(G 2.) Of the time and place.

So it ought to shew the day and year (s) of the offence. (t) 95. a. (u) Vide ante, (G 1.)

St.

And

6.

for selling to others by unlawful measure. Str. 497. Vide Id. 186. contra. Harbouring thieves. i Chit. C. L. 212. Str. 186. 497.-7. But proof that the name was known, will entitle to an acquittal. Vide supra in notis. - 8. The description of third persons that will suffice, is such as whereby they may be distinguished from all others. 1 Chit. C. L. Hawk. b. 2. c. 25. s. 72. 2 Leach, 861. 1 Leach, 248.

counted. 2 Leach, 547.

9. And an indictment for forging a draft, addressed to Messrs. Drummond and Co., Charing Cross, by the name of Mr. Drummond, Charing Cross, without stating the names of Mr. Drummond's partners, was held sufficient. 1 Leach. 248. 2 East, P. C. 990.- 10. Persons styled peers by courtesy must be described by their surnames; and though the addition of title under a commonly called' is not technical, still it may be given. 2 Leach, 547. 2 Salk. 451. 11. Before the Union, Irish peers were so ac12. Though since the Union they are entitled to all the privileges of English peers, except sitting in the House of Lords in Parliament, or upon impeachments. See the Act of Union. — 13. A repugnancy or absurdity in the description of the party injured, the error will be fatal; as where one is indicted for stealing the goods and chattels of the said J. S., where J. S. has not been previously mentioned. Hawk. b. 2. c. 25. s. 72. 1 Chit. C. L. 216.- 14. Though, where the indictment charged that Francis Morris, the goods and chattels abovementioned, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have; he the said Thomas Morris, then and there, well knowing the said goods and chattels lastmentioned to have been feloniously stolen, taken, and carried away; the judges determined, that as the indictment would be sensible and good without the words the said Thomas Morris,' they might be struck out as superabundant and unnecessary. 1 Leach, 109.-15. Hence the position must be thus qualified, unless the matter occasioning the repugnancy or absurdity may be rejected.. 16. Mr. Chitty judiciously remarks, that a material error in the name of the persons aggrieved, or in whom property stolen ought to be laid, is much more important than a mistake in the name or addition of the defendant; in that the latter can be objected to only by plea in abatement, the effect of which is to delay the trial merely, whilst the former will afford a ground for arresting the judgment, when the objection is apparent upon the face of the indictment; or if it constitute an error in fact, it will be a ground for an acquittal, at least so far as respects that part of the charge; though if the mistake affects the higher offence only, the indictment may still be valid as to the inferior crime; as where in an indictment for burglariously breaking and entering the dwelling-house of A. B., and stealing therein goods the property of C. D., the name of the owner of the house be mistaken, though the defendant cannot be found guilty of the burglary or capital part of the indictment, yet may he be convicted of the simple larceny. 1 Chit. C. L. 216. 217. Leach, - 17. And in like manner a failure in proof of stealing to 40s. value in a dwelling house, will not preclude a conviction for simple larceny. Leach, 339. n. - 18. The surname or some other addition of distinction must be added to the Christian name of third persons. Hawk. b. 2. c. 25. s. 71. Bac. Abr. Indictm. G. 2. 1 Chit. C. L. 215. Sed vide Starkie, C. P. 171. 172. 6 St. Tr. 805. Moor, 466. cited ibid. 19. But the person to whom forged notes or coins were uttered, need not be named in an indictment for uttering. 2 Taunt. 334. 20. An indictment for a robbery upon an unmarried woman, in her maiden name, is good, although she marry before the indictment is found. 1 Leach, 536.

252.339. n.

(s) 1. It is most usual to specify the year of the king's reign, but it is sufficient if the year be pointed out by other means; thus, in the case of the regicides, no year of any king was laid for the king's murder; but the compassing of his death was laid in January, in the 24th year of Charles the First, and the murder was laid on the 30th of the same month of January. Kel. 11. 1 Stark. 51.-2. An averment of the day, without the year, will not be sufficient, nor can inference and intendment supply the omission. Supra in the text. 1 Chit. C. L. 217.

