If it be for forging a cocquet for 5 sarcinis lini, it is sufficient. Mod. Ca. 87. So, contra formam statuti, helps any uncertainty not material. 2 Rol. 227.(s) (G 6.) Ought to have proper terms of law. So an indictment ought to make use (t) of terms proper (u) or peculiar (x) to the offence (y): as, an indictment for treason ought to say, proditoriè. (z) And description of the offence should be expressed upon the record; except, indeed, in those instances, (and the exception confirms the observation,) where the legislature has peremptorily directed that some general form of words shall be used. Ibid. (s) 1. The rule here alluded to is, that if the statute, whereon an indictment is founded, be particularly recited, the general conclusion contrà formam statuti, after the allegation of the fact, will supply an omission in it of a circumstance mentioned in the statute, which omission would otherwise have been fatal; for that, since the statute is particularly recited, and the defendant is charged with having committed the offence against the form of it, and it is impossible that he could have so done, if any circumstance expressly required by the statute had been wanting, the offence may be said to be as fully set forth in the very words of the statute, as if such words had been repeated in the allegation of the offence. 1 Starkie, 210. Savil. 33. Vide, 2 Hawk. c. 25. s. 114. Rol. 81.2. But this reasoning, says Mr. Starkie, appears to be defective; for if the omission of one material circumstance could be supplied by the recital, why might not the omission of a second, and where could the line be drawn? The principle once admitted would lead to the conclusion, that an indictment would be sufficient which barely recited the statute, and then averred that the defendant at such a time and place transgressed it. It would also be left to the jury to say, whether the fact omitted on the record, but proved in evidence, was a fact, the doing of which could be an ingredient in the offence, which is a pure matter of law, and ought to appear judi, cially to the court. And besides this, there could be no averment of time and place annexed to the circumstance omitted. Now, if the circumstance had been averred, it must have been averred with time and place, and if the omission of time and place to the averment would have vitiated the indictment, it can scarcely be contended, that the omission of the averment altogether would impugn the indictment. 1 Starkie, 210. 211. (t) But, unless where a precise mode of description is prescribed in an indictment, it is immaterial in what part of it the necessary allegations are found. 2 East, 35. (u) 1. The averment that the act was unlawfully done, is no case essential, unless it be part of the description of the offence, as defined by some statute; and the same holds of the words wrongfully, unjustly, wickedly, wilfully, corruptly, to the evil example, falsely, maliciously, and such like. 1 Stark. 73. 74. 2 Ro. Ab. 82. Sty. 392. 2 Wm. Saund. 242.-2. Charging an act to have been done unlawfully and injuriously, includes the presumption that there existed any necessity for the defendant's doing it. 4 M. & S. 73, 3. Though it is still open to him to shew in evidence that there did Ibid. 4. And it seems that, whether an offence be of common law or statutable origin, if a prima facie illegality be shewn, the indictment will be sufficient, it being in general unnecessary to negative any excuse or justification, the affirmative of which would be an answer to the charge. 1 Starkie, 159. 5 T. R. 84. Ld. Raym. 1370. 1 Sidf. 303. 2 Hawk. c. 25. s. 112.-5. But the rule, says Mr. Starkie, of Hawkins, that if there be any description in the negative, the affirmative of which would be a good excuse for the defendant, the proof of it lies on him, and need not be stated in the indictment,' is too general, for it has been holden, by great authorities, that a negative description must be averred, where it is an essential ingredient in the offence. 1 Starkie, 160, 161. (a) But, except in particular cases, where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use. 5 East. 244. 