If a man upon payment of money do not deliver the goods pledged for it. 1 Sal. 379. (n)

So an indictment does not lie against a justice of peace, &c. for not committing a rioter charged by oath; for he is the judge in such a case. Comb. 317. (0)

(F) Against whom an indictment shall be prosecuted ; and when an indictment against several is good.

So, for an offence (p) joint and several in its nature, two may indicted together: as, for a trespass. 1 Sal. 384.

be

And

or a false token be used. Str. 866. 2. And the false token used must be such as is calculated to gain the impostor credit with a prudent person beyond what his own assertion would produce. 6 T. R. 565. — 3. Therefore a check drawn by the defendant upon a banker as the price of the articles, &c. is not such a token; it imports only an assurance that he has the right of drawing. 6 T. R. 565. — 4. An indictment will not lie for delivering less beer or oats than what has been contracted for, as and for the due quantity. 2 Burr. 1127. 1 Blk. 273. 2 Burr. 1125. 1130. 1 Wils. 301. 5. Nor against a common person for knowingly exposing to sale and selling wrought gold under the sterling alloy, as and for gold of the true standard weight; though against a goldsmith for so doing it will. Cowp. 323.-6. Information at common law, that A. wrote to B. and informed him that he was applied to to prosecute him upon the stamp acts, and that he A. had informed the parties that the prosecution must be carried on by the public officer, and requested B. to write to him, A., and make the best terms of stopping it; without averring that B. had been guilty of any offence for which such prosecution would lie; nor did A. actually extort any money. The information was held insufficient, for the bare threat properly was too weak, and therefore was no offence at common law, however punishable under 18 Eliz. c. 5. s. 3. 2 Smith, 305. 6 East, 126.

(m) 1. So an attempt to defraud, unaccompanied either by false tokens or by con spiracy. 2 Str. 793. 2. Which makes the difference; and, therefore, though selling short measure is not indictable, yet selling by false measure is. 5 Burr. 1697. 5 T. R.

.104.

(n) 1. Vide 2 Salk. 522.- -2. Nor for not curing a sick person, pursuant to promise. Ld. Raym. 366. 3 Salk. 189. -3, Though circumstances may exist of mere nonfeazance towards a child of tender years (such as the neglect or refusal of a master to provide sufficient food and sustenance for such a child, being his servant, under his controul) which may amount to an indictable offence. 2 Campb. 650.- 4. Nor against a miller for detaining part of the corn. Str. 793.- 5. Nor for keeping an open shop in a city, of which the party was not free, contrary to immemorial usage. 3 Salk. 188.- 6. Nor for exercising trade in a borough, contrary to its bye-laws.

4 T. R. 777.

(0) 1. So bringing bastards into parishes to which they cannot become chargeable, is not indictable. Str. 644. 2. Or, with a similar qualification, pregnant single women. S. R.-3. But without it, an indictment lies. 2 Chit. C. L. 700.-4. And, for a similar reason, though it is not indictable to procure the marriage of a female pauper with a labouring man of another parish, who is not actually chargeable. 1 Esp. C. 304. - 5. Yet is it, to bring into a parish, where she had no settlement, a sick pauper who shortly after died, and put the parish to expense. 2 Chit. C. 699. 700. 4 Wentw. 353. C. C. C. 648. Sed vide Str. 707.-6. It is not indictable to keep a house for the reception and delivery of pregnant single women. Burr. 1646.-7. Nor is the entertaining of idle and vagrant persons in one's own house. Ld. Raym. 790. 8. Nor is the secreting of A., who affirmed that she was with child of a bastard by him. Ld. Raym. 1368.-9. Nor the refusal to obey the order of a mayor, also a magistrate, to admit to the freedom of a company. 3 Salk. 188.- 10. Nor for casual damage in doing a lawful act; as where, in unloading goods, the wind blows them upon a passer by. Str. 190.

(p) 1. Crimes, viewed in relation to the offender, are divisible into three distinct classes: 1. Common offences, of which every person, whatever be his circumstances,

may

may be guilty; as treason, murder, theft; which are intended, when crimes of the first class are hereafter spoken of. 2. Exercising a right without being qualified; as by exercising a trade, not having served an apprenticeship; which are intended, when 'crimes of the second class' are hereafter spoken of. 3o. The breach of a public duty either in office, or by not repairing a public bridge, or a public highway; which are intended, when crimes of the third class' are hereafter spoken of. 2. These classes will furnish the subordinate divisions of the following heads; under which will be considered, I. Against whom an indictment shall be prosecuted; and whether against one of several joint offenders. II. Of indicting several for the same joint offence or offences. III. Of indicting several for distinct offences. IV. Of indicting one for the crime of

another.