(t) 1. In impeachments in parliament, no time need be laid. 16 St. Tr. 17. 19. Lords' Journ. 116. 1 Chit. C. L. 217. - 2. Nor is it necessary to the averment of a negation or omission, supra in the text. 5 T.R.616. Hawk, b. 2. c. 25. s. 79. Lamb. b. 4. c. 5. f. 492. 1 Chit. C. L. 217.

(u) 2 Hale, 177. Hawk. b. 2. c. 25. s. 77. c. 23. s. 88. Dyer, 164. b. Bac. Abr.

Indictm.

And the place. (x) Dy. 69. 1 Sal. 380. R. Lat. 194. St. 95. a. (y) And by the st. 18 H. 6. 12. if a place be alleged, and there is no such, it is void.

So, if the day of the month be named without the year, it is not good.

Or, if the day be uncertain (2); as, in festo S. Petri, when there are two feasts of St. Peter (a).

So the time and place ought to be repeated to every material fact: and therefore, quod 10 M. apud B. insultum fecit & cum gladio felonice percussit, without saying, adtunc & ibidem (b) percussit, is bad. 68.69. (c)

Indictm. (G 4.)

Dy.

So

Blk. Com. 306. Burn. J. Indictm. Williams J. Indictm. 4. Cro. C. C. 35. 1 Chit. C. L. 217.

(x) 1. In an indictment, every fact which is issuable and triable, must be laid with time and place. 5 T. R. 607.-2. The allegation too of time and place must be positive, and not left to be collected by inference; and an omission in this particular makes the indictment erroneous. 4 M. & S. 214.

1 Sid. 178. Cro. Jac. 222. Cro. Eliz. 200.-12. So de

(y) 1. That is, some place from the neighbourhood of which a jury may be returned. — 2. Which may be any place of so limited a compass, that all who live in and near it, may reasonably be presumed to have some knowledge of the persons resident, and fact done, within its limits. 2 Hawk. c. 23. s. 92. 1 Štarkie, 58.-3. Hence a burgh. Cro. Eliz. 866.-4. Castle. 2 Ro. Abr. 612. 613. 614. Co. Litt. 125.-5. Forest. Co. Litt. 125. 2 Ro. Abr. 618.-6. Hamlet. 2 Hawk. c. 23. s. 92. 6 Rep. 14.7. Manor. Co. Litt. 125. 1 Sid. 226.-8. Parish. 6 Rep. 14. Burr. 333. -9. Town. 2 Hawk. c. 23. s. 92. 10. Ward. Yelv. 159. -11. Or any place known out of a town. 2 Inst. 319. vicineto civitatis. 2 Hawk. c. 23. s. 92. 2 Ro. Abr. 622.623. Cro. Jac. 307. 308. 2 Hale, 262.-13. But not from London; where the offence should be laid either in a parish or in a ward. 2 Hawk. c. 23. s. 92. c. 25. s. 83. 7 Hen. 6. 36. Burr. 333. 9 Rep. 66. Leach, 928. 1 Stark. 59. n. —— 14. Nor from a liberty. 1 Sid. 326.15. Nor the scite of a manor. 2 Rol. Abr. 618.- 16. Nor a weald. 1 Sid. 88. 2 Rol. Abr. 617.; though Mr. Starkie adds, qu. et vide 2 Hawk. c. 23. s. 93.-17. But a place named generally, will be taken for a vill, unless the contrary be pleaded. Salk. 59. 69. 1 Inst. 125. Burr. 333. Cro. Eliz. 200. 2 Hawk. c. 23. s. 92.-18. Though the place must be precisely laid in the indictment, it is not necessary to prove the offence to have been committed there; but it is sufficient to shew by evidence, that it was committed at any other place in the same county; nor is it necessary to prove an offence to have been committed in any particular place, unless the place itself be of the essence of the crime, or a situation has been especially described. 1 Stark. 61. Burr. 333.

