Page images
PDF
EPUB
[ocr errors]

assigned for the prosecution of offenders : as by the statute
7 W. III. c. 3, which enacts, that no prosecution shall be had
for any of the treasons or misprisions therein mentioned, (ex-
cept an assassination designed or attempted on the person of
the king,) unless the bill of indictment be found within three
years after the offence committed (t): and, in case of murder,
the time of the death must be laid within a year and a day
after the mortal stroke was given. The offence itself must
also be set forth with clearness and certainty ; and in some
crimes particular words of art must be used, which are so
appropriated by the law to express the precise idea which it
entertains of the *offence, that no other words, however syno-
nymous they may seem, are capable of doing it. Thus, in
treason the facts must be be laid to be done, “ treasonably,
and against his allegiance ;” anciently, “ proditorié et contra
ligeantiæ suæ debitum ;" else the indictment is void. In in-
dictments for murder, it is necessary to say that the party
indicted “murdered,” not “killed” or “slew," the other ;
which, till the late statute, was expressed in Latin by the
word “murdravit (u).” In all indictments for felonies, the
adverb “feloniously," " felonicé, "must be used; and for
burglaries also, burglariter,” or in English, “burglari-
ously:” and all these to ascertain the intent. In rapes,
the word "rapuit,or “ravished,” is necessary, and must
“ not be expressed by any periphrasis ; in order to render the

(t) Fost. 249.

(u) See vol. III. page 321.

for that any person or persons men- tioned in the indictment or information, is or are designated by a name of office, or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the find. ing of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the in

dictment or information to have had jurisdiction over the offence.” The objections enumerated in this clause are no longer available, either in arrest of judgment, or by writ of error, because it enacts that judgment shall not be stayed, which applies to motions in arrest of judgment; or reversed, which applies to writs of error. But, it seems, that any of these objections will still be available on demurrer, where the prisoner prays judgment in his favour, and if his demurrer is allowed, judgment is neither stayed nor reversed, but given in his favour. See further on this subject, Car. Cr. L. 46, et seq., and the cases there cited.

crime certain. So in larcenies also, the words " felonice cepit et asportavit,“ feloniously took and carried away," are necessary to every indictment; for these only can express the very offence. Also in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature: but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also, where a limb, or the like, is absolutely cut off, there such description is impossible (v). Lastly, in indictments, the value of the thing, which is the subject or instrument of the offence, must sometimes be expressed (9). In indictments for larcenies this is necessary, that it may appear whether it be grand or petit larceny; and whether entitled or not to the benefit of clergy (10): in homicide of

(v) 5 Rep. 122.

(9) An indictment for stealing a sheep, or any other cattle, must lay it to be of some value, for, unless its value exceed twelve pence, the stealing it is not capital; Rerv. Peel, R. & R. C.C. 407. Where value is essential, and in the indictment it is ascribed to many articles collectively, the offence must be made out as to every one of the articles ; for the grand jury have as. cribed the value collectively; Rex v. Forsyth, id. 274. But an indictment for embezzling money, need not specify the exact sum embezzled ; Rex v. Car. son, id. 303. Though it ought to set out specifically some article of the property embezzled, and the evidence should support that statement; Rer y. Furncaur, id. 335; Rer v. Tyers, id.

another, or others. By sect. 15, property belonging to counties, &c., may be laid in the inhabitants, without naming them. By sect. 16, property ordered for the use of the poor of parishes, &c., may be laid in the overseers, without naming them; and materials, &c. for repairing highways, may be laid to be the property of the surveyor, without naming him. By sect. 17, property of turnpike trustees may be laid in the trustees, without naming them. And by $ 18, property under commissioners of sewers may be laid in the commissioners, without naming them. By 7 & 8 Geo. IV. c. 29, $ 21, in indictments for stealing records, &c., it is unnecessary to allege either that the article is the property of any person, or that it is of any value. By sect. 22, a similar provision is made respecting wills. By sect. 44, where the materials therein enumerated are fixed in any square, street, or other like place, it is unnecessary to allege them to be the property of any person. And by sect. 46, in indictments against tenants and lodgers for stealing property from houses or apartments let ta them, the

402.

(10) There are some recent enactments, respecting indictments for larceny, which it seems important to no. tice here. By 7 Geo. IV. c. 64, § 14, “ to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint owners,” the property of partners may be laid in any one partner by name, and

all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand (11). . ,

The remaining methods of prosecution are without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One of these, by the common law, was when a thief was taken with the mainour, that is, with the thing stolen upon him in manu. For he might, when so detected flagrante delicto, be brought into

court, arraigned, and tried, without indictment: as by the [*308] *Danish law he might be taken and hanged upon the spot,

without accusation or trial (w). But this proceeding was taken away by several statutes in the reign of Edward the third (x): though in Scotland a similar process remains to this day (y). So that the only species of proceeding at the suit of the king, without a previous indictment or presentment

by a grand jury, now seems to be that of information.

