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* An indictment pro contrafacť monetum ad instar pecun' domini regis ought to show, ad instar what pieces, viz. groats, shillings, &c.
(G 4.) And not supplied by innuendo. So words uncertain cannot be supplied by an innuendo: as, an indictment for treason for saying, We have had two wicked kings (innuendo Cha. I. and Cha. II.) if they (innuendo the people) would stand to their principles, we should conquer our enemies (innuendo the king and all his loyal subjects,) is bad; for an innuendo cannot determine the sense of the words. R. 3 Mod. 53. (y)
What is a sufficient certainty. But certainty in an indictment to a general intent, is sufficient. Co.L. 303. a. 5 Co. 121. a. (2)
an officer of the court. This fact is not apparent from an averment that the judges of a court of record for the town and county of P., by their writ issued out of the said court, directed to A. and B. serjeants at mace of the said town and county, did command them, &c. 5 East, 304. i Smith, 555. – 2. And the act of obstruction must be shewn. Str. 699. – 3. Where, upon such an indictment, a general verdict is given for the crown, whence it appears that the officer was not authorised to execute the process, it will be intended that the assault was for preventing what would have been an unlawful proceeding, and the judgment, therefore, will be arrested in toto. 5 East, 304. i Smith, 555.
(y) 1. Few subjects have occasioned more discussion, than the innuendo in plead. ing; and various descriptions of its nature and office have been given. The following is submitted to be its office, and the reason why it cannot add to what has gone before. — 2. It performs the office of an interpreter, giving to words or signs a definite meaning, which without it would be ambiguous. — 3. Being a participle, it asserts nothing; and for that reason cannot supply a deficiency; but for that only, since it is immaterial in what part of a count an averment is introduced. - 4. And that a participle asserts nothing appears from considering its nature. Every complete verb is expressive of an attribute ; of time ; and of an assertion. If we take away the assertion, and thus destroy the verb, what remains is a participle: a participle, therefore asserts nothing. See Hermes, b. 1. c. 10. - 5. Now, in order to define an ambiguous expression, it is sometimes necessary to refer to and identify it with extrirsic collateral circumstances, and as, in such a case, those circumstances form a constituent branch of the case, their existence must be averred; not in the innuendoes, for these we have seen are not modes of assertion, but in other parts of the record. — 6. And hence Mr. Starkie's most correct definition of an innuendo in its ordinary sense an averment which explains the defendant's meaning by reference to antecedent matter, (that is) matter which has antecedently been averred. i Stark. 109. – 7. But the conclusion, that since this is the proper office of an innuendo, if it go beyond it, and materially enlarge the sense of the words which it is intended to explain, hy introducing new matter, it will vitiate the indictment, must be thus qualified, that the new matter is introduced participially, since new matter may be introduced in the same sentence with the innuendo by an adjunct thereto in an appropriate form ; thus, though to an accusation he has burnt my barn,' an innuendo' meaning his barn full of corn,' would, without antecedent averments, be, if left to itself, defective; vet there can be no objection against adding thereto, 'which the jurors aver the said A. & B. were then and there discoursing of.' — 8. Farther, it is a rule, that where new matter improperly introduced under an innuendo is superfluous, the sense being complete without it, the innuendo may be rejected as surplusage. 9 East, 93. i T. R. 65. 1 Starkie, 111.--8. But that if any use be made of the innuendo, it cannot be rejected, nor will the defect be aided by verdict. Ld. Raym. 256. 1 Starkie, 111,
(2) Vide supra (G 1.) in notis.
And therefore, an indictment for felony, quod cepit bona cujusdam ignoti, is sufficient. St. 95. b. (a) Or, an horse, &c. of such a value, without mentioning any owner. (6)
(a) i Keilw. 25. 2 East, P. C. 651. 781. - 2. So an indictment for harbouring thieves unknown, is sufficient from the necessity of the case, and the fair presumption which exists that their names cannot be ascertained. i Chit. C. L. 212. Str. 186 497. – 3. So an indictment stating that the defendant cum viginti septem aliis engrosset, has been holden to be sufficient. Cro. Car. 380. — 4. And so in all cases where the name is not known. Supra. — 5. But a false averment of ignorance will induce an acquittal. Supra. – 6. And though indictments have formerly been allowed, which charged the defendants with suffering divers bakers to bake, &c. against the assize, for distraining divers persons without cause, without specifying their names; yet according to later authorities such indictments are insufficient. 2 Hawk. c. 25. s. 71. Bac. Abr. Indictment, (G 2.) Bro, Indictm. 21. 2 Rol. Abr. 80.
