it was deemed necessary to describe the justices either as the king's justices, or as justices of the public peace; but it has since been holden to be sufficient to describe them as justices of the peace. 2 Hawk. c. 25. s. 122. 1 Starkie, 221.—45. It need not be shewn by whom the justices were appointed. 4 Burr. 2084. 2085. — 46. But it is not sufficient to describe them generally as justices of the peace, &c. without either naming them or shewing for what division they are justices; and where in their description as justices assigned to keep the peace, &c. the word assigned was omitted, the caption was holden to be defective. 1 Saund. 263. 1 Starkie, 221. 222. 2 Hale, 166.47. It is likewise a rule to set forth the title of their authority, as that they were justices of the peace,' &c. 'justices of gaol-delivery assigned, &c. to deliver the gaol,' to hear and determine,' to keep the peace,' &c. 2 Hale, 166. - 48. The justices' names too must be given; and though it is not necessary to mention all, yet so many should be named, as are enabled by their commission to take an indictment. Ibid. Cro. Eliz. 738. 49. Thus the caption of an indictment at the sessions of the peace must name two at the least. 2 Hale, 166.- 50. Under a commission of oyer and terminer, four at the least. 1 Saund. 249. n. — - 51. But though no sessions can be held unless before one of the quorum, it need not be stated that any of them were such. 2 Hale, 167. 2 Hawk. c. 25. s. 124. 4 Burr. 2084. 2085. 52. It is sufficient if in fact one of the quorum was present. Ibid. 53. Lord Hale, however, doubts this, in the case where an act expressly requires that the offence shall be heard and determined before two justices of the peace, one of whom is of the quorum. 2 Hale, 167.- 54. And this is the usual course in the return of orders made by two justices concerning illegitimate children, upon the 18 Eliz. c. 3., the provisions of which are express. Ibid. 55. If any mistakes arise in relation to the names of the justices, the court may order them to be amended. 4 East, 174.- 56. Sixthly, The description of the jurors, or those who made the presentment: The caption must shew that the indictment was found by twelve jurors of the county, city, or place, for which the court was holden. 1 Starkie, 223. Ld. Raym. 434. 2 Hale, 167. 2 Keb. 160.

c. 25. s. 126.

1

3 Keb. 807. Cro. Eliz. 654. 1 Saund. 248. n. 57. Their names need not be inserted in the caption. 1 Saund. 248. n. 249. n. 2 Str. 702. 58. And the practice of the crown-office is to omit them. Saund. 216. n. 59. Though they must appear in the schedule. 1 Saund. 248. n. 2 Hawk. c. 25. s. 126. 60. It must appear that the presentment was upon oath. 2 Hawk. c. 25. s. 126. 2 Hale, 167. Ld. Raym. 710. 3 Salk. 187.-61. And therefore that they were sworn; in which is implied that they were charged, so as to aid the omission of that term. 2 Hawk. 62. It has been holden in some instances, that the words present upon their oath,' supply the place of the words 'sworn and charged.' 1 Keb. 629. 2 Hawk. c. 25. s. 126. -63. And Mr. Starkie adds, that probably this would now be holden sufficient in all cases. 1 Starkie, 224. Vide Ld. Raym. 710. 3 Salk. 187. 64. Nor need the term 'impanelled' be used, being a necessary implication. 3 Salk. 191. Gilb. L. & E. 242. 1 Chit. C. L. 334. 65. And though it has been holden necessary to allege, that they were then and there sworn. 2 Hawk. c. 25. s. 126.66. Yet Mr. Chitty says, that they are not now usual. 1 Chit. C. L. 334.-67. The county or division for which they are sworn and charged, is also stated. 2 Hawk. c. 25. s. 126.- 68. And formerly it was requisite to describe them as good and lawful men. 2 Hale, 167. 1 Keb. 629. Cro. Eliz. 751. Cro. Jac. 635. 1 Chit. C. L. 333.- 69. But now it is considered to be unnecessary, since this is a necessary intendment of law. I Starkie, 224. 2 Keb. 366. 2 Hawk. c. 25. s. 16. 126. Bac. Abr. Indict. I. Burn's J. Indict. IX. Williams' Just. Indict. IV. 1 Chit. C. L. 333. — 70. The caption, however, must state that they are of the county aforesaid,' or other vill or precinct for which the court had jurisdiction to inquire; and the omission of these words will vitiate the indictment. 1 Chit. C. L. 333. Cro. Eliz. 677. 2 Keb. 160. 2 Hale, 167. 2 Hawk. c. 25. s. 16. 126. Bac. Abr. Indictm. 1. Burn's J. Indict. IX. Williams' J. Indict. IV.-71. Seventhly, The conclusion of the caption: The ancient form of concluding the caption was it is presented that, &c. but the better and present form is It is presented in manner and form following, that is to say, Middlesex to wit, the jurors for our lord the king,' &c. and then to copy the whole of the indictment verbatim. 1 Stark. 354. 1 Chit. C. L. 334. — 72. And where the county or division is mentioned in the margent of the indictment, and the place mentioned in the body of the indictment is referred to the county in the margent by the words in the county aforesaid, it seems to be necessary to introduce the indictment according to the latter method; since otherwise the indictment would appear to be insufficient, for referring the place mentioned in it to the county aforesaid, no county having been previously mentioned. 1 Starkie, 225. 226. 1 Saund. 308. n. Vide 1 Chit. Č. L. 226. referring to Cro. Eliz. 606. 738. 751. -73. Regularly, however, the county mentioned in the margent is not an essential part of the record,