1 Smith, 437. (y) 1. Though for many of these terms sufficient reasons can be given, others there are which may not so readily be traced to their original; unless we consider them as invented by the lawyers of old, to confine the conduct of a cause to themselves; or as the And contra ligeanciæ suæ debitum. R. 3 Lev. 396. Ca. Parl. 186. 4 Mod. 165. Skin. 442. So an indictment for felony ought to say, felonice. For murder, it ought to have the word, murdravit. Or, murderavit. Per Coke, 1 Rol. 137. For burglary, the word burglariter, or burgulariter. Vaux. (c) St. 26. a. (a) Dy. 261. a. (b) R. 4 Co. 39. b. the offspring of chance, made sacred by time and habit; or ascribe them to a zeal for that system and method, which ennoble even the meanest art, and give it the air of science and wisdom. But from whatever source they sprung, it seems proper to preserve them, to avoid as well the possibility of error, as the disputes that may arise on every innovation. And, however untenable upon principles of reason, it is sufficient that they are warranted by precedent; for, observed long ago by Mr. Justice Staunford, upon the question whether an averment by the term licet was sufficient, "if it was the usual form to allege it by licet, then I would hold with it." And after instancing certain cases in which the omnipotence of custom over reason was conspicuous, he concludes, "wherefore we ought to adhere to the usual form; but in this case it was not the usual form to allege the election under the word licet, as you may see in the book of entries; wherefore since he was not tied down to any usual form, but was at liberty to take such words as were proper for the matter, and has not done so, we ought not to hold with the words more than they will warrant." And, again,upon another occasion, though at the first an avowry was held bad, for want of being averred; yet afterwards, says the reporter, the prothonotaries searched their precedents, and told the justices that the common usage was to make the avowry without averment; with which the justices were satisfied.-2. Mr. Starkie, in his Criminal Pleading, p. 69. 70., has the following judicious observations: "The law distributes crimes into three great classes; treasons, felonies, and misdemeanours inferior to felony. Each of these is attended with peculiar incidents, both before and after conviction. It is, therefore, one important office of an indictment to specify, in technical language, the particular genus of crime imputed to the defendant, that he may avail himself of those advantages which the law allows him, that he may be excluded from those which the law withholds, and that the court may be authorised, after conviction, to inflict the appropriate measure of punishment. A strict adherence to such language, may, in some cases, appear too nice and critical to serve the ends of justice: yet it seems founded upon many strong and substantial reasons. For instance, by successive decisions, the legal value and weight of a term or phrase of art is ascertained, and should a doubt arise as to its meaning, reference for the purpose of removing it, may be had to former authorities, whilst every new expression would introduce fresh uncertainty, and the benefit to be derived from precedent would be wholly lost. (z) 1. But if the treason itself be laid to have been so committed, every overt act need not be so laid. 4 St. Tr. 701. Salk. 633. 1 East, P. C. 116. — 2. Petit and inferior treasons are usually alleged to have been committed felonicè as well as proditoriè. 1 Stark. 71. Fost. 329. (a) 1. If a statute enacts that specified facts shall amount to the crime of having feloniously stolen another's property, by stating those facts, without more, the crime of larceny is sufficiently charged; it is not indeed totidem verbis charged, that he feloniously stole another's property, but that is charged which the law has declared shall be equivalent thereto. 3 M. & S. 539.- 2. Hence, too, such statement warrants the conclusion, and so the jurors say, that the prisoner feloniously did steal.' Ibid. (b) 1. 1 Hale, 450. 466. Yelv. 205. 4 Com. 307.-2. So the offence must be alleged to have been committed of the defendant's malice aforethought. 1 Stark. 71. -3. Where the death arises from any wounding, beating, or bruising, it has been said, that the word struck is essential. 