6

I. Against whom an indictment shall be prosecuted; and whether against one of several joint offenders.

1. In crimes of the first class, and in the case of a single offender, it is plain who is the party indictable, unless, perhaps, in some cases of nuisance. 2. The occupant of premises upon which a nuisance is placed, is liable to the public, as well as the party who raised it; and where it arises from suffering a building, for example, thereon to fall to decay, (as where the building overhangs a public road,) the occupier is indictable, though his landlord may have engaged to repair it. 3. And where several have joined in an offence of the first class, one may be indicted alone; since an averment that A. murdered B. is proved hy shewing that C. united with him. Vide 1 Keb. 153. pl. 93.-4. To which rule, however, there are exceptions; for it seems, that in an indictment for conspiracy, two, at the least, must be made defendants, the same as in the civil writ of conspiracy now obsolete, or it must be shewn, that one who joined with the party indicted is dead. Not for this reason, that two must have joined to constitute the crime of conspiracy, since that they did join, might be averred on indicting one; but that number being requisite to make the offence, was each offender to be indicted separately, there might be two contradictory verdicts.-5. It should seem, also, that an exception to the rule sometimes obtains in an indictment for a riot. Thus, if the indictment names three rioters, it will perhaps be defective if it does not include them all, since if sued against two or one only, the reasoning just applied to the case of conspiracy, by changing its terms, will apply.-6. That the survivor of two conspirators may be indicted, see Str. 1227. 13 East, 412. n.-7. Though the law used to be other. wise. Cro. Eliz. 701.-8. And an indictment against two for a riot cum multis alis is unexceptionable, since non constat that any one besides those indicted is known. Str. 195. 13 East, 415. 416. in notis.-9. With respect to offences of the second class; it seems that, as well an assistant employed in asserting the right, as the principal in whose name and for whose use it has been asserted, may be indicted.-10. And as to those of the third class; if consisting of a breach of official duty, by a single offender, the person who filled the office when the breach of duty happened, should be indicted; for upon him alone was the duty imposed, and he alone, therefore, could be guilty of neglecting it.-11. Hence, if the gaoler of a county prison liberates a prisoner, though he may be indicted as a rescuer, yet the indictment for breach of duty, supposing it lies, must be sued against the sheriff. — 12. In the case of joint offenders; if two fill an office jointly, of sheriff' for instance, each may be indicted separately for a breach of duty for which both are liable. 13. Such are the rules where an offence of the third class consists in a breach of official duty. If consisting in neglect to repair a bridge, and by a single offender; where a bridge by falling to decay becomes a common nuisance the rule to determine who should be indicted is the following. If the bridge is public property, the party bound to repair should be made defendant. If private, the person who built it; or, standing in a public road, either the builder, or the party bound to repair the road. Where the builder is indicted, it is for raising a nuisance, not for neglecting to repair the bridge, since no duty to maintain it is cast upon him. And when the party bound to repair the road is made defendant, he is indicted, not for suffering the bridge to decay or for raising a nuisance, but for allowing the road to be impassable. 14. Where an indictment for not repairing a bridge proceeds ratione tenure, an occupant of the tenement obliged may be made defendant. 3 Salk. 77. pl. 1.-15. Where upon the ground of prescriptive obligation, the tenant in fee must be indicted, since to his estate alone can a prescriptive burthen be attached. 7 Mod. 54.-16. In the case of joint offenders; the whole county, when bound to repair a bridge, should be indicted for letting it go to decay, and not those inhabiting a portion of it, the obligation to repair being cast upon all. 17. So where several are proprietors of land charged with repairing a public bridge, the reason just given for indicting the whole county holds to

require

require that all should be made defendants And, perhaps, so long as the land remains with the original obligors, all should be indicted jointly. But after it has passed to others, that rule fails from necessity or convenience, and any one proprietor may by sued; the public have no ready means of ascertaining the state of the property. Hence if the lord of a manor charged with maintaining a bridge, alienes it to A. B. and C., in severalty, B. may be indicted alone for non-repair, and may afterwards make A. and C. contributory. 3 Salk. 77. pl. 4. W. Jones, 275. 1 Salk. 358. 7 Mod. 98. Vide 16 East, 225. 18. If the offence consists in neglecting to repair a highway, and by a single offender; the person bound to maintain it is the party indictable. 19. If a highway becomes impassable from a nuisance placed therein, the same rule holds, with this addition, that the person who placed it there may also be separately indicted as for a nuisance.-20. Where the burthen of repair is cast upon several jointly; what was said when speaking of bridges may be repeated here; so that the whole parish in which the road wanting repair lies, must be indicted, and not a particular division within the parish. A rule that holds good where a parish is situated in two counties. 5 T R. 498. over-ruling 4 Burr. 2511. Vide 34 G. 3. c. 64.

