Where an indictment has been removed into the Court of King's Bench by certiorari, if a case be made out which shews that the justice of the case requires it, the court will direct the trial to be had in the next adjoining county (b). As in the case of an indictment against a county for not repairing a bridge, where, if the indictment were not removed, part of the defendants would be the jurors (c). When this alteration is made, the venue remains as before (d). By the stat. 38 G. 3. c. 52. if the venue in any indictment or information be laid in the county of any city or town corporate, the court may, upon the application of either party, (with some exception,) direct the issues joined to be tried by a jury of the county next adjoining. (e). (b) 2 Str. 874. 4 East, 210. Clift. Ent. 741. 6 T. R. 194. This is done upon a suggestion entered upon the roll by leave of the court, that a fair and impartial trial cannot be had in the proper county, 7 T. R. 735. But as this suggestion is not traversable, the court will require a strong case to be made out before they will allow it to (c) 6 T. R. 194. (e) The applicant must enter into a recognizance in the sum of £40. to pay the entire costs. See the stat. 51 G. 3. c. 100. as to the sentence in such case. 31 CHAP. II. Of the Joinder of Parties and Offences. I. Joinder of Defendants, p. 31 to 38. II. Of Offences, p. 38 to 42. III. Of Defendants and Offences, p. 42 to 44. It is next to be considered, what parties are to be selected as the objects of the charge; and, at the same time, it will be convenient to inquire, what offences may, in the same indictment, be charged against the same or different defendants. It seldom happens that an indictment is defective for want of including a sufficient number of parties charged with the offence, since, technically speaking, torts are several in their nature; and where several join in the same criminal act, each is severally amenable to justice for the consequences. And even where a duty is thrown upon several, each individual, so bound, is responsible for criminal omissions, as well as for criminal acts (a). There are, however, some exceptions to this rule: thus, an indictment for a conspiracy cannot charge the offence against one only, for the very nature and essence of the crime exclude the idea of its commission by a single individual (b). But the indictment may allege that the defendant, together with other persons, committed the offence. (a) R. v. Holland, 5 T. R. 12 Mod. 262. Com. Dig. In607. formation. D. 7. Salk. 593. (b) Str. 193. R. v. Sudbury, The same observation is applicable to an indictment for a riot (c), where the offence must be alleged to have been committed by more than one. On the other hand, an indictment may be defective for charging too many, as where an indictment for concealing the death of a bastard child, alleged the presence of an accomplice (d). Where a duty is thrown upon a body of people, as the inhabitants of a county, or of a particular parish, the indictment must not be confined to any smaller class (e) or subdivision. It was once indeed holden, that where a parish is situated in two counties, and a road in part of the parish within one of the counties is out of repair, the indictment ought to be laid against the division of the parish which lies in that county (f); for the court thought, that if this were not allowed, there would be a failure of justice; but it was afterwards considered, that the doctrine was not tenable, and was founded in a mistake, since the whole parish might, by proper measures, be punished for the default (g). With respect to the joinder of several defendants, in respect of the same or different offences, it may be con→ sidered, 1. When several may be jointly indicted in respect of the same offence. 2. What offences may be charged against the same de fendant in the same indictment. 3. How far different persons may be charged in the same indictment with different offences. (c) Ib. Co. Litt. s. 431. P. C. 229. (e) 5 T. R. 498. (f) R. v. Weston, 4 Burr. 2507. 5 Burr. 2700. (g) 5 T. R. 498.; i. e. by removing the indictment into the Court of K. B. 1. The rule seems to be well established, that.several may be jointly indicted for offences arising WHOLLY out of the same joint act or omission. Thus in the case (h) of obtaining money under false pretences, if several defendants act in concert together, though the pretence be conveyed by words spoken by one of them, yet they may all be jointly indicted under the statute (i). So several persons have been convicted under the Black Act for a shooting at the prosecutor by one of them, and though they were all jointly charged with the single act, the indictment was holden to be good by all the judges (k). So where several join in a conspiracy to give an untrue verdict (), or join in a suit in the admiralty on a contract on land (m), or commit a joint trespass (n) upon two persons, or are jointly concerned in the publication of the same libel (o). So the husband and wife may be joined for the same treason, murder, trespass, or nuisance (p). So 98. (h) R. v. Young, 3 T. R. under the coercion of her hus (i) 30 G. 2. c. 24. (k) See the Coalheavers' case, Leach, 76, 576, 396. and 3 T. R. 105. (4) 2 Haw. c. 25. s. 89. (m) 2 Haw. c. 25. s. 89. (n) 1 Salk. 384. R. v. Benfield, 2 Burr. 984. R. v. Clen don, Str. 870. contra. (0) 2 Burr. 984. (p) Salk. 385. Kel. 31. In burglary and other felonies, other felonies, except murder, if the wife be present, she is presumed to act D band, Kel. 31. But an indictment may be good, though it allege that the husband and wife jointly committed any other felony; for the coverture does not warrant more than a prima facie presumption, that the wife acted under control, See 1 Hale, 516. and R. v. Hughes, &c. Russel, 1478. And the husband may be convicted and the wife acquitted, upon the presumption of her husband's coercion, See 27 Ass. 40. Fitz. Coron, 160, 2. E. 3. Staunf. P. C. f. 26, 1 two may be jointly indicted for extortion (q), or for the omission of a joint duty (r), for the joint keeping of a gaming-house (s), the unlawful hunting and carrying away of deer (1). So two may be jointly convicted of maintenance (u). But in all such cases, with the exception of conspiracy, riot, &c. though several defendants be jointly indicted, yet each might have been severally charged; and the rule is the same where a duty is thrown upon a body of persons, for each is severally liable for omissions as well as acts (x), and consequently, though several be charged jointly in the same indictment, some may be convicted and the rest acquitted, for the law looks upon the charge as several against each (y). And the rule holds, though the parties concurring in the same act, be guilty of offences which differ in degree. Thus if a wife join with a stranger in the murder of her husband, they may be jointly indicted, though the wife be guilty of petit treason, the stranger of murder only (≈). And the offence may be alleged to have been committed jointly by all whom the law considers as princi Kel. 37. 1 Hale 45. 516. East's P. C. 559. 1 Hale, 45, 46. Kel. 37. The husband and wife were charged in the same indictment and convicted; the wife as a principal felon, the husband as an accessory before the fact, R. v. Morris and his wife, Leach. 1096. The wife may be convicted in a summary way, before two magistrates, without the husband, R .v. Crofts, 2 Str. 1120. (q) 1 Salk. 382. (s) 2 Haw. C. 25. s. 89. 10 Mod. 335. 2 Hale, 174. (t) 2 Haw. c. 25. s. 89. (y) 2 Haw. c. 25. s. 89. |