2 Hale, 184. 1 Bulst. 124. 2 Inst. 319. 2 Hawk. c. 23. s. 82. Cro. Jac. 635. 5 Rep. 122. 1 Stark. 72.-4. And that the wound, or bruise, must be alleged to have been mortal; nor can its omission be supplied by the averment which is in all cases necessary, that the party died of the stroke. 1 Stark. 72. Leach, 112. 2 Hale, 186. 1 Hawk. c. 23. s. 82. Kel. 125. (c) In an indictment for burglary, the essential words are, feloniously and burglariously broke and entered the dwelling-house in the night time; and the felony intended to be committed, or actually perpetrated, must also be stated in technical terms. 1 Hale, 549. 1 Stark. 73, And And burgaliter is not sufficient. 4 Co. 39. b. 40. a. (d) For a rape, it ought to have the word, rapuit. (e) St. 96. a. (f) For scolding, communis rixatrix; for calumniatrix, is not sufficient. Mod. Ca. 11. (g) So an indictment (h) ought to conclude, (i) contra pacem. (k) R. 2 Cro. 527. Cro. Car. 584. R. per 3 J. Mod. Ca. 128. (1) If an offence be in another reign, contra pacem nuper regis et regis R. Yel. 66. (m) nunc. If (d) 1. In case of simple larceny, the words' feloniously took and carried away the goods,' or took and led away the cattle,' are essential. 1 Hale, 504. 2 Hale, 184. 1 Stark. 73.-2. So in an indictment for robbery from the person, the words 'feloniously, violently, and against the will,' are essential; and it is usual, though it seems to be unnecessary, to allege a putting in fear. 1 Stark. 73. 1 Hale, 534. Fost. 128. 3 Inst. 68. 3. Though it has been held, that violenter is not an essential term of art. East, P. C. 783. 1 Stark. 73.-4. Piracy must be alleged to have been done feloniously and piratically. 1 Hawk. c. 37. s. 6. 10. —— 5. Vide supra in notis. (e) Nor will the omission be aided by the words carnaliter cognovit. 1 Hale, 628. 2 Hale, 184. 1 Inst. 190. 2 Inst. 180. 2. Which also are essential. 1 Hale, 632. 5 Inst. 60. Co. Lit. 137. 2 Inst. 180. 3. And it is usual to aver that the rape was against the will of the female. 1 Stark. 72. (f) In an indictment for an unnatural crime, the descriptive words of the statute taking away clergy, must be used, and it is not sufficient to say contra naturæ ordinem rem habuit veneream et carnaliter cognovit. 1 Stark. 72. East, P. C. 480. 3 Inst. 59. (g) 1. And an indictment for being a common scold must, it is said, be laid, ad commune nocumentum. Str. 688, 1246. sed quære, et vide infra. — 2. In an indictment for maintenance, the word manutenuit should be inserted. 1 Stark. 73.-4. And the word 'riot' seems to be required in all indictments to that offence. Ibid. Wils. 325.5. In the case of mayhem, the words' feloniously, and did maim,' are essential. 3 Inst. 118. 2 Hawk. c. 23. s. 15. 16. &c. c. 25. s. 55.-6. So extorsivé in the case of extortion. Salk. 680. Ld. Raym. 1265. 2. (h) As well under a statute as at common law. 2 Hale, 188. (i) 1. In homicide it is necessary, and in perjury usual, for the jurors to draw the legal conclusion, descriptive of the crime charged, from the premises, and aver it for. mally upon the indictment. 1 Stark. 195. 2. But the conclusion ad commune nocumentum of the king's subjects, in the cases of nuisance and some other offences, though usual, is not necessary. Ibid. 2 Hawk. c. 25. s. 59. Sed vide Str. 688. 1246. contra. -3. Although the conclusion of an indictment is a deduction of law, yet, when a necessary form, it constitutes so material a part of the indictment, that any defect therein vitiates. 3 M. & S. 553. (k) 1. Domini regis;' since contrà pacem alone, is insufficient. 2 Hale, 188.-2. And one general conclusion is sufficient, though the indictment contains several counts. Ld. Raym. 583. 1 Stark. 198. — 3. Though the contrary seems to have been the opinion in 2 T. R. 581. - 4. And also that in an indictment for offences against a statute, each count should conclude contra formam statuli. Ibid. (4) 1. The necessity of these words not being taken away by 37 Hen. 8. c. 8. 2 Hale, 188. — 2. But they are neither necessary nor proper in cases of mere omission or neglect. 1 Vent. 108. 111.-3. Or where the offence rests in tendency, or partakes of the nature of a civil proceeding. 1 Stark. 196. 2 Hawk. c. 25. s. 92. 1 Keb. 360. Rast. 409. 