unless

as, 1° M. ult. without the year; for that appears by the caption. (i)

So, 10 die post Pasch' ult. (k)

So, Octab. Trin. &c. which shall be intended 8° die, not 4° die post. So diversis vicibus (1) inter such a day and such a day, is sufficient in an information. (m) R. 2 Lev. 71. (n) So,

unless it be made so by an express reference to it in the body of the caption, or of the indictment itself. 2 Hale, 165. 166.-74. If two or more indictments are affixed to the same schedule, and it is intended to describe them as several and distinct, they should not be stated as several indictments, but as bills; for it is only after they have been presented that they become entitled to the former appellation. Ld. Raym. 592. Salk. 376. 1 Chit. C. L. 334. 75. Lastly, a defective caption may be demurred to; as from an apparent defect in the jurisdiction of the inferior court; or the court may in their discretion quash it. 2 Hawk. c. 25. s. 146. 1 T. R. 316. 1 Leach, 425. 1 Chit. C. L. 335. — 76. And on a demurrer to the indictment, the court will look into the whole record. 2 Leach, 425.-77. Since, however, the caption is an act merely ministerial, it is amendable so as to make it agree with the original record; and at any time, notwithstanding former opinions that the amendment could be made only during the term in which the return is made. 1 Saund. 249. n. 4 East, 175. 176.-78. And Mr. Starkie concludes his review of the cases by observing, that upon the authority of the cases mentioned it would probably be holden, that the caption of an inquisition before a coroner, or even the inquisition itself, is amendable in matter of form after it has been filed, either in the same or in a subsequent term. 1 Starkie, 251.252.79. Though, he adds, according to Serjeant Hawkins, it has been holden, that the caption of an inquisition cannot be amended at any time after it has been filed, any more than the body, 2 Hawk. c. 25. s. 97.

(i) 1. 2 Hawk. c. 25. s. 78. 2. So it seems to follow, that an indictment laying the time on the utas of Easter, which will be taken for the eighth day after the feast, if it can be ascertained by the style of the sessions before which the indictment was taken, is valid. Hawk. b. 2. c. 25. s. 78. Bac. Abr. Indictm. (G 4.) Burn's J. Indictm. Williams' J. Indictm. IV. 1 Chit. C. L. 218.

(k) So Thursday after the day of Pentecost in such a year. 7 H. 6. 39. 1 Stark. 51. (1. Where an offence is made up of several acts done at various times, they may be averred to have been done at the same time. Leach, 655. Fost. 8. 2. Thus overt acts of treason done at different periods. Fost. 8. — 3. So where, under an indictment upon 7 Geo. 3. c. 50. s. 1., it appeared that a bank-note had been divided, the parts sent at different times, and secreted at different times, by the defendant; the indictment, laying the acts of secretion upon one and the same day, was held good. 2 Leach, 575.

(m) 1. The word until is capable of either an exclusive or inclusive, and will be taken in that in which, from the context, it appears to have been used. 5 East, 244.-2. And, therefore, where, in an information upon the statute of the 33 Geo. 3. c. 52. s. 62., prohibiting officers of the East India Company, residing in India, from receiving presents of the natives, the defendants were charged that from a certain day until the 29th of November, 1795, they held certain offices under the Company, and during all that time resided in the East Indies, and during that time, to wit, on the said 29th day of November, 1795, received certain presents; it was decided, that the context shewed that the word until was to be taken inclusive of the 29th of November. 5 East, 244. -3. If, however, it had not been capable of receiving an inclusive construction, the words under the first videlicet 'until the 29th of November 1795,' could not have been rejected as surplusage; for that can never be done where the allegation is sensible and consistent in the place where it occurs, and not repugnant to antecedent matter, though laid under a scilicet, and inconsistent with a subsequent allegation. Ibid. 1 Chit. C. L. 223. 224. 4. And in like manner the word to, when applied to time. 5 East, 255.-5. The words from and unto when applied to place, are construed exclusively. 2 Ro. Abr. 81. Leach, 596. 397. Burr. 376. 3 T.R. 513.

