In what manner committed. (4)

Upon what part the wound was given; upon the face, arm, &c. 4 Co. 41. a. R. 5 Co. 121. b.

And of what depth or breadth the wound was, when there was no amputation. 4 Co. 42.

If it says, quod suffocavit, &c. et quá suffocatione obiit, without saying, de quá, &c. it is bad. 1 Rol. 137.

So an indictment, quod dedit plagam circiter pectus, or, super brachium, without saying, dextrum, or, sinistrum, is bad. 4 Co. 40. b. R. 5 Co. 121. b. (l)

So an indictment for larceny ought to shew (m) the (n) value (o) of the goods (p), to distinguish grand, or petit larceny. (q)

If

- 2. Unless not known. 2 Hale, 181. Dyer, 99. 28.5. Plowd. 85. 129. 2 Hawk. c. 23. s. 78. c. 25. s. 71. Bac. Abr. Indictment (G 2.) Burn's J. Indictment. C. C. C. 36.-3. And the reason why he should be named, if known, is, that the party charged may be enabled to vouch for his acquittal. Staunf. 181. b. 2. c. 18.-4. It has been holden, that an indictment for an assault upon John, parish priest of D., in the county of C. is sufficient, for it is such a description of the person that it can apply to one only. 2 Hawk. c. 25. s. 72. - 5. But otherwise the description by the name of baptism only, is insufficient. 11 Hawk. 172.-6. The person may be described by the name by which he is usually known. Leach, 861. 1006. 2 Hawk. c. 25. s. 72.-7. Any repugnancy or inconsistency in the description of the person injured, will vitiate the indictment; as where the defendant is charged with stealing the goods prædicti J. S., no such person having been previously mentioned. 2 Hawk. c. 25. s. 72.-8. For though in civil actions the word prædictus has been rejected as surplusage, yet this is said to have been done by virtue of the statutes of jeofails, which, it is well known, do not extend to criminal cases. 1 Stark. 173.-9. And it may be laid down as a universal rule, that any variance from the name laid in the indictment will be fatal upon the trial. 1 Stark.

173.

(k) 1. In order that the court may see that the means and manner amount in law to the crime imputed. 1 Starkie, 113.- -2. But where the means are indifferent, provided the end be accomplished, such means may be described in general terms. Starkie, 129.-3. So a party may plead in general terms what is peculiarly within the knowledge of his adversary: hence an indictment against a baker for mixing improper articles with his bread may state generally, that the loaves contained divers noxious materials, without specifying what those materials were. 5 M. & S. 11.4. And where a crime is made up of several independent facts, a general description is sufficient; for example, in the cases of a scold, of barratry, and of keeping a gaming or disorderly house. 2 T. R. 586.-3. But otherwise where it consists of a single fact; thus, in obtaining money under false pretences. 2 T. R. 586.

(4) 1. The description usually given to the party injured, of being in the peace of God and the king, is unnecessary. 4 Rep. 41. 2 Hawk. c. 25. s. 73. - 2. It seems to have been borrowed from the Treuga or Pax Dei, and the Pax Regis described by Dr. Robertson, in Note XXI. to his View of the Progress of Society in Europe, from the subversion of the Roman Empire to the beginning of the Sixteenth Century. (m) It is essential to the crime of larceny, that the party must have feloniously stolen property, and that the property stolen must belong to some one. Hence that the defendant did so steal, and that the property did belong to some one person, must appear in the indictment. This too must appear in the body of the indictment, and not merely in the conclusion, since the conclusion is merely to be taken as the regular legal inference from the premises that have gone before; a mere consequence drawn from other previous matter; and, therefore, being such, can never supply a deficiency in the body. 3 M. & S. 539.

(2) The owner's name, if known. Vide infra, (G 5.) in notis.