II. Of indicting several for the same joint offence or offences:

And first, for the same joint offence.

1. If several join in an offence of the first class, as treason, theft, or murder, they may be jointly indicted, as may any number less than the whole; for no injustice to those prosecuted can follow this mode of proceeding. Vide supra, in the text. 2 Hale, 173. 174. 2 Hawk. c. 25. s. 89. 10 Mod. 335. 536. 1 Vent. 302. Ld. Raym. 1248. 8 East, 47.-2. In applying which rule, however, it should be accurately distinguished, what offences may be reckoned joint, what must be accounted several; for two may unite in a crime, and so to all appearance be joint offenders, when by law the crime of each is a separate offence. The test to decide, whether an offence by two is joint or several, is to consider whether the crime of one may be reckoned that of the other, insomuch that each might be charged separately with the commission of that crime, and convicted by proof, that his companion was the actual offender. If it may, the offence is joint; if not, it is several. 3. In most offences of the first class two or more may join. - 4. One in which they cannot is that of perjury, since the one is not perjured by the false testimony of the other, even though he subordered; one is guilty of perjury, the other of subornation of perjury. Vide Str. 921. 2 Hawk. c. 25. s.89. in notis. 1 Sess. Ca. 424. 2 Burr. 983. 3 T. R. 103, 104.-3. In short, where both may be reckoned principals, the crime is joint; where one is principal, the other accessary, or where the two are neither principals, nor principal and accessary, their offences are separate. Vide 2 Burr. 984.-4. So the same persons being concerned as principals in the same offence, may all be joined in the same indictment, though the degrees of guilt may differ. Thus in case of felony, where several are present aiding and abetting, they may be joined with the principal in the first degree, and charged in the indictment either as the actual perpetrators, or as aiders and abettors. 2 Hawk. c. 25. s. 64. 1 Leach, 64. 359. 505. 3 T. R. 305. 1 Chit. C. L. 269.-5. And in all cases of high treason, petit larceny, mayhem, and offences inferior to felony, the act of one being in law the act of the rest, they may all be charged as having jointly committed the offence. 1 Hale, 615. 521. 4 Com. 36. 7 East, 65. 1 Chit. C. L. 269.-6. Except in the case of becoming a traitor, by harbouring another traitor, in which case the indictment must be specially framed. Fost. 345. 1 Chit. C. L. 269.-7. Where the principal in the second degree is charged as an aider or abettor, it is not necessary to set forth in the indictment the means or manner by which he became thus guilty, but merely to describe him generally as being present, aiding and abetting at the felony, and murder (as the case is) committed in manner and form aforesaid. 4 Rep. 42. 2 Hawk. c. 25. s. 64. c. 29. s. 17. 1 Hale, 521. Ld. Raym. 846. 1 Chit. C. L. 269.-8. But merely to charge with him being present will not suffice, because he may possibly be innocent. 4 Rep. 42. 2 Hawk. c. 25. s. 64. Fost. 351. 1 Chit. C. L. 269.-9. In indictments for homicide it is safer to aver the abatement generally; but if it be laid specially, it should refer to the stroke and not to the death. 4 Rep. 42. 1 Chit. C. L. 269.-10. And it seems proper to aver the abetting with malice propense, and then to draw the conclusion, that all present murdered the deceased. 9 Rep. 62. 1 Chit. C. L. 269. - 11. But care must be taken, if the stroke and death were on different days, to lay the murder on the latter, though the abetting was on the former, for till then no felony was completed. 4 Rep. 42. 1 Chit. C. L. 269.-12. If money and goods be obtained upon false pretences, all who are present aiding may be included in one indictment under the statute. 1 Leach, 505. 1 Chit. C. L. 269.-13. And if the crime arise out of the same act, though the parties stand in different relations, they may be joined in