(n) 1. 4 Mod. 101. contra. Vide etiam 2 Hawk. c. 25. s. 82. 2. And the court in deciding that a conviction for having killed ten deer, between the 1st of July and the 10th of September, was good, distinguished between convictions and informations or indictments, Ld. Raym. 581. Vide 10 Mod. 335.—3. Mr. Starkie's opinion agrees with the text. 1 Stark. 51. n. (8.) — 4. If an indictment charge a man with keeping a common gaming-house on divers days, and only one day be particularly

specified,

So, the precise day is not necessary (o); for he may be found guilty if the offence was at a former or a subsequent day. R. 2 Inst. 318. (p)

And if the offence be proved at a day before or after the time alleged in the indictment, it will be well. (q) R. upon an indictment for high treason. Kelg. 16. (r)

Though it was eleven or twelve years before. Kelg. 16.

So, in every indictment for treason (s), felony, &c. R. per all the judges. 3 Inst. 230. Syer.

And if the offence was at a day after the time in the indictment, the jury may find the very day of the fact, to ascertain the forfeiture; or if they find the party guilty generally, a lessee, &c. may falsify as to the time, though not as to the offence, for avoiding the forfeiture. R. 3 Inst. 230.

So to a neglect or non-feasance (t) no time is necessary; for the present time shall be intended: as, quod non escuriavit fossam, &c. (u)

specified, it will be good; though but one penalty can be inflicted. 10 Mod. 338 ̊ Hawk. b. 2. c. 25. s. 82. 1 Chit. C. L. 218.

1

Stark. 50. same as an Hawk. b. 2.

(0) 1. Unless some time be limited for the prosecution, or time itself be material to the constitution of the offence, the averment of time is altogether formal. -2. Still, however, laying an impossible or future day will vitiate, the omission of time altogether. Rast. Ent. 263. Moore, 555. 1 T. R. 316. c. 23. s. 88. c. 25. s. 77. Burn's J. Indictm. 5 East, 244. 1 Chit. C. L. 225.-3. So a repugnancy in the allegation of time. 5 East, 244. 4. As, that the offence was committed on two different days. 1 T. R. 316. Hawk. b. 2. c. 25. s. 77.— 5. Nor will a verdict cure the defect.

(p) 1. In an indictment for homicide, as well the day of the stroke, as of the death, should be expressed. 2 Hale, 179.-2. And where the time is material, as of the death in case of homicide, or where the time for prosecution is limited; the time, as averred in the indictment, should appear to be within the limit; but it is not necessary expressly to aver, that the death happened, or that the offence was committed, within the temporal limit. 1 Stark. 55. 5 East, 259

(9) Though the time laid in an indictment is definite in allegation, it is indefinite in proof. The forms of law require that the person who charges another must bring himself within the limits prescribed by the law; and for that reason some certain time must be laid in the indictment. 5 M. & S. 548.

(r) 1. And therefore, upon a second indictment varying from the time of the first, an acquittal on the first may, by proper averments, be pleaded. 2 Inst. 318. 2 Inst. 250. 2 Hale, 179.-2. So, in an indictment for burglary, though it is necessary to state at or about what hour of the night it happened, it is not necessary that the evidence should strictly correspond with the allegation. 2 East, P. C. 513.-3. And if an unnecessary allegation as to time be introduced and not proved, it may be rejected, and the defendant be convicted. — 4. And, therefore, if in an indictment for firing a barn, the offence be laid to have been committed in the night-time; the allegation is immaterial, and the indictment, though intentionally framed upon the 22 & 23 Car. 2. c. 7., will be considered as a valid indictment upon the 9 Geo. 1. c. 22. 2 East, P. C.

1021. 1035.

-

(s) 1. Foster, 8. 2. It is said, however, to be the better course, though, after all, quite optional, to state the time as correctly as may be; especially in treason, since there the forfeiture of lands relates to the time when the offence was committed, so as to avoid subsequent alienations, and since the day laid in the indictment, will, after a general verdict, be considered as correct. 1 Hale, 161. 2 Hale, 179. 3 Inst. 330. Bac. Abr. Forfeiture, (D). 1 Chit. C. L. 224. 225.-3. If a person be charged with a burglary and stealing the goods, the prosecutor, on failing to prove that these facts were committed on the day laid in the indictment, cannot be admitted to prove that a distinct larceny was committed on a prior day. 2 Leach, 708.