(o) 1. Vide infra. - 2. In general, if the property be correctly described in species, a variance from that description upon the trial, as to value, (weight, magnitude, or number,) will be immaterial, unless the variance either affect the nature of the crime, as well as the degree of the offence, or the magnitude of the penalty. 1 Stark. 187.M m 2

3. And

If it be a live thing, it is said pretii; if dead (r), ad valentiam. (s)

So

3. And there is a distinction between cases, where, to constitute the offence, the value must be of a certain amount, but where the excess beyond that amount is immaterial; and those where the offence, or its defined measure of punishment, depends upon the quantity of that excess: for, in the first class, if that amount be proved, which is sufficient to constitute the offence charged, a variance from the amount averred is immaterial; but in the second the amount or quantity must be proved precisely as it is laid, and any variance will be fatal. 1 Stark. 187, 188.4. Thus in an indictment for a highway robbery, a variance from the value laid is wholly immaterial; for there the value of the property affects neither the nature of the offence, nor the measure of punishment. 1 Stark. 188.-5. In an indictment under st. 12 Ánn., for stealing in a dwelling-house to the amount of 40s., the property must be proved to be of the value of 40s., but the excess is immaterial. 6 T. R. 265..-6. So under an indictment framed upon the statute 17 G. 3. c. 26. s. 7. for taking more than ten shillings in the hundred pounds for brokerage, it is necessary to prove that the defendant took more than ten shillings in the hundred pounds, for in that the offence consists; but the quantum of the excess is immaterial, and need not be proved as laid in the indictment. i Stark. 188.-7. And the same in the case of extortion. Ld. Raym. 149. 1265.— 8. But in the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it in evidence would be fatal, because the penalty is apportioned to the value. 6 T. R. 265, 1 Stark. 188.

(p) 1. So their genus. Hawk. c. 28. s. 74.496. 3 M. & S. 559. — - 2. Therefore, to say bona et cattalla is insufficient, since that is a description indefinite, and applicable to every kind of goods. 3 M. & S. 545.-3. And with at least the same certainty as in trespass for goods. Hale, 183.-4. And where the statute upon which the indictment proceeds, uses a generic and also specific terms, the latter must be employed. Leach, 123.-5. But otherwise, it is sufficient to describe the goods stolen by their generic name, without defining the particular species; thus, it is sufficient to say sheep, without distinguishing whether ewe or lamb; so handkerchief, without distinguishing whether linen or silk; so printed books, without giving their titles. 3 M. & S. 539.-6. And the reason seems to be, because the defendant must always know what he has taken or embezzled. 3 M. & S. 555.-7. So if a statute make a class of property the subject of larceny, which at common law was not so, the property is, quoad the form of describing it in an indictment, placed upon a footing with other chattels; and therefore the same and no greater degree of certainty required in the description of the one will suffice in that of the other. 3 M. & S. 539. —s. For example, bank notes are by the 2 Geo. 2. c. 25. made the subject of larceny, and an indictment under 39 Geo. 3. c. 85. for embezzling bank-notes, describing them as divers, to wit, nine bank-notes for the payment of divers sums of money, to wit, the sum of 91. of lawful money,' is sufficient, without setting forth the individual description of each note: embezzlement under the act is a larceny, and the property stolen is described by its generic term, which in larceny is sufficient. 3 M. & S. 539. (9) Lamb. 497. 2 Hale, 183.

() 1. Animals usually found wild, must be described either as reclaimed or dead, or shewn to have been deprived of their natural liberty, as fish are in a stew, trunk, or close pond. Staunf. 25. 3 Inst. 109, 110. East, P. C. 607. 611. 3 Salk. 189. 6 Mod. -2. And may then be called the goods and chattels of the prosecutor. Staunf. 25.

183.

3 Inst. 109. 3 Salk. 189. 6 Mod. 185. Lamb. 274. 1 Hawk. c. 53, s. 39.

(s) 1. According to the ancient authorities. Lamb. b. 4. c, 5. f. 497. 2 Hale, 197 Cro. 2. It seems, however, that they may be used indifferently. 2 Hale, 183. Jac. 130. 2 Hawk. c. 25. s. 75. 3. In larceny, value, being an essential, must be expressed, unless in the case of current coin. 1 Hale, 534. 1 Stark. 187. 4. And in grand larceny, must exceed one shilling. 2 Hale, 183.-5. But where value is not an essential, as on indicting for a trespass, it has been questioned whether it need be averred. 2 Hawk. c. 25. s. 75. Vide Dalton, c. 181. Lamb, b. 4. c. 5. f. 496, 497. 2 Hale, 183..-6. Mr. Starkie, however, observes, that there seems to be this material distinction between writs in civil proceedings (in analogy to which the question was raised) and indictments; that, in the former case, the damages are to be assessed by a jury, and therefore it is not so requisite to set out the precise value upon the face of the record; but in criminal cases the punishment is frequently in flicted at the discretion of the court, which ought, therefore, to be judicially informed