(2) 1. Laying an offence on an impossible, as a future, day, vitiates. Moor, 555. 2 Hawk. c. 25. s. 77. Rastal, 263. 1 T. R. 316.-2. So laying the same offence on different days. 2 Hawk. c. 25. s. 77. 2 Hen. 7. 7. 1 Stark. 56.-3. So upon such a day, as makes the indictment repugnant to itself. 2 Hawk. c. 25. s.77. (a) Each of which is distinguished by an addition. 2 Hale, 178.

(6) 1. But these words, being equivalent to a repetition, are sufficient. Dyer, 28. 69. 4 Rep. 41. Keilw. 100. Godb. 65. 66. 2 Hale, 178. Str. 901. East, P. C. 346. Comyns' Rep. 480.- -2. Which nicety, requiring a repetition of time and place to every distinct material fact, is, according to Lord Hale, in favorem vitæ. 2 Hale, 178.-3. And does not appear to hold, in cases of misdemeanor, provided the averments are connected by conjunctions with that in which time and place are expressed. 2 Hale, 178. Cro. Jac. 41.345. Dyer, 69. C. C. C. 35. Burn's J. Indict.-4. Wherefore, it is sufficient in an indictment for a forcible entry, to state an entry and dispossession, without a second allegation of time and place. Cro. Jac. 41.-5. Where, in order to constitute the offence, connected acts must be shewn to have been done at the same time, a mere repetition of the same day, year, and place, would not be sufficient; for it would not expressly appear that the acts were done at the same time. 1 Stark. 55. Leach, 597.-6. In such case, therefore, the words 'then and there' must be adopted. Thus, in an indictment upon the 6 G. 1. c. 28. for feloniously assaulting a person with intent to spoil his cloaths, where the assault and spoiling must be shewn to be continuous, the repetition of the day and place is insuf

fiçient,

So the reference ought to be to a time (d) or place (e) certain: as, if it says, quod percussit apud A. in comitatu prædicto, where two counties are mentioned before, though one was in the addition only. R. 1 Rol. 223. (f)

But the hour is not necessary in an indictment, though it is in an appeal. 2 Inst. 318. Mar. pl. 127. (g)

So

ficient, because it does not appear that the acts were not upon different hours of the day; but the words ‘then and there' fix them to have been effected together. 1 Leach, 529. Comyns' Rep. 480. 1 Chit. C. L. 221.-7. If the indictment allege, that the defendant feloniously, and of malice aforethought, made an assault, and with a certain sword, &c. then and there struck, &c. the previous omission will not be material, for the words 'feloniously and of malice aforethought,' previously connected with the assault, are by the words 'then and there' sufficiently applied to the murder. 1 Chit. C. L. 221. 222. 4 Rep. 41. b. Dyer, 69. a. Godb. 65. 66. 1 East, P. C. 346. —

8. And in like manner, where in an indictment for poisoning it was alleged that the prisoner did wilfully, feloniously, and of malice aforethought, mix poison with other ingredients, with intent that the same should be afterwards eaten by the deceased, and with the intent aforesaid, did then and there deliver the same to the deceased, it was decided by the judges to be sufficient, without the addition of the words feloniously and of malice aforethought, to the allegation of the delivery of the poison. 1 East, P. C. 346. — 9. But where an indictment for rescous, set forth that a third person at a certain time and place committed a felony, for which the officer took and arrested him, and in his safe custody then and there had and kept him, it was considered doubtful whether it was not insufficient, because no time of the arrest was alleged in the same sentence, and it was not clear whether the time of the custody could by force of the conjunction be applied to the arrest. Dyer, 164. Vide 3 P. Wms. 484. 497.-10. The word immediate being joined to the averment of adtunc et ibidem, weakens its force and effect, and renders it an insufficient allegation, where time is a constituent part of the offence.- 11. Hence, when on an indictment for a highway robbery, the special verdict found the forcible assault, and then in a distinct sentence, that the prisoners then and there immediately' took up the prosecutor's money; the averment was held insufficient to fix the prisoner with the offence of robbery, in that the word ' immediately' has great latitude, has not any determinate signification, and is frequently used to import as soon as conveniently could be done.' 1 Chit. C. L. 220. R. T. H. 114. 115. Comyns, 480. 1 Leach, 529. Dougl. 212. (c) The word being' has not the force of a conjunction, and taken by itself, refers to the present time only; and therefore an indictment that the defendant on such a day entered upon land, being the prosecutor's freehold, does not affirm that it was so at the time of entry. 1 Chit. C. L. 220. Bac. Abr. Indictm. (G 1.) Cro. Jac. 214. 639. Ld. Raym. 1467. 1468. 2 Rol. Rep. 225.

