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assembled, without any lawful authority from Her Majesty, or the Lieutenant, or two justices of the peace of the county of the city of Dublin, or of any county or riding, or of any stewartry, by commission or other
wise, for so doing.”
of there being no averments in any of them that the meeting and assembly
1 and sentenced to seven years' transportation, at the June IN ERROR. sittings, 1848, of the Court of Oyer and Terminer and General v. Gaol Delivery for the County of the City of Dublin, before The Queen. Blackburne, C. J., and Doherty, C. J., upon an indictment under Illegal training, the 60 Geo. 3, c. 1, for illegally training and drilling to the use of 60 Geo. 3, c. 1. arms, &c.
The indictment contained three counts.
The first count charged that, the defendant on the 16th day of Indictment. April, in the 11th year of the reign, &c., with force and arms, at Great Ship-street, in the county of the City of Dublin, “unlawfully was present, and did then and there attend a certain meeting and assembly dangerous to the peace and security of Her Majesty's liege subjects, and then and there prohibited by law, for the purpose of training and drilling to the practice of military exercise, movements and evolutions, divers persons, to wit (naming them), and then and there did train and drill to the practice of military exercise, movements and evolutions the said (again naming the parties), without any lawful authority from Her Majesty, or the Lieutenant, or two justices of the peace of the said county of the city of Dublin, or of any county or riding, or of any stewartry, by commission or otherwise, for so doing, against the peace of our said lady the Queen, her crown and dignity, and contrary to the form of the statute in such case made and provided.”
The second count was the same as the first, but charging the defendant that he“ did then and there assist in training and drilling to the practice of military exercise,” &c. the parties named.
The third count charged the defendant that hes unlawfully did train and drill to the practice of military exercise, movements, and evolutions, the said (naming the parties) being then and there unlawfully assembled without any lawful authority from Her Majesty, or the Lieutenant, or two justices of the peace of the county of the city of Dublin, or of any county or riding, or of any stewartry, by commission or otherwise, for so doing, against the peace, &c., and contrary to the form of the statute in such case made and provided.”
PATRICK The following errors were assigned :-
any of the counts thereof; that the meeting and assembly men0. The Queen. tioned, was a meeting and assembly “ of persons for the purpose Illegal training,
in of training and drilling themselves, or of being trained or drilled 60"Geo. 3, c. 1 to the use of arms, or for the purpose of practising military exer– Indictment. cise, movements or evolutions.”
Secondly. That there was no averment in any count of the indictment, that the meeting therein mentioned was a meeting or assembly without any lawful authority from Her Majesty, the Lieutenant, or two justices of the peace for the county of the city of Dublin, or of any county or riding, or of any stewartry, by
commission or otherwise. Argument for Stritch, for the plaintiff in error.—The only clause of the act, plaintiff in
60 Geo. 3, c. 1, to which it is necessary for the purposes of the present argument to call the attention of the court, is the first. That clause enacts, “ That all meetings, and assemblies of persons for the purpose of training or drilling themselves, or of being trained or drilled to the use of arms; or for the purpose of practising military exercise, movements, or evolutions, without any lawful authority from his Majesty, or the Lieutenant, or two justices of the peace, of any county or riding, or of any stewartry, by commission or otherwise for so doing, shall be, and the same are hereby prohibited, as dangerous to the peace and security of his Majesty's liege subjects and of his government; and every person who shall be present at, or attend any such meeting or assembly, for the purpose of training and drilling any other person, or persons, to the use of arms, or the practice of military exercise, movements or evolutions; or who shall train or drill any other person or persons, to the use of arms, or the practice of military exercise, movements or evolutions, or who shall aid or assist therein, being legally convicted thereof, shall be liable to be transported for any term not exceeding seven years, or to be punished by imprisonment not exceeding two years, at the discretion of the court in which such conviction shall be had; and every person who shall attend or be present at any such meeting or assembly as aforesaid, for the purpose of being, or who shall at any such meeting or assembly, be trained or drilled to the use of arms, or the practice of military exercise, movements, or evolutions, being legally convicted thereof, shall be liable to be punished by fine and imprisonment, not exceeding two years, at the discretion of the court in which such conviction shall be had.” All the rules which affect indictments at common law, relate also, and apply to, indictments on statute; whatever certainty.--whatever precision-is necessary in the one, is also required in the other; all indictments must be certain as to the fact, circumstances and intent, constituting the offence. The offence must appear clearly on the face of the indictment; all the facts and circumstances constituting it must be distinctly and specifically set forth. The omission of any fact or circumstanco, being a material
