indictment should be as specific as possible for the protection of the prisoners. A mere allegation in the words of the Code, that A cheated B would be too vague to give any information of value to the prisoner or the judge.

According to the practice of the High Court it is also necessary to negative the pretences by special averment (Arch. 407), but out of those limits such precision would probably not be required.

The indictment should state whose the property is, so as to negative the possibility of its being the property of the prisoner. But the omission of such a statement is merely an "uncertainty," which must be objected to before the jury is sworn and not afterwards. (Act XVIII of 1862, s. 41. Reg. v. Willans, 1 Mad. H. C. 31.) In Reg. v. Willans the High Court seemed to lay down, though with considerable reluctance, on the authority of English cases, that if the property was, in fact, not that of the prosecutor, as, for instance, if A by cheating B, induced him to deliver up the property of C, the offence under s. 415 would not be committed. Even supposing this view of the law to be correct, I have no doubt that any legal possession, which entitled the party cheated to retain the article as against the party cheating him, would be held to be sufficient proof of property to support an indictment. (See ante, p. 430.)

An indictment for cheating the prosecutor of his property is proved by evidence that the article was, in fact, delivered by the prosecutor's wife, upon a permission granted by the prosecutor under the influence of the false statement. (Reg. v. Moseley, 31 LJ. M. C. 24. L. & C. 92.) As to the mode of describing the property obtained by cheating, see Act XVIII of 1862, ss. 15, 25.

(No. 49.) Indictment for Mischief to Cattle.

day of

committed mischief

That he, on or about the by maiming a horse (or a dog of the value of fifty rupees), the property of A B, and that he has thereby committed an offence punishable under s. 429 of the Indian Penal Code, and within, &c.

Note.-Under this Section value may be the essence of the offence, and would have to be alleged and proved.

(No. 50.) Indictment for Lurking House-Trespass by Night. That he, on or about the

day of

at

and

committed lurking house-trespass by night in the house of that he has thereby committed an offence punishable under s. 456 of the Indian Penal Code, and within, &c.

(No. 51.) Indictment for house-breaking by night with intent to

commit Theft.
day of

broke into the

That he, on or about the house of one A B, after sunset and before sunrise, in order to commit theft, (or in order to the committing of an offence punishable with imprisonment, that is to say the offence of adultery,) and that he has thereby committed an offence punishable under s. 457 of the Indian Penal Code, and within, &c.

Note. If theft has been committed, add a count under s. 380. Form 41 ante, p. 431.

F F

(No. 52.) Indictment for breaking open a closed Recepticle

about the

entrusted to him.

day of

That he being entrusted with a closed recepticle, that is to say a box containing property, (or which he believed to contain property,) did, on or dishonestly break open the same, not having authority so to do, and that he has thereby committed an offence punishable under s. 462 of the Indian Penal Code, and within, &c.

(No. 53.) Indictment for forging a Bill of Exchange and
fraudulently using the same.

day of

First; That he, on or about the committed forgery, by making a certain false Bill of Exchange, purporting to be a valuable security, with intent to defraud, and that he has thereby committed an offence punishable under s. 467 of the Indian Penal Code, and within, &c.

day of

fraudulently

Secondly; That he on or about the used the said forged Bill of Exchange as genuine knowing it to be forged, and that he has thereby committed an offence punishable under ss. 471 and 467 of the Indian Penal Code, and within, &c.

Note.-See as to the description of document forged, Act XVIII of 1862, ss. 15, 25.

Where the forgery consists in altering a true instrument, the offence may still be described as a forgery of the whole. (Ante, p. 350.)

It is not necessary to mention the person upon whom the forgery has been passed off, or attempted to be so. (Arch. 466.)

It is sufficient to allege the intention to defraud generally, without stating any particular person who would be defrauded by the forgery (Act XVIII of 1862, s. 16.)

Where a conviction is sought under s. 467 the document must be described so as to bring it within the terms of the Section, and such description is material and must be made out. So, if the prisoner is indicted for uttering a forged document, he cannot receive the enhanced punishment for uttering a document described in s. 467, unless the indictment has so charged his offence. (6 Bomb. C. C. 43.)

(No. 54.) Indictment for Bigamy.

day of

had a

That he, the said John Brown, on the wife living named Sarah Brown, (who had been continually absent from the said John Brown for the space of 7 years and had not been heard of by him as being alive within that time,) and that he, on the said day, married one Elizabeth Smith, the said last named marriage being void by reason of its taking place during the life of the said Sarah Brown, (and that he, the said John Brown, did not before the said last named marriage inform the said Elizabeth Smith of the real state of facts connected with his said first marriage, so far as the same were within his own knowledge,) and that he has thereby committed an offence punishable under s. 494 of the Indian Penal Code, and within, &c.