-

(d) A. was indicted, for that, on the first and second days of May, he made an assault upon B., and a certain cloak of the said B., then and there found, feloniously took, &c.; the indictment was held bad, because two days had been before mentioned. 2 Hale, 178.

(e) Stating the defendant to be late of W. and laying the offence to be at the parish aforesaid,' is not sufficiently certain. 5 T. R. 162.

(f) So, with respect to time, it is insufficient to allege, that the defendant on the first day of May, and also on the second day of May, made an assault upon the prosecutor, and then and there feloniously took, &c. because two days having been mentioned before, it is not evident to which of them the felonious taking relates. 2 Hale, 178.

(g) 1. In appeals, the statute of Gloucester required that even the hour should be specified, whence it appears, that it was not essential at common law to state the hour even in appeals, in which as great, and in some respects greater certainty was expected than in indictments. 1 Stark. 52.-2. In an indictment, however, for burglary, it certainly is necessary to aver that the offence was committed in the night-time, and it is usual to allege the hour; and in one case an indictment was holden to be defective for omitting it. 1 Stark. 52. Burn's Just. tit. Burglary. 2 East, P. C. 513. 2 Hale, 179. Hawk. b. 2. c. 25. s. 76. in notis. Bac. Abr. Indictm. (G 4.) in notis. 3. But the hour need not be proved as laid. Ibid.- - 4. In an indictment for breaking into a house in the day-time, the offence must, for the purpose of ousting the defendant of his clergy, be averred to have been committed in the day-time. 2 Hale, 179. Bac.

Abr.

So it is sufficient, if the time be ascertained by the caption (h):

as

Abr. Indictm. (G 4.) Cro. C. C. 35. 1 Chit. C. L. 219. - 5. Since, however, it is, in general, unnecessary to name any hour, an imperfect mode of stating it, forms no ground of objection. 1 Bulst. 203. 1 Chit. C. L. 219.

