:

c. 25, s. 59. So, where an indictment, at the instance of a justice of the peace, charged a defendant that " per diversa scandalosa, minacia et contemptuosa verba abusus fuit, et ipsum in executione officii sui prædicti vi et armis illicite retardavit," and it was demurred to as being too general; on the part of the prosecutor it was admitted that the indictment was bad as to the words, but it was argued that it was sufficiently certain as to the obstruction the Court, however, held it bad as to that also, for it was not sufficient to say generally" retardavit," but the act done should be specially set out. R. v. How, 2 Str. 699. So, where a defendant was convicted on an indictment charging him with having obtained a certain promissory note by false tokens, the Court upon motion arrested the judgment, because the false tokens were not specified in the indictment. R. v. Munoz, 2 Str. 1127. So, an indictment against a constable, charging that "male et negligenter se gessit" in the execution of his office, was quashed by the Court of King's Bench upon motion, as being too general. R. v. Winteringham, 1 Str. 2. see also R. v. Robe, 2 Str. 999. So, an indictment charging a man with being a common defamer, vexer and oppressor; or a common disturber of the peace; or a common deceiver of the king's people, or the like would be bad. 2 Hawk. c. 25, s. 59.2 Hal. 182. see R. v. Brian et al., 1 Ad. & E. 436, n. The only exceptions to this rule are, in the cases of common barrators, and common scolds, in which the particular acts of barratry or scolding need not be stated. 2 Hawk. c. 25, s. 59. And by stat. 7 G. 4, c. 64, s. 21, where the offence charged has been created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.

In the time laid to each material fact, also, uncertainty will be as fatal as in the statement of the facts themselves: and therefore an indictment, charging the owner of a ferry with extorting several sums of money from several persons, between such a day and such a day, was holden void. 2 Hawk. c. 25, s. 82.

Besides uncertainty arising from too great generality of statement, an indictment may be uncertain in other respects, and therefore bad. As for instance, where an indictment charged a miller, in the same count, with having received two separate parcels of barley, of four bushels each, to be ground at his mill, and that he delivered three bushels of oat and barley meal, other and different from the produce of the said four bushels: the indictment was holden bad for uncertainty, as not shewing as to which of the parcels of barley the offence was committed. R. v. Haynes, 4 M. & S. 214.

A charge also in the alternative, charging a defendant with having done so or so, as that he murdered or caused to be murdered, is bad for uncertainty. 2 Hawk, c. 25, s. 58.

It must not be repugnant.] One material part of an indictment must not be repugnant to another, otherwise the indictment will be void. 2 Hawk. c. 25, s. 62. Therefore if an indictment charge a man with forging an instrument by which A. was bound to B., it is bad, for A. could not be bound by the instru ment if it were forged. Id. So, if an indictment for forcible entry charge that A. disseised B., and it appear on the face of the indictment that B. was not seised in fee: it is bad. Id. So, an indictment for selling iron by false weights and measures, has been holden bad for repugnancy, for it was absurd to say that it could be sold both by weight and by measure at the same time. Id. 2 R. Abr. 18.

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46

Technical Words.] In some cases, certain technical words are required, such as « ravish" in indictments for rape, 2 Hawk. c. 25, s. 110," murder" and "of his malice aforethought” in indictments for murder, 2 Hawk. c. 25, s. 60," burglariously" in an indictment for burglary," feloniously” in an indictment for felony, 2 Hal. 184, and the like: in these cases, no other words, nor any periphrasis whatever, would be deemed equivalent to them; and an indictment omitting them would be bad. So in indictments upon statutes, where the definition of the offence contained in them, includes such adverbs as "unlawfully," wilfully," maliciously," or the like, the offence must be charged to have been committed " unlawfully,' wilfully," "maliciously," &c., accordingly; otherwise the indictment would be bad. The word " unlawfully," is not essentially necessary in indictments at common law, 2 Hawk. c. 25, s. 96, although very generally used. The words "with force and arms" were formerly necessary, and are now generally used, in all indictments for offences with force; but they have been rendered unnecessary, by stat. 37 H. 8, c. 8. See 2 Hawk. c. 25, s. 90, 91. And by stat. 7 Geo. 4, c. 64, s. 20, no judgment on any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed, for the omission of the words " appears by the record," or of the words "with force and arms."

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Conclusion.] The conclusion of an indictment at common law is," Against the peace of our Lord the King, his crown and dignity." In misdemeanors, to the person or property of an individual, it is very usual to conclude, To the great damage of the said J. S., to the evil example of all others in the like case offending, and against the peace of our Lord the King, his crown and dignity;" but the above words in italics are unnecessary. The conclusion of indictments for offences against statutes, is, "Against the form of the statute [or 'statutes'] in such case made and provided, and against the peace of our

Lord the King, his crown and dignity." If the offence be committed in the reign of one King, and the offender be indicted in the reign of his successor, the indictment should conclude, against the peace of the late King; R. v. Lookup, 3 Burr. 1901; or if commenced in the reign of one King, and continued into the reign of another, it seems that a conclusion against the peace of both Kings would be good. 2 Hawk. c. 29, s. 93. But if an indictment for an offence committed in the present reign, conclude against the peace of the late King, the word "late" may be rejected as surplusage. R. v. Scott, R. & Ry. 415. Since the many alterations in the crown law, introduced in the late and present reign, it often is a matter of some doubt whether indictments for offences, formerly punishable at common law, and now by statute, should conclude as at common law, or contra formam statuti. But as it has been holden that a conclusion contra formam statuti, to an indictment for an offence at common law, does not affect the validity of the indictment, R. v. Matthews, 5 T. R. 162, the judges have, I understand, intimated to the clerks of the indictments on the different circuits, that it may be advisable to conclude their indictments, generally, as for offences against a statute. This is prudent and safe pleading, where a doubt exists as to its necessity; but where there is no doubt, and the offence is defined and punishable at common law only, a conclusion contra formam statuti would appear slovenly pleading. Formerly, concluding as at common law, instead of contra formam statuti, 2 Hawk. c. 25, s. 116, or concluding contra formam statutorum for statuti, or statuti for statutorum, Id. s. 117, or omitting the contra pacem, ld. s. 92, was bad, even in arrest of judgment, R. v. Thomas Cook, R. & Ry. 176, or upon writ of error. But now, by stat. 7 G. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed for the omission of the words "against the peace," nor for the insertion of the words " against the form of the statute" instead of against the form of the statutes," or vice versa. And where an indictment preferred in the reign of the present King, for an offence committed in the reign of George IV., concluded against the peace of our Lord the King, &c., the judges held the defect to be cured by this statute; R. v. Chalmers, Ry. & M. 352; on the principle, no doubt, that a bad conclusion was the same as

