bourer is not a good addition for a woman, and an indictment will be quashed upon exception to such addition. Reg. v. Franklyn, 2 Ld. Raym. 1179. Widow, or singlewoman, or (as some say) wife of such-a-one, Widow, &c. are all of them good additions of the estate or degree of a woman; but no such-like addition is good for the estate and degree of a man. Also spinster is a good addition of a woman. 2 Haw. c. 23. § 111. Citizens and burgesses are too general for additions within this Citizens. act. 2 Inst. 668. Or mystery.] This includeth all lawful arts, trades, and occu- Mystery. pations, as tailor, merchant, mercer, parish-clerk, school-master, husbandman, labourer, and the like. 2 Inst.668. But servant, groom, or farmer, are not additions within this act, Servants. because they are not of any mystery. And chamberer, butler, pantler, or the like, are additions of offices, and not of any mystery or occupation. 2 Inst. 668. Nor are the following additions sufficient; extortioner, maintainer, thief, vagabond, heretic, and such like. 2 Haw. c. 23. $115. If a man hath divers arts, trades, or occupations, he may be which shall be named by any of them; but if a gentleman by birth be a trades- set forth of two man, he shall not be named by his trade, but by the degree of additions. gentleman, because it is worthier than the addition of any mystery. And in general a man shall be named by his worthiest title of addition. 2 Inst. 668. 669. In case of an alias dictus, such addition must be applied to the Alias dictus. first name; for if it be applied to that which comes under the alias dictus only, and not to the first name, the fault will be fatal; and it is so great a fault to put no addition to the first name, that where several are indicted, such an omission, in respect of one of them, makes the indictment vicious as to all. 2 Haw. c. 25. § 70. Semple's case, 1 Leach, 420. And of the towns or hamlets.] If there be two towns in a Addition of county of the same principal name, with different additions to place. distinguish them from one another, as Great Dale and Little Dale, or Upper Dale and Lower Dale, and the defendant named only of the principal town without any addition, as of Dale only, the defendant may plead that there are two Dales in the same county, and none without an addition. But if there be two towns of the same name in a county, without any addition to distinguish them, it may be sufficient in such case to name the defendant generally of either of such towns, without adding any thing to distinguish it from the other. 2 Haw. c. 23. § 121. 1 Chitt. Crim. L. 209. If the defendant live in a hamlet of a town, it is said to be in the election of the party to name him either of the hamlet or of the town. 2 Haw. c. 23. § 122. But the addition of a parish, if there be two or more towns in it, is not good; but if there be but one town, the addition of parish is good; and a parish shall be intended to contain no more than one town, unless the contrary be shewn. 2 İnst. 669. 2 Haw. c. 23. § 120. Hamlet. Parish. The addition of the place of habitation of a wife is sufficiently of a wife. shewn, by shewing that of the husband; because it shall be Place. How writ shall abate for want of addition. Defendant must take the exception, in time. Plea to plea of misnomer. Second indictment. intended that the wife lives where the husband does. 2 Haw. Or places.] If the defendant live in a place known by a special name, and lying out of any town or hamlet, he may be well named of such place: but if he live in any place known within a town or hamlet, it is said to be safest to name him of the town or hamlet. 2 Haw. c. 23. § 123. Of which they were or be.] The addition of the estate, degree, or mystery, ought to be as the defendant was of at the day of the indictment brought, and not late of such a degree or mystery; but it is a good addition to name the defendant late of such a town or place, because men do often remove their habitation. 2 Inst. 670. So in the case of Lord Balmerino, after the rebellion in the year 1745, the indictment charged that Arthur Lord Balmerino, late of the city of Carlisle, in the county of Cumberland; did so and so; Lord Balmerino objected that this was no title belonging to him; upon which the Lord High Steward informed him, that these words were not made part of his title, but only an addition of place which the law for good reasons requires to be inserted by way of description of defendants in all indictments, and it is most commonly taken from that place where the crime is by such indictment charged to have been committed. Lord Balme rino's Trial, 18 Howell's St. Tri. 461. Shall be void.] This being a judgment in law, is interpreted to be made void by a writ of error, or by the plea of the party com ing in upon a capias utlagatum; for though the statute saith they shall be void, yet they are but voidable by a writ of error or plea 2* Inst. 670. By the exception of the party.] But if a trader be sued by his degree, the writ shall not abate, unless he shew that he has a higher degree. Horsepool v. Harrison, 1 Str. 556. Smith v Mason, 2 Str. 816. 