(h) 1. Where an inferior court, in obedience to a writ of certiorari, from the king's bench, transmits the indictment to the crown-office, it is accompanied with a formal history of the proceeding, describing the court before which the indictment was found, the jurors by whom it was found, and the time and place where it was found. This instrument, termed a schedule, is annexed to the indictment, and both are sent to the crown office. And the history of the proceedings, as copied or extracted from the schedule, is called the caption, and is entered of record immediately before the indictment. 1 Stark. 220.-2. The following is the form of a caption given by Lord Hale: "Norfolk. At a general sessions of the peace holden at S. in the county aforesaid, on the fifth day of October, in the twenty-fifth year of the reign, &c., before A. B., C. D., and their fellow justices of our said lord the king, assigned to keep the peace of our said lord the king, and also to hear and determine divers felonies, trespasses, and other misdemeanours in the same county committed, by the oath of E. F., G. H., &c. good and lawful men of the said county, sworn and charged to inquire for our said lord the king and the body of the said county, it is presented, &c." 2 Hale, 165. 1 Starkie, 221.- 3. The caption is no part of the indictment itself. 1 Saund. 250. d. n. 1. 2 Hale 165. 4. Its end and purpose being to shew that the court before whom the indictment was found had jurisdiction, and proceeded regularly. 2 Sess. C. 316. Andr. 138. 5. A demurrer, however, will lie for its omission or any deficiency therein. 3 Salk. 188. 1 T. R. 319.-6. It appears then, upon resolving the precedent given above into its component divisions, that a caption consists of seven parts: 10. The county in the margin ; 2. The court before which the indictment was found; 3°. The place where that court was holden; 4°. The time at which the indictment was presented; 5o. The description of the members of the court; 6o. The description of the jurors, or those who made the presentment; 7°. The conclusion of the caption.. -7. And first, The county in the margin: This expresses the county in which the indictment was presented; but does not seem absolutely necessary, provided the county be stated in the body of the caption. 2 Hale, 165. 166. Burn's Just. Indict. IX.-8. Though the usual practice is to state it in both. 1 Chit. C. L. 327. 328.-9. The county must be stated in the body; though an incorporation by reference, namely by referring to the county in the margin, as thus, in the county aforesaid,' will do. 1 Chit. C. L. 328. 1 Saund. 308. n. 1. Cro. Eliz. 490. 3 P. Wms. 439. 527. accord. Cro. Eliz. 606. 758. 751. semb. contra. - 10. Secondly, The court before which the indictment was found: This is requisite that the proceedings may appear to have been taken under a competent authority; to which end the court must be so described, as that it may appear to be a court of competent jurisdiction. 4 Rep. 41. Plowd. 76. 77. Cro. Eliz. 193. 2 Rol. Rep. 82. Summ. 207. Ld. Raym. 710.-11. But where the proceeding is in the ordinary course of judicial administration, the original constitution or foundation of the court's authority need never be detailed. 4 Burr. 2085.-12. If a session be holden by virtue of several commissions, as of gaol delivery, oyer and terminer, and the peace, and the record be made up as upon all three commissions, the caption will be good, if the justices had authority to take the indictment by one of those commissions though not by the others. 2 Hale, 166. 1 Starkie, 222.-13. To state that an inquest was taken, of a dead body, before J. S., not describing him as coroner, is defective; and so likewise is it, though he be described as coroner, without shewing that he acted in that capacity for the district in which the inquisition was taken. 2 Hawk. c. 25. s. 119. Cro. Eliz. 193. 2 Rol. Rep. 82. Bac. Ábr. Indict. I.—14. But coroner in the county' is sufficient. 2 Hawk. c. 25. s. 119. 4 Rep. 41. Bac. Abr. Indict. I. - 15. A caption setting forth that the indictment was taken ad magnam curiam cum leta tentam,' is sufficient, though ad magnam curiam et ad letam,' would be good, for cum letâ does not describe any court possessing jurisdiction. 1 Salk. 195. 2 Hawk. c. 25. s. 124. 2 Keb. 139. Bac. Abr. Indict. I. 16. So it would be sufficient to allege that it was taken at a court-leet holden with a court-baron; though it would be otherwise if both courts had jurisdiction, and their modes of proceeding were different. 1 Salk. 195. 2 Hawk. c. 25. s. 124. Bac. Abr. Indict. I. 17. Nor need the caption of an indictment taken at a court-leet shew how the court was constituted, as whether by grant or by prescription. 1 Salk. 200. 2 Hawk. c. 25. s. 125. Bac. Abr. Indict. I. 18. Though this appears to be necessary where the indictment has been