ingredient in the offence vitiates the pleading. As to indictments PATRICK for offences created by statute, the rule is thus laid down in Arch- GOGARTY,
IN ERROR, bold's Criminal Pleading, page 50, edition 1846 : “ An indictment for an offence against the statute must with certainty and pre- THE QUEEN. cision charge the defendant to have committed, or omitted, the me
Illegal training, acts, and the circumstances, and with the intent, mentioned in the 60 Geo. 3, c. i statute; and if any of these ingredients in the offence be omitted, --Indictment. the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict (Lee v. Olarke, 2 East, 333); nor will the conclusion, contra formam statuti, cure it” (2 Hale, 170.) This rule, thus laid down by Mr. Archbold, has been uniformly enforced, and with the utmost strictness; so that it has been held that not even the fullest description of an offence, even in the terms of a legal definition, was sufficient with. Argument for out keeping close to the expressions of the statute: Foster, 424. or The rule is thus stated in 3 Bacon's Abr. 113, tit. Indictment: “It is a general rule, that unless the statute be recited, neither the words contrà formam statuti, nor any periphrasis, intendment, or conclusion, will make good an indictment which does not bring the offence within all the material words of the statute.” So also in 2 Hawkins P. C. 249, sect. 77: “No periphrases (5 Co. 121) or circumlocution whatsoever will supply the want of those words of art which the law hath appropriated for the description of the offence; from whence it follows, that an appeal of death cannot (Dyer, 261; Cro. Jac. 20; 1 Edw. 4, 26) amount to a charge of murder, without the word murdravit, let it be never so exact and particular in setting forth the malice and all other circumstances of the killing ; neither (E. C. 82, 24, 96 ; 9 Edw. 4, 26 ; 20 H. 7,7; 1 Inst. 124) can an appeal of rape be sufficient without the word rapuit, &c.; nor any of the appeals above mentioned without the word felonice." "So necessary,” says Mr. Chitty, in his Treatise on the Criminal Law, vol. 1, 283, "has it been deemed to pursue precisely the language of the statute, that in an indictment for the actual murder of the king, the compassing and imagining is laid as the treason in the terms of the statute, and the king's death itself laid only as an overt act of treason.” “It was resolved that the indictment should be for compassing the death of the late king (the very compassing and imagining the king's death being the treason within the statute; 25 Edw. 3")(Kelyng, 8.) It is so admitted that an indictment upon a penal statute must pursue precisely, and with certainty, the expressions—the words,—which the Legislature has appropriated to define the offence, that it is always to waste the time of the court to cite authority after authority in support of the proposition. It has long been a settled point, and is now a first principle, fully recognized by statute. The 32nd sect. of 9 Geo. 4, c. 54 (an Act for improving the Administration of Justice in Criminal Cases in Ireland), after providing that certain formal defects shall not stay or reverse judgment after verdict, concludes thus,—“And when
providiministration sect. ore first the proposif the
PATRICK the offence charged shall be an offence theretofore created by GOGARTY, statute, or subjected to a greater degree of punishment, or ex
Un cluded from the benefit of clergy, by any statute, the indictment THE QUEEN. or information shall, after verdict, be held sufficient if it describe
: the offence in the words of the statute creating the offence, or preIllegal training, 60oGeo. 3. c. scribing the punishment, or excluding from the benefit of clergy.” - Indictment. It is only necessary to cite a very few cases to the court, illustrat
ing the rule, and showing with what strictness and uniformity its observance has been enforced, in order to demonstrate that the indictment here is framed in direct violation of the rule, and in order to satisfy the court that not only does it not pursue the expressions,—the words defining the offence created by the statute,
—but that, by not pursuing the statute, it omits an ingredient Argument for material to the constitution of the offence. Here, then, is a plaintiff in
variance, not merely consisting in the introduction, or alteraerror.