the

the same indictment; thus, if a wife join with a stranger in the murder of her husband, they may be prosecuted together, though the wife is guilty of petit treason, and the stranger of murder only. Fost. 106. 529. 1 Chit. C. L. 270.-14. And in that case the indictment may conclude, that they feloniously, traitorously, and of their malice aforethought, did kill and murder,' which will be good for both of them, applying to each their appropriate terms. Ibid. — 15. So several present at the death of a man may be charged with different degrees of homicide in the same indictment; thus if A. with malice abet B. who gives the blow without malice, it is murder in the former, and but manslaughter in the latter; and thus it may be stated in the proceedings. 9 Rep. 67. 3 Bulst. 206. 1 Leach, 360. 1 Chit. C. L. 270.-16. And there seems to be no reason why, on the trial, if two be indicted for murder, the jury may not find it murder as to one, and manslaughter as to the other. But if this distinction appear to the grand inquest upon the evidence to support the bill, a new bill for the inferior offence should be presented against the less guilty individual. 3 Bulst. 206. 2 Rol. 408. 1 Sidf. 230. 2 Hale, 162. 2 Hawk. c. 29. s. 7.-17. If several be concerned in executing a treasonable or seditious design, it is best to include them in one proceeding, that the evidence for the crown may not be disjoined. Kel. 9. 1 Chit. C. L. 271.-18. From what has been said, however, it must not be concluded, that separate offenders cannot be joined in the same indictment. Whether that can be done, will be considered presently. 19. The joinder of more defendants in an indictment than are guilty of the crime charged, can seldom be objectionable, provided the offence is such as all might have concurred in, and that the indictment itself does not shew the truth. The reason is, that an averment that A. and B. murdered C., is proved quoad A., by shewing that he alone was guilty.-20. Though sometimes an indictment may be defective for including too many; as for indicting a woman for the murder of her illegitimate child, and another person being present aiding and abetting; if the only evidence of guilt be the concealment, both the prisoners might be acquitted. 1 East, P. C. 229. 1 Chit. C. L. 271.-21. As, at common law, the accessary cannot be convicted before the principal, without his own consent, and as the crime of the former depends upon the guilt of the latter, it is both usual and proper to include them in the same indictment. Fost. 365. 1 Hale, 625. 1 Chit. C. L. 272. Infra, Justices, (T3.)-22. With respect to offences of the second class; if a case can be put in which an offence of this class can be considered joint, the rule under the last head will apply. Where two jointly exercise a trade without having served an apprenticeship, their offences are separate; the crime consists, not in the act of exercising the trade, but in having omitted to serve an apprenticeship, which omission being several in each, the crimes resulting from it must likewise be several. Vide 1 Salk. 382. et infra, in the text.-23. As to offences of the third class; the rule under the first division may be applied to the several classes of the present. Hence, for one consequence, if two fill the office of sheriff, they may be indicted jointly for a breach of duty. Vide etiam 12 Mod. 198.-24. But the person placing a nuisance in the highway and the party bound to repair the way cannot be joined, their offences being of different natures.

Against several for the same joint offences.

1. Whether two or more may be indicted together for several joint offences, is a question of pleading, and is answered by the following rule: If the offences are such as might be included in an indictment against one offender, the parties may be charged jointly; otherwise not.-2. With respect, then, to the joinder, in an indictment of several offences against the same defendant; in point of law, and therefore on demurrer, motion in arrest of judgment, or writ of error, it is no objection to an indictment, that distinct offences of the same nature, and upon each of which there is a similar judgment, are joined in the same indictment. 3 T. R. 98.-3. Where, however, several felonies are charged, and it appear before the defendant has pleaded, or the jury are charged, that he is to be tried for separate offences, it has been the practice for judges to quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to a juryman's trying one of the offences, though he might not object to his trying the other. If the joinder of two distinct felonies be not discovered before the prisoner has pleaded, the court, in its discretion, may put the prosecutor to elect on which he will proceed. 3 T. R. 106. Leach, 531. 568. 2 Camp. 152. 8 East, 41. 1 Stark. 36, 37.