(6) 1. Personalty : The owner's name of the stolen property should be given. 1 Hale, 512. 2 Hale, 181. 2 Hawk. c. 25. s. 71. Leach, 578. - 2. Or averred io be unknown.' Ibid. - 3. Which, being the fact, is sufficient; whence, it is judiciously observed, that though the st. 26 G. 2. c. 19., provides that a person stealing part of a wreck, may be indicted and convicted, though the owner cannot be ascertained; yet that, it seems, an indictment at common law, stating such goods to be the property of an unknown, would have been sufficient. 1 Stark, 192. – 4. If however the owner's name be known, the allegation will vitiate. 2 East, P. C. 651. 781. 3 Camp. 265. n, i Hale, 512. Hawk. b. 2. c. 25. s. 71. 2 Leach, 578. i Chit. C. L. 213. Vide Staunf. 181. b. 2. c. 18. – 5. Where goods are stolen from a special proprietor, they may be described as his or the general owner's property. i Hale, 513, East, P.C 655. Leach, 595. Stark. 190. Summ. 67. Moore, 543.-6. Church goods stolen during a vacancy may be described as bona ecclesiæ, but otherwise not. 7 Edw. 4. 14. Fitz. Ind. 15. Staunf. 95. 2 Hawk. c. 25. s. 71.-7. So those of a chapel stolen during a vacancy, may be described as bona et catalla capella tempore vacationis, but otherwise as bona et catalla capellæ in custodia præpositorum. 2 Hale, 181.-8. Grave cloaths and coffins should be called the property of the personal representative. 12 Rep. 112. 2 Hale, 181.-9. Or not being ascertainable, of an unknown. East, P. C. 655. — 10. And an indictment against a thief, that he found a dead body and stole froin it certain property, is good, without calling the property the goods and chattels of any one. 2 Hale, 181. Bac. Abr. Indict. (G 2.) i Chit. C. L. 214. — 11. Parish goods should be described as belonging to the parishioners, in custody of the church wardens. Cro. Eliz. 145. 179. 2 Hale, 181.–12. The cloaths of a child may, it is said, either be alleged to belong to himself or his father; but the latter seems most correct. Stark. 191. 12. Rep. 113. i Sid. 129. East, P. C. 654. - 13. If goods be stolen from the custody of one in possession as executor, the indictinent may lay the goods either as the executor's as such, or without naming him executor. 2 Hale, 181. Bac. Abr. Indict. (G 2.)
1. Realty : Where an act becomes criminal either solely, or in a greater degree, from having happened in a dwelling-house, or other building; the owner's name must be specified. - 2. Christian and surname. Leach, 286. 379. - 3. And a variance will be fatal. Leach, 104. 272. 286. 351. i East, P. C. 415. 2 Hale, 244, 245. Moore, 466. — 4. Hence it must be specified in indictments for arson. 11 Rep. 29. Cro. Car. 576. Leach, 258, 261.-5. Burglary. i Hale, 550. 2 East, P. C. 514. Leach, 896. Vide Leach, 390. - 6. Stealing in a dwelling-house to the amount of 40s. Leach, 286. 379. – 7. Stealing from lodgings. Leach, 377. 617.-8. And where several inhabit several rooms of a house, part of which house is also occupied by the owner, the house must be averred to be the dwelling-house of the owner, though the offence be committed in the several tenement of another occupier; but if the owner does not occupy any part, each separate tenement may be laid to be the dwelling-house of the tenant. Leach, 104. 272. Cowp. 2. 2 East, P. C. 499.-9. On the contrary, where neither the act is made criminal, nor its criminalty heightened, from its having hapo pened in a dwelling-house or other building; the owner's name need not be specified, nor if specified and mistaken, will the variance signify. - 10. As in robbery. Pye's case. i Stark. 178. Johnstone's case. Ibid. - 11. Maliciously shooting at another. Ibid. Sed vide i Leach, 351. 1 East, P. C. 415. 2 Hale, 244. 245. – 12. And à church is a building within the meaning of 4 G. 2. c. 32., nor need an indictment for
Quod percussit super sinistram partem lateris, is well; for latus is a known part. R. 2 Cro. 95.
