count for that purpose; otherwise the charge would not appear so direct and plain as the criminal law seems to require. At all events, the use of this word is recommended in these cases. Edit.

Amendment.

Criminal prosecutions are not within the benefit of the statutes of amendment; so that no amendment can be made to an indictment, but such only as is allowed by the common law. 2 Lil. 45, and 2 Hawk. c. 25, s. 97.

The body of a bill of indictment removed into B. R. may not be amended, except from London, where the tenor only of the record is removed. Ibid.

But the Grand Jury who found the bill, before they are discharged, may, by consent of the Court, amend it in matter of form as to the name or addition of the party, &c. Ibid. s. 98. Should an indictment be quashed on account of informality, a fresh bill may be preferred de novo.

All crimes of a public nature may be indicted; but no injury of a private nature is so punishable, unless it tend to a breach of the peace.

And where an offence is made punishable by statute, the true rule seems to be, that if the offence was punishable before the statute prescribed a particular penal or corporal punishment, then such particular remedy is cumulative, and does not take away the former remedy. 2 Burr. 799.

Joinder of Persons and Offences in one Indictment.

In an indictment upon 39 Geo. III. c. 85, for embezzlement, it is no misjoinder to add a count for a common larceny. Rex v. Creighton, 3 M. & S. 539. Indeed it appears the safest way to do so, for so many niceties are to be overcome in order to convict under this statute, that prisoners very often escape punishment altogether. Edit.

In cases of felony, where an indictment contains several counts charging distinct felonies, the Court may put the prosecutor to make his election on which charge he will proceed. 3 T. R. 106. Leach, 568, 531. Rex. v. Jones, 2 Camp. 132. Rex v. Kingston, 8 East, 41.

But in misdemeanours, the prosecutor may give in evidence as many distinct offences as the indictment contains counts: e. g. libel and riot, and it is no objection. Rex v. Benfield and Saunders. 2 Burr. 980. 1 Leach, 511.

But it would be misjoiner to add a count for a misdemeanour to a bill for larceny. 3 T. R. 108.

It appears that several persons may be included in one indictment for offences of one and the same tendency, such as erecting inns to the annoyance of the public ad commune nocumentum; but there it must be laid that they separately or severally erected separaliter erexerunt; but for want of the word separately or severally, the indictment would be quashed. And so with respect to persons keeping separate disorderly houses; for the word separation makes them virtually several indictments, though in law they are separate offences of the same stamp, but they may be all included in one indictment. 2 H. H. 173.

So also where the offences are of several degrees, but dependent upon one another: as the principal in the first degree and the principal in the second degree, to wit, aiding and abeting in the principal, and the accessary before or after. Ibid.

Therefore, by an additional count, the receiver of stolen goods, amounting to grand larceny, may be joined with the principal, where such principal felon is known; but where he is not known, the accessary ought to be indicted separately for a misdemeanour, under 22 Geo. III. c. 58.

Several defendants may be included in the same indictment for an assault upon an individual. In riot and combinations, of course there must be more than one.

But where two prosecutors were joined in the same indictment for an assault, the Court held that they were distinct offences. But where the offence is joint, such as one document containing a joint libel against several, there may be several joint prosecutors. Vide the case, Rex v. Benfield & Saunders, 3 Burr. 985.

In petit larceny there are no accessaries, but receivers may be prosecuted for misdemeanour, without any regard to the principals being convicted or even tried. By a late Act, 3 Geo. IV. c. 24, s. 3, the defendant, instead of being indicted for a misdemeanour where the principal felon is unknown, may be tried for a felony; but as some difficulties arise in the construction of this statute, prosecutions under it are not recommended. Vide ante title, "Receivers of Stolen Goods."

Motion to quash the Indictment.

The Court has a discretionary power to quash a defective indictment without putting the defendant to the expense and inconvenience of pleading. Com. Dig. Ind. H. Burr. 1127. 4 T. R. 135. 1 Sid. 54, 247. Salk. 372. 1 T. R. 316.

Should the defendant move to quash, he should be prepared to prove notice to the prosecutor of his intention so to do.

The prosecutor will not be permitted to quash the indictment on motion unless he be prepared with another that is sufficient; and the defect should manifestly appear on the face of the indictment. 2 East, R. 226, Rex v. Wynne.

Where the defendant has been put to expense, and a second indictment is preferred, the Court will not quash the first unless the costs incurred by the defendant on such first indictment be paid to him. MSS. Mich. Term, 53 G. III. 3 Bur. 1469. 3 Barn & Ald. 373. 1 W. Bl. 460.