412. Salk. 380. -4. Though, if used, they are sur 367. to 372. 390. plusage. Salk. 380. (m) 1. Upon this subject Mr. Starkie, premising that the offence either is confined wholly to a preceding reign, or, having been committed in a preceding reign, is continued into the present, or having been begun in a preceding reign, is consummated in the present, or is confined wholly to the present; lays down the following rules. 2. Where the offence is confined wholly to a preceding reign, it must be laid against the peace of the late king. 3 Burr. 1901. 1 Stark. 197.-3. Though, if it conclude also against the peace of the present king, the latter branch of the conclusion may be rejected as surplusage. Cro. Jac. 377. 2 Hale, 179. 1. Stark. 197.-4. If a man be indicted for erecting a weir in one reign, and continuing it in a second, and conclude If founded upon a statute it ought to conclude, contra formam statuti. (n) R. 1 Sal. 370. R. 2 Rol. 38. (0) And, contra formam statuti, is bad, where there are several statutes in the case. (p) R. 2 Cro. 142. (q) And, contra formam statuti prædicti will be bad, where the statute is misrecited. (r) Per Twisd. Ray. 192. Lut. 140. So, contra formam statuti, shall not be rejected, though for part it would be good by the common law. R. 4 Leo. 49. (s) Or, though the offence was at the common law, and the statute adds a penalty. Mod. Ca. 17. (t) But by the st. 37 H. 8. 8. The omission of, vi et armis, viz. gladiis, baculis et cultellis, does not vitiate. R. 2 Lev. 221. (u) So the omission of, contra pacem, does not vitiate in an indictment for a non-feafance. R. 1 Vent. 108. 111. R. 1 Sal. 381. Or, contra pacem nuper regis, where the continuance of the fact is the offence, and the original of it only inducement. R. Yel. 66. So, contra formam statuti, is not necessary where the offence was by the common law, and the statute adds only a penalty, &c. R. 1 Vent. 13. Sal. 460. 1 Sid. 409. Comb. 371. R. 2 Mod. Ca. 11. (x) And, clude that it was erected and continued against the peace of the then king, without adding against the peace of the late king, it will be defective; for the gist of the indictment is the erecting, which wrong was done in the reign of the former king, and the offence should be laid against the peace of both. 1 Stark. 197. Yelv. 66. 2 Hale, 5. But, thirdly, if in that case the erection had been made mere inducement, and the continuance of the nuisance had formed the gist of the indictment, the conclusion, contra pacem regis nunc would have been good. Ibid. 189. (n) And semble in contemptum regis. 4 Hen. 6. pl. 7. cited 1 Stark. 197. - (0) 1. 2 Hawk. c. 25. s. 117. 2 Hale, 192. 1 Saund. 135. n. (3). 5 Mod. 307. Dougl. 428. .-2. Nor, in default of such an averment, can judgment be given against the defendant. 2 Hawk. c. 25. s. 116. 2 Hale, 192. 251. 1 Saund. 135. n. (3). Dougl. 428. 3. And the rule is the same, where an offence at common law is made an offence of an higher nature by a statute, as where a misdemeanour is made a felony, or a felony treason. 2 Hawk. c. 25. s. 116. Salk. 370. 1 Stark. 216. (p) So vice versa. 2 Hawk. e. 25. s. 117. Cro. Car. 187. Yelv. 116. 2 Hale, 173. Vide (9) 1. As where one statute creates the offence, and another adds the penalty. 2 East, 339. Ow. 155. Cro. Eliz. 750. 2 Hale, 173. Cro. Jac. 142. — 2. And Lord Hale thinks it safer to conclude in the plural, where a statute which has expired is revived by another. 2 Hale, 173. 3. In the following cases, however, a conclusion in the singular is proper: Where an offence is prohibited by each of two statutes. 1 Sid. 548. Leach, 970. Ow. 155. Vide 2 Hawk. c. 25. s. 117.-4. Where the - statute upon which the indictment is founded is explained by another. 2 Saund. 377. 5. Or regulated in its operation. Cro. Jac. 187.-6. Or made perpetual. 2. Hale, 2 Hawk. c. 25. s. 117.-7. Or revived. 1 Stark. 218. Vide supra. -8. Or adopted and continued. 1 Saund. 155. n. (3). 9. Or continued in part. Cro. 173. Eliz. 750. (r) A public statute ought never to be recited. clause declaring it public) must. A private one (without the usual (s) 1. 2 Hale, 171. Cro. Eliz. 231. 307.-2. But the rule seems to be, that where the averment is unnecessary, it will be rejected as surplusage. 1 Stark. 217. Say. 225. Al. 113. 