. III. Informations are of two sorts ; first, those which are jointly by the partly at the suit of the king, and partly at that of a subject;

and secondly, such as are only in the name of the king. The king only: the former are usually brought upon penal statutes, which inflict penal statutes : a penalty upon conviction of the offender, one part to the use stituting these of the king, and another to the use of the informer; and are

a sort of qui tam actions, (the nature of which was explained in a former volume (z), only carried on by a criminal instead of a civil process: upon which I shall, therefore, only observé that, by the statute 31 Eliz. c. 5, no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any

III. Informa. tions are, some

king and the subjcct, and some by the

former are upon penal statutes : the time for in. stituting these is limited.

[blocks in formation]

the name of the

ex officio, by his

common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer : nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence (12).

The informations that are exhibited in the name of the Informations in king alone, are also of two kinds : first, those which are truly king only, are, and properly his own suits, and filed ex officio by his own attorney gene immediate officer, the attorney general : secondly, those in mon informers. which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the king's coroner and attorney in the court of King's Bench, usually called the master of the crownoffice, who is for this purpose the standing officer of the public (13). The objects of the king's own prosecutions, filed ex officio by his own attorney general, are properly such *enormous misdemesnors (14), as peculiarly tend to disturb [*3097 or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tri

*- (12) A qui tam information for pc. nalties under the game laws, is not an information within the meaning of the 48 Geo. III. c. 58, so as to entitle the plaintiff to enter an appcarance and plea, when the defendant himself neg. lects to appear and plead ; Davies, qui tam v. Bint, 5 D. & R. 353.

. (13) Both these kinds of informations appear to stand on nearly the same footing at common law; and the distinctions between them seem to spring chiefly out of the statute 4 & 5 W. & M. c. 18, and the practice which has been adopted since the passing of that Act; sec post, 312

(14) An information will not lic, in any case, for treason, or felony. Informations are of two classes, those against private individuals, and those against magistrates. For the instances

in which informations against private
individuals will lie, see Collyer's Cr.
St., 257, note; 1 Harrison's Dig. 869,
et seq. With respect to informations
against magistrates, see ante, 141, note
(47); 284, note (5). Application
for this latter species of information
must be made promptly. The court
refused an information against a justice
of the peace, for alleged misconduct
in his office, where it appeared that
the supposed criminal acts took place
more than a year before the appli-
cation, although the prosecutor swore
that the circumstances did not come
within his knowledge until just before
the motion; Rer v. Bishop, 2 D. & R.
M. C. 65; 5 B. & A. 612, See the
cases generally in 1 Harrison's Dig.
867, et seq. ; Collyer's Cr. St., 258,
note.

bunal; which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the master of the crownoffice upon the complaint or relation of a private subject, are any gross or notorious misdemesnors, riots, batteries, libels, and other immoralites of an atrocious kind (a), not peculiarly tending to disturb the government, (for those are left to the care of the attorney general,) but which, on account of their magnitude or pernicious example, deserve the most public animadversion. And when an information is filed, either thus, or by the attorney general ex officio, it must be tried by a petit jury of the county where the offence arises : after which, if the defendant be found guilty, the court must be resorted to for his punishment (15).

There can be no doubt but that this mode of prosecution, coeval with the by information, (or suggestion,) filed on record by the king's are confined to attorney general, or by his coroner or master of the crown

Ex officio in formations are

common law:

(a) 2 Hawk. P. C. 260.

(15) If an information, or an indictment for a misdemeanor removed into the court of King's Bench by certiorari, be not of such importance as to be tried at the bar of the court, it is sent down by writ of nisi prius into the county where the crime is charged to have been committed, and it is there tried either by a common or a special jury, like a record in a civil action; and if the defendant is found guilty, he must afterwards receive judgment from the court of King's Bench. But, where an indictment for treason or felony is removed by certiorari, the law upon the subject seems to be fully stated by lord Hale in the two follow. ing sections ; 2 P. C. 41.

“ As to an indictment of felony or treason removed out of the county by certiorari, and the party pleading, the record is sent down by nisi prius to be triod; the judges of nisi prius may upon that record proceed to trial, and

judgment, and execution, as if they were justices of gaol delivery by virtue of the statute 14 Hen. VI. cap. 1.

“But if there were any question upon that statute, yet the statute of 6 Hen. VIII. cap. 6, which extends to all justices and commissioners, as well of gaol delivery as of the peace, enables the court of King's Bench to send to them the very record itself, and by a special writor mandate to command them to proceed to trial and judgment, upon such issue joined ; as they may command the justices, be fore whom the indictment was taken, to proceed to hear and determine the same, if no such issue were joined.” See Sir Myles Stapleton's case, Raym. 376.

If the treason or felony is to be tried at nisi prius under the 14 Hen. VI. c. 1, then the court sends a transcript of the record, and not the record itself; 2 Hal. P. C. 3; 4 Co. 74.-CH:

« PreviousContinue »