So dans plagam, seu contusionem, is well. R. Mar. pl. 127.
Quod languebat a 15° die ad 16m diem, without saying, to what (c)hour in the same day. Mar. pl. 127.
Indictment quod fecit libellum ad tenorem et effectum sequentem. R. I Sal. 324. 417.
Quod fabricavit a lease with the mark of B. cujus tenor sequitur , though the mark is not shewn. R. 1 Sal. 342.
Quod fabricavit scriptum obligatorium ; though it does not say that it purports to be an obligation. R. 1 Sal. 342.
Quod fecit libellum in quo continetur, inter alia, &c. R. Sal. 417.
Quod ipse et 20 alii ingrossaverunt, without saying, et quilibet eorum ingrossavit ; for they might join. Cro. Car. 380.
Quod scienter recepit felones ; though it does not say, that he knew them to be felons. R. 2 Lev. 208. (d)
Quod A. existens such an officer of such age, &c. fecit, &c. without saying, tunc existens (e); for where this word relates to the person, and is not collateral, it shall have a general construction. R. 2 Rol. 226. )
That A. knowing B. was indicted for forgery, concealed a witness against him; it is sufficient that B. was indicted. (g) R. F. g. 122 263. (h)
So surplusage does not vitiate an indictment. R. 4 Co. 41. a. R. 5 Co. 121. b. 2 Mod. Ca. 327.()
stealing lead affixed thereto, state the person in whom the property of frechold was vested. Leach, 318. 2 East, P. C. 593.
(c) Vide supra (G 2.)
(d) 1. Upon an indictment for attempting to seduce a soldier, under 57 Geo. 3. c. 70., the word advisedly was considered as containing a sufficient averment of knowledge, Lcach, 790. i Starkie, 155. — 2. So that an averment of knowledge is virtually included in the assertion, that the defendant endeavoured to seduce. Jbid.
(c) 1. Where it is necessary to aver the situation or character of the defendant at the time of the act or omission, it seems to be settled that it is sufficient to aver that he being such did the act. i Sparkie, 151. 2 Hawk. c. 25. s. 112. Cro. Jac. 610. 2 Mod. 128. Moor, 606. 2 Lev. 229. Ray. 378. Keb. 852. - 2. An indictment against a parishioner for not performing bis highway duty, A. B. and C.D. being surveyors, is sufficient, without saying by whom or upon what day they were appointed. 2 Burr. 832. - 3. So an indictment charging that defendant kept a common, ill-governed, disorderly house, and for his profit unlawfully procured certain ill. disposed persons of ill-fame and dishonest conversation to frequent, and the said persons in the said house to remain, fighting of cocks, boring, playing at cudgels, and misbehaving themselves, is sufficient. 2 Burr. 1232.— 4. So A. being a loose, idle, lewd, and disorderly person, is a sufficient averment. 2 Burr. 864.-5. So scicns. Str. 904.
(f) Charging against 37 Geo. 3. C. 70., an endeavour to incite A. to mutiny, being a soldier, imports that he knew him to be a soldier. B. & P. 180.
(g) The objection to this mode of introducing facts is, that it is done participially, as already explained in the notes to (G 3.) & (G 4.)
(b) 1. Vide supra, (G 3.) — 2. The decision is cquivalent to what is now settled law, that a mere solicitation to commit a crime, though not followed by any act, is an indictable offence.
© 1. Upon which subjeet the rule is, that if the defective averment might, without detriment to the indictment, have been wholly omitted, it shall be considered as surplusage, and disregarded. Stark. 234. 2 Hawk. C. 25. S. 87. 1 Mod. 78. 2. Thus, in an indictment for arson, an allegation that the offence was committed in the night-time, need not be proved. East, P. C. 1021. - 3. So if an indictment for
Nor false Latin: as, præfatæ reginæ. R. 5 Co. 121. b. (k)
So inducement to an offence does not require so much certainty : as, in an indictment for an escape, debito modo (1) commissus, or, by what authority, is not necessary. R. 1 Vent. 170.