1 Salk. 212. 2 Hale, 191. 2 Hawk. c. 25. s. 115. 116. Cro. Eliz. 212. Ld. Raym. 149. 1163. 4 T. R. 202. 5 T. R. 162. Leach, 664. 1 Saund. 135. n. (3), (t) Vide supra, the last note, and infra, in notis. 190. (u) Nor are the words vi et armis necessary in an indictment for a riot. Str. 834. (a) 1. But the offender will be liable to the common-law punishment only. 2 Hale, 1 Saund. 135. 2 Rol. Ab. 82.-2. Where, however, the offence existed at common law, as declared by a statute, the averment may be omitted. 2 Hale, 189. 3. So where the offence existed at common law, but the offender is, under particular circumstances, 4 And, contra formam statuti nuper editi, is well, though the statute is misrecited; for then the court will take notice of the statute. Ray. 192. Lut. 140. So, contra formam statuti, is not necessary, where the offence is a breach of duty, though his duty in this particular was prescribed by statute. R. 1 Sal. 381. Per Eyre, Comb. 205. (y) So, in an indictment for murder, if there be the word, murdravit, ex malitia præcogitatâ is not necessary. Dy. 69, a, (~) (H) When quashed, if deficient. A defective (a) indictment may (b) be quashed upon motion. (c) Or a nolle prosequi may be entered by the attorney-general. Mod. Ca. 262. (d) But not (e) in an enormous crime: as, for treason or felony (ƒ); for the court will put the defendant to his demurrer, or plea. Vide Information, (D. 1. &c.) Nor an indictment for perjury, or forgery, or subornation. 1 Sal. 372. R. 1 Sid. 54. 1 Vent. 370. Or, for extortion. 5 Mod. 13. Or, for a nuisance. 1 Sal. 372. 1 Vent. 570. (g), without a certificate that it is removed. Cro. Car. 584. Acc. Sal, 460. Or, for not repairing an highway, or bridge. 1 Sal. 372. 1 Sid. 140. (h) circumstances, deprived by a statute of some benefit to which he was entitled at common law, the averment is unnecessary, though it would not be improper, 1 Stark. 216. 2 Hale, 190. 288. 1 Saund. 155. n. Aleyn. 43. Sty. 86. Ld. Raym. 150. 1 Salk. 2 Hawk. c. 46. s. 43. Kel. 32. 212. (y) Since an indictment lies at common law for obstructing the execution of a power conferred by statute, it should not conclude with contra formam statuti. Doug.441. (z) Supra in notis, contra. (a) 1. As from an apparent want of jurisdiction. Str. 1088.-2. Thus an indictment at the quarter sessions for perjury at common law. Str. 1088. 1 T, R. 316. -3. Of form. Salk. 376. 1 Stark. 283. Andr. 230.-4. Misjoinder of defendants. Str. 623.921. Stark. 283.-5. Or want of a substantial averment. Andr. 226. 230. Dougl. 153. 1 Stark. 283, 284. Str. 1268. (6) 1. But it is altogether discretional. Burr, 1127.-2. And where the prosecutor moves to quash his own indictment, terms may be imposed as a condition. 3 Burr. 1648. 1 Blk. 460. (c) 1 Starkie, 281. Cro. Car. 584. Pal. 389. Sidf. 54. 247. 1 Keb, 45. 2 Keb. 128. Salk. 372. 4 St. Tr. 154, Str. 602. Burr. 1127. 1 Wils. 325. 1 T. R. 316. 4 T. R. 155. (d) 1. When an information is filed by the attorney-general ex officio, the Court will quash it upon his motion, if there be cause; but if the information be exhibited by a private person, the Court will not quash it upon motion, because the defendant is entitled to costs. Sidf. 152. 1 Starkie, 282.-2. Since informations are preferred for great offences only, and such as are likely to prejudice the commonwealth, the Court, it is said, will not quash one upon the defendant's motion. Vin. Abr. Inf. 415. 1 Stark. 285. (e) Unless the defect is very gross and apparent, 1 Blk, 275. (f) If in an indictment for felony, containing several counts, it appear before the defendant has pleaded or the jury are charged, that it is meant to try him for more offences than one, it has been the practice to quash the indictment, lest the prisoner should be confounded in his defence, or prejudiced in his challenge of the jury, since though he might object to a juryman trying one of the offences, he might not the other. If it is not discovered in time, the judge may put the prosecutor to elect between the charges. 3 T. R. 106. (g) Andr. 220. (h) 1. Or against overseers for refusing to pay over money to their successors. Str.1268. -2. Or against a party for not attending a mayor to execute his warrant. Str. 1211. VOL. IV. Nn Or, |