(t) 1. And. 139. Hob. 251. 2 Leon. 167. 1 Hawk. c. 10. s. 5.- 2. Or to the allegation of any personal disqualification. 2 Hawk. c. 25. s. 84. 112. 2 Hale, 180.

1 Stark. 62.

(u) 2 Hawk c. 25. s. 79. Lamb. b. 4. c. 5. f. 492.

So

So the place (x) is sufficient, without the (y) county (~), if the county be in the margin. (a)

So the time or place (b) need not be repeated to circumstances. Mar. pl. 127. 2 Rol. 226. (c)

And it is sufficient, that it be coupled to a time precedent in an indictment for a trespass: as, an indictinent for a forcible entry, quod 1° M. intravit & ipsum disseisivit, without saying, adtunc & ibidem disseisivit, is sufficient. R. 2 Cro. 41. (d)

If a mortal wound be given, upon which the party dies at another day, the death ought to be alleged at the last day. (e)

By the st. 2 & 3 Ed. 6. 24. If the stroke be in one county and the death in another, the indictment may be in the county where the death

was.

And an accessory in one county to an offence in another, may be indicted where he was accessory.

If a robber in one county fly with the goods into another, he may be indicted of the felony there, but not of the robbery.

(x) 1. Communis strata, sive alta regia via, denote the same place, and are not uncertain. Str. 44. -2 The termini à quo et ad quem of a way are unnecessary. Ibid. (y) At the parish of A., near the highway, and dwelling houses, is sufficient for a nuisance, without saying in the town or village. 1 Burr. 333.

(z) The place must appear to be within the county.

2 Hale, 180.

(a) 1. And a reference be made, as by the words in the county aforesaid.' 2 Hale, 180. 3 P. Wms. 459.-2. Otherwise the averment will be defective, for want of a county. 3 P. Wms. 439. 2 Hale, 165, 166. 2 Hawk. c. 25. s. 128. Cro. Eliz. 101. Sid. 345. 3 Wils. 340.-3. If the offence be laid to have been committed in a city which is a county of itself, but the jurisdiction of the latter is not co-extensive with the former, the offence should be laid within both. Andr. 162.

137. 184. 606. 618. 750.

(b) The rules relating to the averment of time, apply for the most part to the averment of place; where the time must be repeated upon the allegation of subsequent acts, so must the place. 1 Stark. 61. 2 Hale, 180. 5 T. R. 620.

(c) 1. Nor to a mere conclusion of law; though a defective averment in this respect will vitiate. 2 Hawk. c. 25. 1 Stark. 61. 2 B. & P. 127. 2 Leach, 942. 2. Though the general rule is, that unnecessary averments, not intimately connected with the circumstances which constitute the crime, will be rejected as surplusage. 2 Leach, 593. Vide infra in notis. - 3. Upon which subject the distinction is settled to be, that if the averment be connected with the charge, it must be proved; if wholly immaterial, as if the averment be totally unconnected, it need not be proved. 2 Leach, 594. Vide infra in notis.

(d) 1. But a different rule often obtains in indictments for capital crimes, and this in favorem vitæ.- 2. Thus in murder the terms adtunc et ibidem must be repeated to the stroke, though an averment of time and place is antecedently subjoined to the assault. 2 Hale, 178. Hawk. b. 2. c. 23. s. 88. Cro. Eliz. 7539. 1 Chit. C. L. 220. 2. So in an indictment for robbery, these words must be connected with the stroke for the robbery, and not merely with the assault. 1 Chit. C. L. 220. 2 Hale, 178. Hawk. b. 2. c. 23. s. 88. Cro. Eliz. 739. Supra in the text.

(e) 1. It is frequently necessary to assign distinct periods of time to distinct events.2. Thus, in homicide, to the event of the death, as well as of the stroke; of the stroke, because the escheat and forfeiture of lands relate thereto; of the death, because it must have happened, and therefore must appear to have happened, within a year and day after the stroke. 2 Hale, 179. 2 Inst. 318. Hawk. b. 2. c. 23. s. 90. c. 25. s. 77. Bac. Abr. Indictm. G 4. Burn's J. Indictm. 1 Chit. C. L. 222.-3. And a repugnancy as to time in the averment, at the conclusion of an averment deducing the inference from the premises, and so the defendant feloniously murdered J. S.;' will vitiate. 4 Rep. 42. Hawk. b. 2. c. 23. s. 88. Bac. Abr. Indict. (G 4.) — 4. An indictment for a rescue, the day and year, as well of the rescue as of the arrest, must be averred. Hawk. b. 2. c. 25. s. 77. Dyer, 164. b. 1 Chit. C. L. 223. accord 2 Balst. 208. contra. VOL. IV. M m - (G 3.)