Indictment quod A. et B. super C. insultum fecerunt, &c. though as to B. it is found ignoramus. R. Cro. Car. 464. (m)
So an indictment need not ascertain more than shows the offence, (n) not that which aggravates it (o): as, if it be for taking fish out of his pond, it need not name the number or quantity. Per 2 J. Twisd. cont. 1 Lev. 203. (P)
Neither needs there more certainty than the words of the statute (9) import. R. 2 Rol. 226. (r)
robbery from the person aver it to have been committed on the highway, or in the dwelling-house of a person named, it would be unnecessary to prove these allegations, for they form no part of the legal description of the offence, and might have been wholly omitted without any injury to the charge. i Stark. 234. 235. – 4. But a material allegation, which is sensible and consistent in the place where it occurs, and which is not inconsistent with any antecedent matter, cannot be rejected merely hecause it is inconsistent with a subsequent material averment. Stark. 236. 5 East, 244. – 5. And if a matter be alleged which might have been omitted altogether, but which shews that the complaint is ill founded, it cannot be rejected as surplusage. i Stark. 237. East, P. C. 229. Plowd. 84. Bac. Abr. Indict. 556. 4 Rep. 42. 2 Hawk. c. 23. s. 89. i Saund. 287. Infra, Pleader, (C 29.)
(k) Indictments must now be framed in the English language. Vide supra. · It seems that an indictment against a magistrate for granting an ale-licence, after it has been refused at a general meeting of justices for the division, alleging that the meeting was duly held, not shewing the manner in which, is sufficient 4 T. R. 451.
(m) Vide supra, (A) in notis.
(n) 1. In an indictment for a breach of duty in disobeying orders, it need not be averred that the orders were in force when the defendant is charged with neglecting them; since, if then revoked, it is matter of defence. 5 T. R. 607. – 9. So where commissioners are empowered to issue a written notice only under certain formalities, and they are indicted for non-payment of the costs of an appeal from such notice, the indictment need not aver an observance of those forms, since as against them. selves all will be intended right. 8 East, 41.
(0) 1. Matters which aggravate the crime need not be detailed, unless they change the nature of the offence. I Str. 139. 140. Fost. 194. 2. And the distinction seems to be, that where such matters cannot be made the subject of a distinct charge, they may be shewn in evidence; where they may be made such, they must be the subject of a distinct proceeding. i Str. 140.
6) 1. The indictment, in this case, charged the defendant with stealing quosdam pisces; and it was not directly adjudged that it was good, but merely that the defendant ought to plead to it. 2 Keb. 178. Lev. 203. Andr. 162. 2 Hawk. c. 25. 8. 74. - 2. And the rule seems to be well settled, that the number of the several individual things stolen, be expressed. i Stark. 185. 2 Hale, 182, 183. - 3. In an indictment, however, for counterfeiting the king's coin, though it is necessary to specify the kind of coin, yet not the number 2 Hale, 127.-4. And an indictment for embezzling a sum of money, need not shew of what monies the sum was made up. 3 M. & S. 539.