2 Ld. Raym. 1541. So, if the defendant appear upon process, and plead, taking no advantage thereof by exception, he hath lost the benefit hereof: but it seemeth that the bare appearance of the party, without plea, doth not salve the want of a good addition. 2 Haw. c. 23. $ 125. To a plea of misnomer (which may be pleaded ore tenus) to an indictment, the clerk of arraigns may, in behalf of the crown, reply that the prisoner is known as well by the one name as the other; and if the jury find for the crown, the prisoner may plead over to the indictment. Dean's case, 2 Leach, 476. A misnomer of a surname may also be pleaded to an indictment, as that he was always called and known by the surname of Shakespeare, and not by the name of Shakepear. R. v. Shakespeare, 10 East. 83. But if an indictment of a capital crime be abated for a misnomer of the defendant's christian name, the court will not dismiss him, but cause him to be indicted de novo by his true name, and arraign him again on such new indictment: for regularly a defendant shall not be dismissed for an insufficiency in an indictment, or an appeal, for a capital crime; but as he that pleads a misnomer of either his surname or christian name must in the same plea set forth what his true name is, he thereby utterly concludes himself, and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. 2 Hale, 176. Anciently, if a plaintiff gained a new name of dignity, hanging Plaintiff obtaina writ, he made it abateable; but this inconvenience was remedied ing a dignity. by 1 Ed. 6. c. 7. § 3. by which it is enacted, That if any plaintiff, in any manner of action, shall be made a duke, archbishop, marquis, earl, viscount, baron, bishop, knight, justice of either bench, or serjeant-at-law, depending the same action, such action for such cause shall not be abateable or abated. forth. In indictments of treason, felony, &c. against the greater How the addinobility, (dukes, marquises, earls, viscounts, and barons,) the tion shall be set estate and degree is named first, and after the town and county: as, Edwardus Dux de Buckingham nuper de N. in com' Glouc'. And so it is when one is named of a city, which is a county of itself, the like order is observed. J. S. pannarius de London in com' civitatis London. But in case of the lesser nobility, and all under them, the town and county are named before the addition. 2 Inst. 669. Also an indictment naming the defendant by two christian names is not good, as where one was indicted by the name of Elizabeth N. alias Judith H. 1 Ld. Raym. 562. In the county aforesaid.] If there be two counties named, one of the county. in the margin, and another in the addition of any party, or in the recital of an act of parliament, the fact laid at such a place in the county aforesaid vitiates the indictment, because two counties are named before, and therefore it is uncertain to which it refers. Cro. Cir. c. 36. See R. v. Holbeck in Leeds, ante, Sect. ix. 1. If several persons be indicted for one offence, misnomer or want of addition of one quashes the indictment only against him, and the rest shall be put to answer; for they are in law as several indictments. 2 Hale, 177. And it is the common practice, where an indictment is insufficient, while the grand jury is before the court, to amend it by their consent in a matter of form, as the name or addition of the party, or the like. 2 Haw. c. 25. § 98. Not having God before his eyes, but being moved and seduced by the instigation of the devil.] I do not find it asserted by any authority that these words are necessary in an indictment. On the 3. Of the Allegation of Time, &c. day of in the Misnomer of one, where several are joined. year of the reign, Time. &c.] No indictment can be good, without precisely shewing a certain day of the material facts alleged in it. 2 Haw. c. 25. § 77. And if the offence be done in the night, before midnight, the Night. indictment shall suppose it to be done in the day before; and if it happen after midnight, then it must say it was done the day after. Lamb. b. 4. c. 5. p. 492. Although the day be inserted, yet if the year is not likewise Year. inserted, the indictment is insufficient. 2 Hale, 177. It is most regular to set forth the year, by shewing the year Year of the of the king; yet this may be dispensed with for special reasons, king. Year set out by inference. The day. Adtunc & ibidem. The hour. if the very year be otherwise sufficiently expressed. 2 Hale, 177. 1 Chitt. Crim. L. 217. And if it say, on such a day last past, without shewing in what year, that is good enough; for the certainty may be found out by the style of the sessions. Lamb. 491. But though the day or year be mistaken in the indictment, yet if the offence were committed in the same county, though at another time, the offender ought to be found guilty: but then it may be requisite, if any escheat or forfeiture of land be conceived in the case, for the petit jury to find the true time of the offence committed; and, therefore, it is best in the indictment to set down the time as truly as can be, though it be not of absolute necessity to the defendant's conviction, 2 Hale, 179. If the day laid be uncertain or impossible, or if it make the indictment repugnant to itself, it is void.-But if the day laid be such as may be made certain, or be a day known, it will be good, though not laid expressly. 