tion, or omission of words purely superfluous and unnecessary,but a whole passage, consisting of material words descriptive of the offence, is omitted. In The King v. Cox (2 Bulstrode, 258), the indictment was for a forcible entry; George Croke took exception to quash the indictment, for that the conclusion thereof, (manu forte) et contra coronam et pacem regis, was omitted also, because the same was taken before one justice of the peace only; also, it did not appear upon what statute this indictment was taken, there being two statutes. The whole court was clearly of opinion that the indictment was not good, and so by the rule of the court the same was quashed afterwards. In the case of The Queen v. Moore (2 Lord Raymond, 791), the defendant was convicted upon the statute: (3 Will. & M. c. 10, s. 2.) The conviction was removed into the Queen's Bench by certiorari and quashed, “ because it says only that he (the defendant killed deer in quodam loco, in which they had usually been kept, without saying inclosed.” Here the omission of the word “ inclosed,” used in the statute, was held sufficient to vitiate the conviction, although it was stated that the defendant had “killed the deer in a certain place in which they had usually been kept.” In 3 Dyer, 363 a, A. was indicted upon the statutes 1 & 13 Eliz. 1 & 2 of præmunire, for aiding one B., knowing him to be a principal maintainer of the authority and jurisdiction of the Bishop of Rome, &c., with these words in the indictment, “ against the form of the statutes aforesaid.” The indictment was held to be insufficient because the words of the statute “upon purpose, and to the extent to set forth and extol," 8c. were omitted. The words “ against the form of the statutes" not curing the defect. In a case reported in Noy, 171, A. was indicted upon the statute 5 & 6 Edw. 6, c. 14, that in the churchyard, such a day, extraxit gladium against J. L. et ipsum percussit, and because the statute was, “if any person malitiosé strike another, or shall draw any weapon with intent to strike any person, and the indictment was quod extraxit, but does not say ad percutiendum, and because it is quod percussit without saying malitiose, the party was
discharged upon motion in arrest of judgment.” There could not be PATRICK
GOGARTY, a much stronger instance of the strictness with which the general rule has been enforced than that which this case affords; although the indictment stated that the defendant extraxit gladium against The QUEEN. J.L.et ipsum percussit, from which the court might well infer that he ne had acted maliciously. Yet, the omission of that word, and because 60°Geo. 3, c. 1 it was averred that the defendant had actually done that which the Indictment. statute made it an offence to intend to do, the indictment was pronounced bad, and judgment was arrested. So, in an indictment upon the repealed statute (5 Eliz. c. 11, s. 2), which makes it high treason to clip round or file any of the coin of the realm " for wicked lucre or gain's sake,” it was necessary to charge the offence to have been committed for “ wicked lucre and gain's sake :" (1 Hale, 220.) And in an indictment on the statute (9 Geo. 4, c. 31, s. 12) charging the prisoner with “ feloniously, wilfully, and Argument for
plaintiff in maliciously cutting," is not sufficient, the words of the statute being “unlawfully and maliciously:" (The Queen v.Ryan, 2 Moo.C.C. 15.) An indictment upon the repealed statute (2 Geo. 2, c. 25) which made the stealing of “ bank notes” felony, charging the defendant with stealing “a certain note, commonly called a bank note,” was holden bad, because it did not follow the description of the property in the statute : (King v. Craven, R. & R. 14.) In that case, although the words of the statute, “bank note” were used by the pleader, yet the mere addition of the words “ a certain note, commonly called," rendered the indictment bad. In The King v. Davis (1 Leach, 493), the prisoner was indicted upon the Black Act (9 Geo. 1, c. 22); it was held that the term “wilfully” was necessary, being one of the terms used by the Legislature, and “unlawfully and maliciously” would not suffice. In that case some of the judges thought that maliciously” included“ wilfully,” but the majority held that as “ wilfully” as well as “ maliciously” was mentioned in the statute as description of the offence both should be stated in the indictment. In the case of The King v. Compton (7 Car. & P. 139), the indictment in one count charged the defendant that he did break to get out, and in another that he did break and get out: the indictment was holden ill, the words of the act being “break out.” The mere interpolation in the first count of the words “ to get,” and in the second count of the words “and get,” destroying the pleading. The indictment here, in the first count charges that Patrick Gogarty "unlawfully was present at, and did then and there attend, a certain meeting, dangerous to the peace and security of Her Majesty's liege subjects and of her government, for the purpose of training and drilling to the practice of military exercise, movements and evolutions, divers to wit (naming the parties), and then and there did train and drill to the practice of military exercise, movements and evolutions, the said again naming the parties), without any lawful authority from Her Majesty, or the Lieutenant, or two justices of the peace of any county or riding, or of any stewartry, by commission or otherwise for so doing, against the peace, &c., and contrary to the form of the