6) 1. An indictment founded upon a statute must strictly follow the words of the act, and state all the circumstances enumerated by the statute in defining the offence. 2 Hale, 170. 193. 535. Fost. 423, 424. Staunf. 130 1 Leach, 267.- 2. And therefore an indictment upon 7 Geo. 2. c. 21. was holden to be defective for not stating the assault to have been made with an offensive weapon, or that a demand was made of money or goods. 1 Leach, 267. – 3. With respect to provisves and exceptions, the rule is laid down by Lord Hale, that where an offence is made felony, or otherwise punishable by act of parliament, though the indictment must take in the circumstances which, in the body of the act, make up the offence, yet if, by proviso in the same statate, or by any subsequent statute, some cases or circumstances are
excepted excepted out of the act, the indictment need not mention them, and qualify the offence so as to exempt it out of the proviso; but the party shall have the benefit of the proviso by pleading not guilty, and in the same manner shall have advantage of the subsequent statute to excuse him by virtue of that statute. 2 Hale, 170. Poph. 93. 94. i Jones, 157. i Lev. 26. i Starkie, 209. – 4. Which holds, even where the proviso is noticed in the purview of the statute. Poph. 93. 94. 2 Hawk. C. 25. s. 113. i Starkie, 209. - 5. As to the terms and phrases used in the statute, Mr. Starkie lays down the general rule to be, that the defendant must be brought within all the material words of the statute; for many of these have been holden to be so peculiarly descriptive of the offence, that they cannot be dispensed with. Fost. 424. Cro. Jac. 607. I Starkie, 211.-6. Which rule applies equally to offences created by a statute, and to common-law offences for which the offenders are by a statute either subjected to a new punishment, or deprived of a common-law benefit: in the former case, if such a material word be omitted, the offender cannot be punished at all ; in the latter, he is liable to the common-law penalty only. Starkie, 212. Leach, 82. 556. — 7. Hence, in an indictment upon 5 Eliz. C. 9., the term wilfully' must be inserted; because the term wilful in the statute is a material description of the offence. Leach, 71.-8. So an indictment on the black act for shooting at another, must charge the offence to have been done wilfully and maliciously, as well as feloniously, since as the legislature has, by the special penning of the act, used both the words
wilfully' and 'maliciously,' they must be understood as a description of the offence. Leach, 493. 9. In some instances, however, the use of the identical words used by the legislature has been dispensed with, and their place holden to be supplied by expressions deemed to be equivalent. Thus it has been holden, that the words wilful murder,' might be supplied by laying the killing to be of malice aforethought. i Stark. 213. – 10. So that the words in an indictment 'excite, move, and procure,' were equivalent to the words of the statute, counsel, hire, or command.' And. 195. 1 Stark. Ibid.-11. Upon this case Mr. Justice Foster observes, I take this to be good law, though I confess it is the only precedent I bave met with where the words of the statute have been totally dropped ; and I the rather incline to this opinion, because I observe that the legislature, in statutes made from time to time concerning accessories before the fact, hath not confined itself to any certain mode of expression, but hath rather chosen to make use of a variety of words, all terminating in the same general idea. — 12. But, subjoins Mr. Starkie, if the words of the statute may be abandoned in describing an accessory before the fact, and can be supplied by equivalent words, there seems to be no sufficient reason, why the doctrine of substitution should not extend to other cases. The reasoning used by Mr. Justice Foster seems carried a great length, and to support it, two steps are necessary: first, the words of a whole class of statutes are construed to be descriptive of an accessory before the fact; and, secondly, it must be contended, that such an accessory may be described in the language of the common law, without reference to the terms of the statute. It appears indeed that the part of the report, from which the above extract is taken, was not delivered in court; so that the dictum which has been cited, does not bear the same stamp of authority with a position publicly and judicially advanced by so able a judge. 1 Starkie, 214. – 13. Great difficulty, he continues, exists in drawing the precise line, which shall ascertain at once the latitude which ought to be permitted in the description of offences for the purposes of justice, and that wholesome caution and strictness, which ought to be observed for the avoiding of confusion, and the exhibiting of the defendant's guilt with certainty upon the face of the record; in order that substantial justice may not be frittered into empty form on the one hand, and that the life and liberty of the subject may not be placed in jeopardy by ignorance or carelessness on the other. But at all events, where an indictment is founded upon a statute, reason and convenience seem to require, that the terms and expressions used by the legislature as descriptive of the offence, should be adopted in framing that indictment; the insertion of others does not seem justifiable on any principle, for a substituted word or phrase can never so directly and pointedly support the charge as the one used by the legislature. Starkie, 214, 215.
(r) 1. But it constantly happens, that a description, closely following the words of the statute, is not in itself sufficiently minute and specific. As where the indict. ment is founded on 33 Hen. 8. against obtaining money by means of false tokens, or upon 30 Geo. 2. c. 24. against obtaining money or goods by false pretences; in these and numerous other instances, it has been holden to be necessary to specify the false tokens, the false pretences, and other means by which the offence has been committed, upon the face of the record. 1 Starkie, 200. 2. And therefore, says Mr. Starkie, it may be assumed that there is no difference between common law and statutable offences, as far as regards the general rules according to which the expanded