2 Haw. c. 25. § 77. If divers offences be laid to have been committed on divers days between such a day and such a day, it is utterly bad. 2 Haw. c. 25. § 82. In indictments for assaults there need not be either a repetition of the time, or a reference to it by the word adtunc, as the time first laid will be connected to all the subsequent facts. But in indictments for felony it is otherwise, and especially where the crime consists of a combination of facts: as in murder, which consists of the assault and stroke; and in robbery from the person, and in other cases. 2 Hale, 178. Indictment in the time of one king shall serve in the time of another, and the offender shall be arraigned upon it. 14 Vin. Abr. tit. Indictment. (H. 10.) pl. 5. And this the rather, because the jury are to find the indictment upon their oaths. Dalt. c. 184. But where an indictment charges a man with a bare omission, as not scouring such a ditch, it is said that it needs not shew any time because it affirmeth a present evil. 2 Haw. e. 25. § 79. Upon which ground, namely, because the jury are sworn to present the truth, it is best to lay all the facts in the indictment as near to the truth as may be, and not to say, in an indictment for a small assault (for instance), wherein the person assaulted received little or no bodily hurt, that such an one, with swords, staves, and pistols, beat, bruised, and wounded him, so that his life is greatly despaired of; nor to say in an indictment of an highway being obstructed, that the king's subjects cannot go thereon, without manifest danger of their lives; and the like. Which kind of words, as they are not at all necessary, so they may stagger an honest man upon his oath to find the fact as so laid. At the hour of nine in the afternoon of the same day.] But it is not necessary to mention the hour, in an indictment. 2 Haw. c. 25. § 76., and if it be stated, no exception is allowed to it. Combe v. Pitt, 3 Burr. 1434. Clarke's Ca, 1 Bulstr. 203. Excepting in cases of burglary, where it must be laid, for the purpose of shewing that the offence was in the night-time. In short, every material fact which is issuable and triable must be laid with time and place. It must be laid with a venue for the sake of trial; and wherever a venue is necessary, time must also be mentioned. 5 T. R. 620. With force and arms.] By the 37 H. 8. c. 8. it is enacted, Vi et armis. that whereas it hath been commonly used in indictments to put 37 H. 8. c. 8. in the same words vi & armis, and in divers of the same indictments to declare the manner of the force and arms, viz. baculis, cultellis, arcubus & sagittis, or such like, where in truth the parties had no manner of such weapons at the time of the offence committed, therefore for the future these words or such like shall not of necessity be put in any inquisition or indictment. But yet where such words are proper and pertinent, it is safe and advisable to insert them, if it be to no other purpose than to aggravate the offence. 2 Haw. c. 25. § 91. 4. Of the Allegation of Place. At Appleby aforesaid in the county aforesaid.] No indictment can be good, without expressly shewing some place where the offence was committed, which must appear to have been within the jurisdiction of the courts and laid in a manner free from all repugnancy. 2 Haw. c. 25. § 83. But a mistake of the place will not be material upon the evidence, on not guilty pleaded, if the fact be proved at some other place in the same county. 2 Haw. c. 25. § 84. And it is not sufficient that the county be expressed in the margent, but the vill where the offence was committed must be alleged to be in the county named in the margent, or in the county aforesaid, which seems to be sufficient where but one county is named before; but to be uncertain where a county is named in the body of the indictment different from that in the margent. 2 Hale, 180. 2 Haw. c. 25. § 34. The fact must be laid in some place whence a visne may come ; and a visne may come from a ward, parish, hamlet, burgh, manor, castle, or even a forest, or other place known out of a town: but it cannot come from a thing incorporeal, and therefore not from a liberty. Query, Whether it be now necessary in an indictment for felony to lay a parish within the county? In a case at Monmouth Sum. Ass. 1808, the prisoner's counsel R. v. Phillips, proved that there was no such parish in the county of Monmouth 3 Campb. 77. It was conas the parish of Saint Mary's laid in the indictment. tended on the other side that it is no longer necessary in such an indictment (a) to lay any parish as the jury are to come from the body of the county. Lawrence J. said he would save the point for the opinion of the judges. The prisoner was acquitted on the merits. ap The indictment charged the burglary and larceny to have been committed in the parish of Aldrewas, Com. Staff. Upon cross examination of one of the witnesses for the prosecution, it peared that there was no such parish as Aldrewas within the county of Stafford, the parish in which the offence was committed being Alrewas. Garrow B. held the indictment insufficient and (a) This was on Ld. Ellenborough's Act, 45 G.3. c.58. R. v. Leadbeater, Staf ford Sum. Ass. 1818. MS. |