of

So an indictment for an escape, or breaking prison, ought to shew for what crime he was taken, (t) or committed. St. 95. a. (u)

For a contempt in not executing a warrant, it ought to shew the nature and tenor of the warrant. R. 1 Vent. 305.

An indictment for extortion ought to shew in what instance committed. Mod. Ca. 32, 33. (x)

What fee was due (y), or that nothing was due. R. 3 Leo. 268. (z) An indictment for ingrossing (a) magnam quantitatem (b) straminis et fœni, without saying how much, is bad. R. Cro. Car. 381. (c) So, for erecting diversa (d) cottagia. Sho. 389. (e)

Or, for stopping quandam partem regiæ viæ, aquæ cursus, &c. Sho. 389.

Or, for an assault upon several of the king's subjects, between such a day and such a day. Per Holt, Sho. 390. (f)

For saying or publishing such words, aut (g) similia. sur Case, 112.

Bro. Action

Quod

of the circumstances and magnitude of the offence. 1 Stark. 187. -7. Where several articles have been stolen, not the aggregate, but the value of each article must be given. 2 Hale, 183.

(t) 1. And that an offence had actually been committed by the party arrested. 3 P. Wms. 497. — 2. A prisoner cannot be convicted on the 16 Geo. 2. c. 31. for facilitating an escape, if it appear either by the indictment or on evidence that the com mitment was for suspicion only. The act makes the offender guilty where the prisoner was committed to, or detained in, any gaol for treason or felony expressed in the warrant of commitment or detainer.' Leach, 97.

(u) 2 Str. 1226. Hawk. b. 2. c. 25. s. 57. Bac. Abr. Indictm. (G 1.) (x) 1. Vide Sidf. 91. Keb. 557. Ld. Raym. 1265.· 2. It being a rule that misconduct in office must be particularly described. 3. And, therefore, charging a constable with having improperly and negligently conducted himself in the execution of his office, is insufficient. Str. 2.

(y) 1. Since to aver (expressly or by implication) that the whole fee was extorted, when something was really due, would be contrary to the fact. 2. In such case, therefore, the sum really due must be alleged, and how much the defendant took. Salk. 680. Ld. Raym. 1265. 3 Lev. 268. Str. 73. 1 Stark. 143.-3. Nor, as it seems, will a variance be material, provided it is proved that the sum actually taken exceeded that alleged, and proved to be allowed by law. Stark. ibid. 6 T. R. 265. Ld. Raym. 1265. West, Pr. Sec. 111.

(2) Unless the law will intend that nothing was due; which it will intend where the taking is manifestly unjust and unlawful; as where the taking any fee for performing a particular duty is wholly prohibited by a statute. 1 Stark. 143.

(a) So for stealing magnam quantitatem straminis, et diversos cumulos tritici — duos centenas casei,' not adding any substantive to centenas aseertaining the weight. 2 Hawk.

c. 25. s. 74.

(6) 1. Quantity should be ascertained by an averment of number, weight, or mea surement. 2. As in indictments for selling such a quantity by unlawful or short measures or weights. 2 Leon. 38. Salk. 687. Str. 497. (c) So for engrossing a great quantity of fish, 2 Hawk. c. 25. s. 74. 1 Sid. 317. accord. (d) Vide infra, (G 5.)

497.

(e) 2 Rol. Abr. 85.

(f) Supra, (G 2.)

(g) 1. 5 Mod. 137.

geese, ducks, &c.

6 Mod. 42. contra.

1 East, 582.

Str.