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Joinder of Offences.] There is no objection to stating the same offence, in different ways, in as many different counts of the indictment as you may think necessary, even although the judgment be different, R. v. Galloway, Ry. & M. 234. See R. v. Powell, 2 B. & Adolph. 75, provided all the counts be for felonies, or all for misdemeanors. And even if different felonies or

misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment in point of law upon this ground. In the case of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies, and confine himself to that; but this practice has never been extended to misdemeanors. Per Ld. Ellenborough, C. J., Young v. Rex in error, 3 T. R. 98. The clerks of the indictments on the different circuits, however, have directions not to charge the same party with larceny and receiving the same goods, in the same indictment. See R. v. Galloway, 1 Ry. & M. 234. R. v. Madden, Id. 277. And the judges have, upon more than one occasion, censured the practice of sending two bills before the grand jury, at the same time, against the same person, the one for stealing and the other for receiving the same goods. So where an indictment was preferred for cutting with intent to murder, and another for a common assault, for the same offence, Vaughan, B. censured the practice, and put the prosecutor to his election. R. v. John Smith, 3 Car. & P. 412. See also R. v. Doran, 1 Leach, 538.

Where in one count of an indictment on stat. 37 G. 3, c. 70, the defendant was charged with endeavouring to incite a soldier "to commit an act of mutiny, and to commit traitorous and mutinous practices," it was objected in arrest of judgment, that the count was bad, as charging two offences; but the judges seemed to think it good, for there might be only one endeavour to incite to the two offences; the point, however, was not decided, as there were other counts which were unobjectionable. R. v. Fuller, 1 Bos. & P. 180. There is no objection, however, in charging a defendant, in one count, with assaulting two persons, where the whole forms one transaction. See R. v. Benfield and Saunders, 2 Burr. 984, per Ld. Mansfield, C. J.

Joinder of Defendants.] If several be engaged in the commission of the same offence, they may be joined in the same indictment; or each may be indicted separately. 2 Hawk. c.25, s. 89. See R. v. Kingston, 8 East, 41. R. v. Benfield and Saunders, 2 Burr. 984. And where three were indicted for burglary and stealing in a dwelling-house, and one pleaded guilty, and the others were convicted of the larceny in the dwelling-house only, the judges held that judgment should be entered against the three accordingly. R. v. Butterworth, et al., R. & Ry. 520. Also the principal and accessory, or the principal and receiver, may be joined in the same indictment; or they may be indicted separately.

Indictment, how found.] The grand jury may find as to one count a true bill, and as to another not a true bill. R. v. Fieldhouse, Cowp. 325. And where a bill for murder is presented, they may find it a true bill for manslaughter only. But

the usual practice in this latter case is, for the grand jury to bring the bill back into Court, and upon their informing the judge of their intention, he will order the bill to be altered into one for manslaughter, and to be again laid before them. In other cases, however, the grand jury cannot find a true bill as to part of a count, and reject the remainder. 2 Hawk. c. 25, s. 2.

SECTION 5.-Evidence generally.

1. What must be proved, and by whom.

Where the defendant pleads not guilty, the prosecutor always begins to give evidence, and must prove the defendant to be guilty of the offence charged against him, before the latter can be called upon for his defence. Even where the offence consists wholly or partly of an omission or negative, the prosecutor must prove the negative. And therefore, where upon an indictment for coursing deer in inclosed ground, without the consent of the owner, the question was, whether the onus lay upon the prisoner to prove that he had the consent of the owner: Lawrence, J. held that it did not, but that it was incumbent on the owner to prove the negative; and the owner not being in attendance, the prisoner was acquitted. R. v. Thomas Rogers, 2 Camp. 654. So, where upon an indictment for lopping and topping trees in the night time, without the consent of the owner, it was proved that the prisoners had committed the offence in the night time, and when detected had run away; that the owner, after the offence was committed, had given orders for the apprehension of the prisoners, but died before the trial; and the land-steward proved that he himself never gave consent, and he believed his master never did: Bayley, J. told the jury that they must be satisfied that the prisoners did not obtain the consent of the owner, but left it to them to say whether the facts proved did not furnish reasonable evidence of want of consent; and the jury found the prisoners guilty. R. v. Hazy and Collins, 2 Car. & P. 458. But where an offence is created by statute, and an exception is made either by another statute, or by another and substantive clause of the same statute, it is not necessary for the prosecutor, either in the indictment or by evidence, to shew that the defendant does not come within the exception; but it is for the defendant to prove the affirmative, and which he may do under the plea of not guilty. See R. v. Pemberton, 1 W. Bl. 230.

If the defendant plead specially, as where he pleads auterfois acquit, &c. or upon an indictment against a parish for nonrepair of a highway, where the defendants plead that others and not the parish are bound to repair, the rule is the same as