4. And where two are indicted as for a joint offence, and the evidence adduced affects each differently, bearing more strongly against one than the other, the judge may sum up the evidence and take the verdict against each separately. 3 T. R. 103. 106.5. But, though two different felonies ought not to be included in the same indictment against the same defendant, yet the same act may be charged as a different offence in different counts. Leach, 568. 1 Stark. 37.- 6. Thus a count for a rob.

bery

bery may be joined with another for stealing privately from the person. Leach. 531, -7. And Lord Hale speaks of a bill containing two offences, as burglary and theft, forcible entry and detainer, as usual in practice. 2 Hale, 163.173. Yelv. 99. 1 Stark. 37.-8. So a prisoner may be indicted for petty treason and murder at the same time, and may be found guilty of the murder and acquitted of the treason. Leach, 512. Fost. 106. 328. 10 St. Tr. 36. 1 Stark. 37.-9. So if the special description of the offence in the indictment include a more general offence, the prisoner may be found guilty of the latter, and acquitted of the former. Leach, 102. 771.816. 1 Stark. 37. -10. And, in general, whenever an offence, as described in the indictment, is made up partly of facts and circumstances, which constitute a less aggravated offence, and partly of circumstances peculiar to itself, the defendant may, if the evidence warrant such a conclusion, be found guilty of the more simple, and acquitted of the more serious offence. Fost. 328. 1 Hale, 378. 449. 2 Hale, 184. 302. 2 Hawk. c. 23. s. 95. c. 47. s. 8. Leach, 513. 1 Stark. 38. - 11. And for this reason it is in many cases unnecessary to subjoin to a special count, describing the aggravated offence, other counts which differ only in the omission of the particular allegations in which the aggravation consists. 1 Stark. 39. 12. Which rule, however, has this limitation; that a charge of felony cannot be modified into a misdemeanor, since thereby the defendant would lose the benefit of full counsel, of a copy of the indictment, and of a special jury. Leach, 15. Vide Cro. Car. 332. Cro. Jac. 497. Kielw. 29. Cald. 401. 1 And. 351. 1 Stark. 38. Str. 1133. 2 Hen. 7. 10. contra. b. 2 Hawk. c. 47. s. 8.-13. It seems, likewise, to be a general rule, that the joinder of offences which necessarily require different judgments is bad in point of law, and therefore a ground for demurrer, motion in arrest of judgment, or error. 3. T. R. 108. 3. M. & S. 556. — 14. The rule, however, though general, is not invariable, but admits a variety of exceptions; for example, in the offence of embezzling naval stores, the having in pos session new stores, or stores not more than one-third worn, is subject to transportation for fourteen years: but if they be not new, or be more than one-third worn, the punishment is different. Yet counts for both these offences may be included in the same indictment. 3 M. & S. 550.-15. So in conspiracy the judgment upon conviction is, that the party is infamous; yet to counts for a conspiracy may be added other counts which do not include a charge of conspiracy. 3 M. & S. 550.— 16. And the rule to determine whether two offences are amenable to the same punishment, and therefore whether their joinder in the same indictment is not legally defective, is gained by considering whether they are primarily liable to the same punishment; if so, the joinder is not legally defective, notwithstanding they may, under circumstances, be amenable each to a different punishment; since, then, they are offences of the same nature. 3 M. & S. 539.-17. It is no objection to an indictment that it charges different misdemeanors upon the defendant in different counts, for the judgment is the same. 3 T. R. 108. 2 Burr. 984. 8 East, 141. 2 Camp. 132. 1 Stark. 40. 18. But the joinder of offences of a perfectly different nature, is legally defective. 3 M. & S. 549.

III. Of indicting several for distinct offences;

And first, for distinct offences of the same nature.

1. An indictment against separate offenders, for offences of the same nature, is not bad in point of law, and therefore not objectionable by demurrer, motion in arrest of judgment, or writ of error; but it may be quashed at the discretion of the court in which it is pending. 8 East, 41.-2. As to the reason of the rule; in civil matters separate offenders cannot be sued in the same action; and if the reason of the rule in its original was, because by the form of the declaration, which anciently could not be violated, the several demands comprised therein are required from, or to be awarded against, the several defendants charged, the foundation of the difference between civil and criminal proceedings is plain. An indictment against separate offenders demands, not that the same punishment be adjudged against all, but that the jury do inquire concerning distinct facts upon the same occasion, instead of at different times. If however the reason of the civil rule is, that by charging separate offenders the attention of the jurors might be distracted indefinitely, it may be difficult to assign a satisfactory ground for the criminal rule, unless this be one; the court cannot in civil suits exercise that discretionary power of quashing the proceeding which they do in criminal.-3. If the offences are many or their investigation intricate, the attention of the jury may be distracted, and they be thereby disabled from forming that distinct and accurate judgment on each of the questions thus collectively submitted to them, which they might have given by considering each question apart. This inconvenience may not be experienced in every case, so that whether it objects itself in a given instance, is a matter of judgment for the court wherein the indictment is pending to determine, and as they decide one way or the other they may quash or allow the

proceeding