Salk. 342.371. 8 Mod. 32. Str. 747.900.- 2. Where however several circumstances are mentioned disjunctively in a statute, any one of which is sufficient to oust the offender of his clergy, it is sufficient to charge the defendant disjunctively in the indictment; and therefore it was holden to be sufficient, in an indictment for a highway robbery, to aver in the words of the statute, that it was committed in or near the highway; the words being descriptive only of the manner. 1 Stark. 211. 1 Hale, 535.

M m 3

(h) Quol

Quod fabricavit, seu fabricari causavit, &c. R. 1 Sal. 342. 371. (h) Quod cepit extorsirè pro quolibet equo 2d. pro quibuslibet 20 ovibus, &c. R. 4 Mod. 103. (i)

So, quod A. existens servus, sive deputatus, took, &c. is bad. R. Rol. 263.

Quod cum there was such an order, &c. for it should be positive, that there was. R. 1. Sal. 371. (k)

Quod exoneravit tormentum dans (1) plagam, without saying, percussit. R. 5 Co. 122. b.

Quod nesciens potum fore venenatum bibit, without saying expressly, venenum bibit. R. 4 Co. 44. b.

That he refused bail, without saying that any was offered. R. Mod. Ca.3 2, 33. (m)

That he made panes non habentes debitum pondus, without saying, what is due weight. R. Sal. 687. (n)

Quod exercuit quasdam diabolicas artes, Anglice, witchcraft. R. Lat.

156.

Quod dixit (0) diversa scandalosa (p) verba of such a magistrate, without saying, what words. R. 1 Rol. 79. (q)

That

Str. 900.

(h) Quod sepem levavit vel levari causavit, in the case of a nuisance. 2. For conveying, or causing to be conveyed, a pauper. B. R. H. 370. (i) 1. Quia male et negligenter se gessit in executione of the office of constable, is too general. Str. 2.-2. So de scriptis, bonis et catallis, de D. decipiebant et defraudabant. Str. 8.-3. So diversas quantitates cervisiæ. Str. 497.

(k) 1. 2 Hawk. c. 25. s. 60. 3 Mod. 53. Ld. Raym. 1363. Burr. 400.-2. Since whereas' signifies it being so,' and therefore takes that for granted, which should have been asserted to exist, depriving the defendant of the opportunity of traversing; for a party cannot be put to prove the existence of what he never asserted.

() 1. Bulst. 124. Vide Ld. Raym. 1169.-2. For a participle asserts nothing, and as a party cannot be put to prove the existence of what he never asserted, the defendant cannot traverse a fact, introduced by a participle.

(m) Kingston and eight others were indicted for a joint contempt in disobeying an order of sessions, directing the payment of certain costs by commissioners, of whom the defendants were nine. The first count alleged that notice of this order had been served upon four of the defendants named in the indictment, and also upon a fifth commissioner, who was not included in the indictment, and then charged those four and two others jointly with the contempt, in refusing to obey the order. Upon general demurrer the count was holden bad, since it charged six with the contempt, four only having been personally served. 8 East, 41.

(n) And how much was wanting.

(o) So a libel must be set out in the terms in which it was published. Ld. Raym.

414. Salk. 417. 3 Mod. 71. 6 T. R. 162.

(p) So in an indictment for blasphemous or seditious words, they must be stated, that the court may judge whether they be seditious or blasphemous. Str. 498. 686. 1 Stark. 114.

(q) 1. 2 Str. 699.-2. Calumniatrix, et communis et turbulenta pacis perturbatria et lites rixas et pugnas movit et incitavit, et quondam J. A. verbis contumeliis et opprobris abusa fuit in domo ipsius J. A.' is too general. Str. 849.-3. So is a 'common and turbulent brawler, a sower of discord among her quiet and honest neighbours, so that she hath stirred, moved, and incited, divers strifes, controversies, quarrels, and disputes, amongst his majesty's liege people.' Str. 1246.-4. None but common scolds are indictable by such general words. Ibid. 5. So in an indictment under 6 & 7 W. 3. c. 11. for profane cursing and swearing, it was (for now the 19 Geo. 2. c. 21. gives a general form of conviction) necessary to set out the particular oaths and curses; because what is a profane oath or curse, is a matter of law, and ought not to be left to the judgment of the witness; he may think false evidence is so. 1 Stark. 114. Str. 197.

