addition, it is safest to repeat it after each of their names. ib. is not necessary, in an indictment of death, to allege that the person killed was "in the peace of God and of our Lord the King, &c. ib. s. 73 HOW THE THING MUST BE DESCRIBED. ib. s. 74 No indictment can be good which wants convenient certainty of this kind. ib. An indictment for forging a lease of certain lands, without naming some one certain parcel, is insufficient. ib. Where the son is of the same name and addition An indictment for stealing the goods and chattels of J. S. without any farther description of them, is void for uncertainty. ib. An indictment for trespass in two closes of meadow or pasture; or for diverting quandam partem aquæ running from such a place to such a place; or for engrossing magnam quantitatem straminis et feni, or dirversos cumulos tritici, &c. &c. &c. without shewing how much of each, is void for uncertainty. with the father, he ought to be distinguished by some further description. ib. What is a sufficient addition of the estate, or degree, or mystery (Vide APPEAL). How the town, hamlet, place, and county, of the defendant, ought to be added (Vide APPEAL). In what cases a defective addition may be salved by the appearance and plea of the defendant (Vide APPEAL.) How OTHER PERSONS MUST BE DESCRIBED. 319. s. 71 They must be described with convenient certainty, so as to enable the Court to impose the proper fine; and to enable the defendant to make his defence, or to plead the indictment in bar to any subsequent prosecution. ib. An indictment for taking divers sums of divers persons for toll, without naming any persons in particular, is naught. ib. Where, in common presumption, it may be very difficult, if not impossible, to know the names of the persons referred to in an indictment, it may be good without naming any of them: instances given. ib. The case of the King v. Wetwang impeached. ib. 322 If an indictment be uncertain as to some particulars only, and certain as to the rest, it is void only as to those which are uncertainly expressed, and good as to the residue. Whether an indictment of larceny be good without expressing to whom the property belonged, if it be for a living thing, &c. ib, It seems questionable, whether the price of the goods be otherwise necessary in an indictment of trespass than to aggravate the fine; or in an indictment of larceny, other than to shew the offence amounted to grand larceny. 323 ib. How AN INDICTMENT MUST STATE TIME AND ib. In many books it is said, that regularly the per- PLACE. sons offended, as well as the defendant, ought By the stat. 56 Geo. 3. c. 73. property stolen to be certainly described in every indictment. S20 from mines may be laid to be the property of A. B. and others his partners, and by 1 and An indictment for stealing quandam peciam panni 2 Geo. 4. c. 102. this provision is extended linei cujusdam J. S. without adding de bonis et to the property of all partners. 323. (N) catallis, is insufficient. ib. It is not necessary to mention the hour in an Wherever the person injured is known to the indictment. 324. s. 76 jurors, his name ought to be put into the in- But no indictment whatsoever can be good withdictment. ib. out precisely shewing a certain year and day An indictment for an assault on John, parish of the material facts alleged in it. ib. s. 77 No defect of this kind can be helped by verdict. ib. An indictment of death laying the assault at a certain time and place, is not sufficient without repeating the time and place in the clause of the stroke. ib. An indictment of death ought as well to set forth the year and day of the death as of the stroke, &c. ib. The words adtunc et ibidem in the subsequent clauses of an indictment are of the same effect as if the year and day mentioned in the former part had been expressly repeated. 325. s. 78 An indictment laying the offence on the Thursday after the day of Pentecost or Utus of Easter in such a year, is good: the reason of it. ib. Where an indictment charges a man with a bare omission, as the not securing such a ditch, no time need be shewn. s. 79 The year of the king may be dispensed with if the very year be otherwise sufficiently shewn. If an indictment charge a man with having done such a nuisance on such a day and year, &c. and on divers other days, it is void only as to the fact on those days which are uncertainly alleged. ib. s. 82. An indictment charging a man generally with several offences at several times, without laying any one of them on a certain day, is void. ib. The particular reason of this rule in extortion. ib. (N. 2.) A conviction of deerstealing, setting forth the offence between 8 and 12 July, &c. is sufficient. HOW THE INDICTMENT MUST SHEW THE PLACE. ib. s. 83 No indictment can be good without expressly shewing some place wherein the offence was committed, which must appear to be within the jurisdiction of the court, and be free from all repugnance. ib. 326 Instances of repugnance in alleging the place. ib. There is no need, in an indictment on a statute setting forth the description which brings the defendant within the purview of it to set forth any place where those things happened. ib. Where a statute makes it high treason for a person born within the realm, and in popish orders, to come into or remain in the kingdom, there is no need to shew in the indictment where he was born. ib. A mistake of the place in which the offence is 328 ib. Such a defect cannot be amended. Where an indictment lays the fact in the plural number against two, and it is found billa vera as to one only, it is good. ib. The word solvet instead of solvat is not fatal. ib. Formerly an indictment wholly in English, was void by 36 Edw. 3. c. 15. But by 4 Geo. 2. c. 26. and 6 Geo. 2. c. 14. all proceedings shall now be in English, &c. except terms of art, &c. 330 Instances where a word which is not Latin would have vitiated an indictment. ib. s. 87 Nothing that can be rejected as surplus and immaterial shall vitiate an indictment. ib. What faults, while indictments were in Latin, were holpen by an Anglicè. 330 WHERE THE OFFENCE INDICTED MAY BE LAID If an offence wholly arise from any such joint act, which in itself is criminal, without regard to any particular personal default in the defendant, the indictment may either charge the defendants jointly and severally, or jointly only. JOINTLY, and WHERE SEVERALLY. 331. s. 89 ib. Instances in which indictments may be joint or several. ib. Though the words of an indictment purport only a joint charge, yet some of the defendants may be acquitted and others convicted; for the law looks on the charge as several against each. ib. But where the offence doth not wholly arise from the joint act of all the defendants, but from such act joined with some personal and particular defect or omission of each, without which it would be no offence, the indictment must charge them severally, and not jointly. 332 Keeping a bawdy-house, unlawful hunting deer, maintenance, or extortion, may be laid either jointly and severally, or jointly only. ib. Several defendants cannot be joined in perjury; but two may be joined in an assault, and in a libel. ib. (N. 1) One indictment against two justices for not enquiring of a riot, or against two persons for speaking the same words, may be maintained. ib. (N) WNETHER THE WORDS " VI ET ARMIS" ARE NEib. s. 90. Whether CESSARY. |