(G 3.) Of the offence. What shall be uncertain.

So an indictment ought to shew the certainty of the offence; and therefore, an indictment for murder or felony, must shew all (ƒ) the circumstances (g) of the fact in certain (h): as, by whom. (i)

In

(f) 1. If there is any description in the negative, the affirmative of which would excuse the defendant, the onus probandi is thrown upon him, and therefore it need not be detailed by the prosecutor. 1 Sid. 303. 2 Hawk. c. 25. s. 112. 5 T. R. 84. 2. Hence an indictment against the receiver of stolen goods, proceeding upon the statute 5 Ann. c. 31., is good, though it does not show that the principal could not be taken so as to be prosecuted and convicted. Ld. Raym. 1370. Fost. 373. contra. -3. So on indicting the receiver of stolen property, under 22 Geo. 3. c. 58. s. 1., for a misdemeanour, it need not be averred that the principal has not been convicted. $ T. R. 83.

(g) 1. The crime must be charged with a precision and certainty intelligible to all; and with every essential requisite to the offence. 1 T. R. 63. —2. Every circumnstance, therefore, necessary to the offence must be alleged; and positively, without any periphrasis or intendment. 2 East, 35.-3. Insomuch, that an indictment will be defective where all the facts charged may be true, and yet the defendant be innocent. Dougl. 153. — 4. In an indictment, two introductory facts were averred in circumstance precisely similar, but which very consistently might, as alleged, have happened upon different occasions. Afterwards the gravamen, or offence, is stated, to which one (but no matter which) of the previous facts was a necessary circumstance and appendage, and it referred to one of these facts, connecting itself with it, but to which of the two was uncertain. For this uncertainty, the indictment was holden to be erroneous; since, for any thing that appeared, there had been two complete offences, and from an indictment in this form, it could never be known for which of the two the defendant had been tried; insomuch that, upon being a second time indicted for the same offence, he would be disabled from pleading the former prosecution in bar. 4 M. & S. 214.-5. Stating a breach of duty to consist in not having commenced and prosecuted a war with all possible vigour and decision,' is too indefinite, since thereby the defendant is not apprised what is meant to be proved. 5 T. R. 607.

(h) 1. See the first note to (G 1.) supra.— 2. It is necessary, says Mr. Starkie, to specify the criminal nature and degree of the offence, which are conclusions of law from the facts; and also the particular facts and circumstances which render the defendant guilty of that offence. 1. In order to identify the charge, lest the grand jury should find a bill for one offence, and the defendant be put upon his trial in chief, for another, without any authority. 2". And this is farther necessary, that the defendant's conviction or acquittal may enure to his subsequent protection, should he be again questioned on the same grounds; the offence, therefore, should be defined by such circumstances as will, in such case, enable him to plead a previous conviction or acquittal of the same offence. 3. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims as incident to the nature of the case. 4o. To enable the defendant to prepare for his defence in particular cases, and to plead in all, or, if he prefer it, to submit to the court by demurrer, whether the facts alleged, supposing them to be true, so support the conclusion in law, as to render it necessary for him to make any answer to the charge. 3. Finally, and chiefly, to enable the court, looking at the record after conviction, to decide whether the facts are sufficient to support a conviction of the particular crime, and to warrant their judgment; and also, in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender. 1 Stark. 63, 64. 2. The only instances, he continues, in which general pleading seems to be allowable, are exceptions, from the necessity of the case, where the offence is made up of a numher of minute acts, which cannot be enumerated upon the record, without great prolixity and the danger of variance. 1 Stark. 65. 2 Hawk. c. 25. s. 59. 6 Mod. 511. Str. 1246. Burr. 1233.-3 Thus, in an indictment against a common scold, it is sufficient to aver that she is a common scold; and in an indictment for barretry, it may be averred, generally, that the defendant is a common barretor. 1 Stark. 65. 4. So, an indictment charging the defendant with being noctigavus, is good. 2 Hale, 182. (i) 1. The deceased must be named. 2 Hawk, c. 25. s. 71. Staunf. 181. b. 2. c. 18. - 2. Un