(r) 1. That

That he took a servant without a testimonial, it ought to shew a former service. Skin. 343. (r)

That he inticed A. from his service, it ought to say, quod reliquit. R.

Mod. Ca. 99. 101. (s)

That he inticed a servant to take the goods of his master, it ought to say expressly, that he took them. R. Mod. Ca. 289. (t)

So where an indictment is founded upon a contrivance, a fact in pursuance of it ought to be alleged. 1 Sal. 380. (u)

If there be an indictment for refusal of an office, it ought to shew an election by good authority. 5 Mod. 96.

If for a rescous, it ought to shew the writ, and also the warrant. 2 Mod. Ca. 357. (x)

R.

An

(r) 1. That fact not being a necessary implication. — 2. So an indictment for selling, as two chaldron of coals, a quantity deficient in so much of that quantity which by law the bushel ought to contain, is not equivalent to a charge of selling by false measure. 3 Burr. 1697.-3. So likewise, supposing it to be an indictable offence in a miller to return to his customers, as and for the produce of their own grain, a different meal, musty and unwholesome, it must be so upon the ground that he delivered it as and for the food of man, and so appear in the indictment against him. An averment that he delivered it, does not, ex vi termini, import that he delivered it for that purpose. 4 M. & S. 214.

(s) 1. This case went upon the principle, that a mere solicitation to commit a crime, not followed by any act, is not an indictable offence. — 2. But the contrary is now settled to be law. 2 East, 4.

(t) 1. See the last note. 2. So that the contrary is now settled law; and there. fore lately an indictment for soliciting and inciting one A. a servant of B. to take, embezzle, and steal, a quantity of his master's goods, was supported. 2 East, 4.

(u) 1. So an indictment on 33 Hen. 8. c. 1. for procuring by false tokens, must specify them. Str. 1127.-2. So an indictment on 30 Geo. 2. c. 24. for obtaining money by false pretences, must specify the pretences. 2 T. R. 581.-3. As to the averment of falsehood, see 2 East, 30. — - 4. An indictment, however, charging an endeavour, against 57 Geo. 3. c. 70., to entice, not specifying the means employed, is sufficient. 1 B. & P. 180. — 5. Mr. Starkie has established the following rules upon the subject of illegal solicitations, attempts, and endeavours. . 6. That in general it is essential that the particular means and manner should be set out, in order that the court may see that they amount in law to the crime imputed. 1 Stark. 113.7. And the exceptions to this rule consist of cases, where the means are either perfectly indifferent, provided the criminal object be accomplished, or where they are made up of a number of circumstances, which cannot well be described upon the record without the aid of a general term of art. Ibid.-8. The sufficiency of the first class of exceptions (where the means are indifferent, provided the end be accom plished) he rests upon this, that the adequacy of the means of procurement is a mere question of fact for the cognizance of the jury; and since any means are sufficient to render the procurer criminal, it would afford no further information to the court to set them out. 1 Stark. 132.—9. That where the offence consists in the mere solicitation, or other attempt to procure the commission of a crime, which is not afterwards perpetrated, here, since the offence rests in tendency only, a greater degree of particularizing appears to be necessary in stating the means, for by those alone can the defendant's criminality be tried, since their adequacy is not shewn upon the record by an averment that they did produce the criminal effect. 1 Stark. 133.10. That, however, there are many instances in which, though the crime rests in tendency only, it may be described by general words, without specifying the means; this happens when the offence is a conclusion of fact arising from a variety of circumstances incapable of any precise definition. 1 Stark. 134.-11. The endeavour, attempt, or solicitation, is in general made up of a number of petty circumstances, which cannot be set out upon the record. 1 Stark. 136.

(x) 1. In an indictment for obstructing an officer in the execution of process, it must distinctly appear that he was authorised to execute it, and therefore that he was

M m 4

an