taken

Stark. 222.-19. To

taken by virtue of a special commission. Fost. 3. the caption, describe the indictment as having been taken at the general sessions of the peace of the county, is sufficient. 1 Sid. 247. 2 Hawk. c. 25. s. 120. Bac. Abr. Indict. I. — 20. But the contrary to allege it to have been taken at a sessions in the county. 1 Keb. 329. 635. 668. 2 Keb. 128. 133. 1 Lev. 304. Cro. Eliz. 490. Bac. Abr. Indict. I. 2 Hawk. c. 25. s. 120. -21. Though possibly the caption may be supported by reference to the venue in the margin. Ibid. 1 Chit. C. L. 328. - 22. To state that the indictment was taken before I. S. steward, not shewing to whom, or in what court he was such, is defective. 2 Hawk. c. 25. s. 119. Bac. Abr. Indict. I.— 23. Thirdly, The place where the court before which the indictment was found was holden: It must be shewn, that the indictment was taken at some place within the county or division for which the jurors are returned; for otherwise they would have no authority to inquire. 1 Starkie, 224. 2 Hale, 166.-24. This may be done by reference to the county in the margin; thus in the county aforesaid.' Supra.-25. And an omission, or uncertainty of statement in this particular, will vitiate. 1 Chit. C. L. 330. Cro. Jac. 276. 2 Hale, 166. 2 Hawk. c. 25. s. 128. Bac. Abr. Indictm. I.- 26. As where the town where the session was holden is stated, not adding in the county aforesaid.' Cro. Eliz. 137. 606. 738. 751. 2 Hale, 166. 2 Hawk. c. 25. s. 128. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 330.—27. If a statute enjoins that the sessions be holden at a particular place, and not elsewhere,' the caption must shew that they were holden there. 2 Hawk. c. 25. s. 128. 1 Starkie, 225.-28. A coroner's inquest was stated to have been taken at Cossam, before W. S. the queen's coroner, within the liberty of her town of Cossam aforesaid; and this was holden to be sufficient, without expressly shewing that Cossam was within the liberty of the town of Cossam. 5 Rep. 120. 1 Starkie, 225. 2 Hawk. c. 25. s. 128. Bac. Abr. Indict. I.-29. Where the place is in Yorkshire, not the county at large, but one of the three ridings must be specified. 2 Hale, 166. Cro. Jac. 256. 257. 1 Chit. C. L. 330. Id. vol. 4. - 30. So likewise where in Lincolnshire, one of the three divisions of that county. Ibid.-31. Fourthly, The time at which the indictment was presented: The day and year of the presentment must be specified. 2 Hawk. c. 25. s. 127. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 330. 4 Rep. 48. 32. And the practice usually states the indictment to have been then presented in the present tense; though Mr. Starkie_questions whether this be absolutely necessary. 1 Starkie, 224. referring to 1 T. R. 316. 320.—33. An improper, uncertain, or impossible day will vitiate. 34. Improper, as where the caption of an indictment states, that the court was adjourned from 4th October, 1785, to Thursday 6th July aforesaid,' instead of October aforesaid,' and then proceeds with, and on the said Thursday, the 6th day of October aforesaid;' here, since it cannot be intended that July means October, it will appear that the court was holden upon a day (6 October), to which it had not been adjourned. 1 T. R. 316. 35. So where the sessions were alleged to have been holden ad festum Epiphanii, instead of Epiphania, for Epiphanius is a Saint in the Roman Calendar; and therefore, it appeared, that the sessions were holden at a time different from that appointed by the statute. Str. 698. 1 Starkie, 224.- 36. Uncertain; as where the day of the week only is mentioned. 4 Rep. 48. 2 Hawk. c. 25. s. 127. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 37. Or the year laid as the year of the king, without stating what king. 2 Keb. 582. 2 Hawk. c. 25. s. 127. Williams' J. Indict. IV. 1 Chit. C. L. 330.38. So the caption will be invalid, if the time be set forth in any figures but Roman. 2 Keb. 128. 1 Mod. 78. 2 Hawk. c. 25. s. 127. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 330.-39. If the indictment be taken at an adjourned sessions, it should be shewn when the original sessions began. Str. 865. 1 Starkie,

330. XX

224.

2 Sess. Cas. 17. 20. 1 Barnard. 327. 328. 2 Hawk. c. 25. s. 127. n. 22. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 331.-40. The year of the Lord need not be stated in addition to that of the king; and an error in the mode of stating it will be aided on the ground of surplusage. 1 Mod. 78. 2 Hawk. c. 25. s. 127. Bac. Abr. Indict. I. Williams' J. Indict. IV. 1 Chit. C. L. 331. 41. Fifthly, The description of the members of the court: The caption ought to notice the authority of the justices to hear and determine divers felonies, &c. Str. 442. 2 Hawk. c. 25. s. 121. 2 Hale, 166. 1 Starkie, 221. 1 Vent. 33. 1 Saund. 263. n. 42. Though, says Mr. Chitty, if the justices of the peace, before whom the indictment was found, necessarily, as such, had jurisdiction over the offence, the statement of the authority in the caption seems unnecessary; thus in the case of an indictment at sessions for a forcible entry. 1 Chit. C. L. 352. citing Cro. Jac. 634.43. He adds, that it should seem also sufficient to allege, that the justices were assigned to hear and determine offences of the same nature as that for which the indictment was found, without stating the whole of their power. 1 Chit. C. L. 332. 44. Formerly,