In general the application should be made before the defendant has pleaded. Leach, 14.

Indictments for perjury at common law, preferred at the Sessions and certified by the clerk of the peace to the Assizes, are invariably quashed, and a fresh bill preferred.

And even if preferred at the Sessions, under the statute 5 Elix. c. 9, in many instances it will not lie. Thus, where a witness for the King swears falsely, he cannot be indicted under this statute. Baston v. Gouch, 3 Salk. 269. And for other objections to proceeding under this statute, vide Rus. on C. Title "Perjury."

If the application be to quash an indictment removed by certiorari, there is no objection to the motion being made on the last day of term. 1 Bur. 651.

Notice to the Prosecutor of Motion to quash a defective Indictment. The King, on the Prosecution of A. B. against C. D. for Perjury. I hereby give you notice, that the Court of Quarter Session now holden for the county of will be moved to-morrow that the indictment preferred by you at the last Sessions for the same county against the above-named defendant C. D. for perjury, may be quashed, for want of jurisdiction in such matters.-Dated, &c.

To A. B. the above-named

prosecutor.

E. F. defendant's

attorney.

Prove the service of the notice, and shew that the indictment is a common law indictment, inasmuch as it does not conclude contrá formam statuti: or, if having such conclusion, that it does not come within the purview of the act (or shew other defect, as the case may be).

Description of the Stolen Articles.

The description of the articles stolen ought to be clear and explicit indictments are frequently quashed for want of attention to this particular, and a designation of property that is not critically correct often proves fatal to an indictment; therefore, where a pocket book is described to be a leathern pocket book, the description would be erroneous if containing many paper leaves, and but a small part of the book composed of leather: it should be described in general terms "a pocket book.”

But the averment must not be too general; as, that the defendant stole the goods and chattels of A. B. without specifying them. 2 Hawk, c. 25, s. 74.

Mr. Justice Abbott ordered an acquittal of a prisoner at the Devonshire Assizes, 1817, who was indicted for stealing a quantity of tallow, which in fact was that description of fat put up by butchers in a particular manner, and by them called tallow as it is generally sold to chandlers; but as it had not been rendered by fire into tallow, the provincial appellation was fatal to the indictment.

It is not necessary to describe a watch to be a silver watch, or a gold watch; it would appear that such a description is erroneous, though perhaps not held to be fatal, for the material parts of the watch, the works, are of brass and steel. The general term of watch is sufficient.

An indictment, on 2 Geo. II. c. 25, for stealing promissory notices or bills of exchange, or other documents therein set forth, should allege that the moneys due thereon remain unsatisfied to the proprietor thereof, and conclude against the form of the statute, and against the peace, &c.

Indictments for stealing animals, generally considered to be feræ naturæ, must aver, either that they were dead, or reclaimed at the time of the felony; therefore, an indictment for stealing a pheasant of the goods and chattels of A. B. was holden to be defective, for without an allegation to the contrary they must be presumed to be in their original state. Staunf. 52, b. 3. Inst. 109. Rougle's case, East, P. C. 607.

If fish be stolen from a trunk, net, stew, or close pond, the indictment should state what sort of pond it was, in order to shew that the taking amounted to felony. Starkie, title "Indictment."

CHAPTER XVII,

INFORMATIONS.

Qui tam informations are sometimes, though rarely, filed or preferred at the General Quarter Sessions.

Informations qui tam will not lie on any statute which prohibits a thing, as being an offence against the public good in general, under a certain penalty, unless the whole or part of such penalty be expressly given to him who will sue for it, because otherwise it goes to the King, and nothing can be demanded by the party. 2 Haw. P. C. c. 26.

By the 31 Elix. c. 5, the limited time for prosecuting the same is within one year after the offence is committed.

If two informations be exhibited on the same day for the same offence, they mutually abate one another. 2 Haw.P.C.c.26.

The stat. 21 J. c. 4, renders informations, &c. of this nature void, for offences for which any common informer may ground the same before Justices of Assize, Justices of Nisi Prius or gaol delivery, Justices of Oyer and Terminer, or Justices of the Peace, in their General or Quarter Sessions, unless commenced and prosecuted before the Justices of Assize, &c. and Justices of the Peace of the county, &c. having power to inquire of, hear, and determine the same, in the county where the offence was committed, and also void if commenced or prosecuted in any of the Courts at Westminster.

COUNTY OF

}c

Form of Information.

Be it remembered, that A. B. late of the parish of C. in the county of yeoman, who, as well for our Sovereign Lord the now King as for himself, doth prosecute in