(No. 55.) Indictment for Adultery.

day of

committed adultery who then was and

That he, on or about by having sexual intercourse with one whom he knew (or had reason to believe) to be the wife of another man, that is to say of one without the consent or connivance of the said (name of husband), such sexual intercourse not amounting to the offence of rape, and that he has thereby committed an offence punishable under s. 497 of the Indian Penal Code, and within, &c.

the said of one

him the said

day of

(No. 56.) Indictment for enticing away a Married Woman. That he, on or about the enticed away from her husband (or from one who then had the care of her on behalf of her husband) a certain woman named who then was and whom he then knew (or had reason to believe) to be the wife with intent that she might have illicit intercourse with (or with a certain other person named ) and that he has thereby committed an offence punishable under s. 498 of the Indian Penal Code, and within, &c. Note. In cases of bigamy the offence is completed at the time of the second marriage, and must be tried by the Court within whose jurisdiction such second marriage took place. In cases of adultery any Court may try the offence, within whose limits any act of criminal connection took place. In cases of enticing or taking away a married woman there is an offence triable in every district into which the woman was enticed. But where she is taken out of one district and

lives with the man in another, if the trial is to be in the latter district it would be well to add a count under s. 498 for detaining her in that district. Of course, a man cannot be tried twice in the same or in different districts for different acts of the same continuous adultery, enticing, or detaining. (See ante, p. 375.)

(No. 57.) Indictment for Defamation.

day of

That he, on or about the defamed A B, by writing and publishing concerning him the following words (here insert the defamatory matter) and that he has thereby committed an offence punishable under s. 500 of the Indian Penal Code, and within, &c. Note. See as to negativing the exceptions in s. 499, Act XVIII of 1862, s. 26, and Cr. P. C. s. 439 ante, p. 405.

(No. 58.) Indictment for Criminal Intimidation.

day of

That he, on or about the criminally intimidated A B, (by threatening to cause grievous hurt to one B C, with intent to cause the said A B to do an act which he was not legally bound to do, that is, to give money to the accused) and that he has thereby committed an offence punishable under s. 506 of the Indian Penal Code, and within, &c.

Note. The words in italics are probably not necessary, at least in the Mofussil, but if any part of the description of the offence is set out the whole is necessary.

(No. 59.) Indictment for attempting to commit House-breaking. That he, on or about the

day of

commit house-breaking in the house of one

did attempt to

and in such

attempt did an act towards the commission of the offence, and that he has thereby committed an offence punishable under s. 511 and s. 453 of the Indian Penal Code, and within, &c.

Note. No separate count for an attempt is necessary where the completed offence is charged. (Act XVIII of 1862, s. 17, and Cr. P. C. s. 457 ante, p. 400.) The indictment must specify not only s. 511 but the Section of the Code under which the offence, if completed, would have been punishable, as a reference to both Sections is necessary to determine the penalty. (2 W. R. C. L. 2.)

Charges of attempts must, of course, contain a correct legal description of the offence attempted, but need not state it in as much detail as a charge of actually committing the offence. For instance, a count for an attempted theft need not specify the goods which the thief attempted to steal, since that cannot always be known. (Reg. v. Johnson, 34 L. J. M. C. 24. L. & C. 489.) But an indictment for an attempt to cheat was held insufficient which simply stated that the prisoner "did unlawfully attempt and endeavour fraudulently, falsely and unlawfully to obtain from the A. Insurance Co. £22 10s., with intent thereby then and there to cheat and defraud the said Company." (Reg. v. March, 1 Den. C. C. 505.) Here, not only the indictment gave the prisoner no information as to the nature of the offence which was charged against him, but it stated nothing which, if admitted, amounted to an offence.

day of

(No. 60.) Indictment for Theft after a previous conviction. That he on or about the committed theft by dishonestly taking one gold bangle then in the possession of one A Ď out of his possession without his consent, and that he has thereby committed an offence punishable under s. 379 of the Indian Penal Code, and within, &c. And the said (defendant) stands further charged that he, before the committing of the said offence, that is to say, on the day of had been convicted in Calendar No.

on the file of

of an offence punishable under Chapter XVII of the Penal Code with imprisonment for a term of three years, that is to say, the offence of house-breaking by night, (describe the offence in the words used in the Section under which the penalty is imposed) which conviction is still in full force and effect, and that he is thereby liable to enhanced punishment under s. 75 of the Indian Penal Code, and within, &c.

Note. The date of the previous conviction ought to be mentioned in the charge, since, in order to render s. 75 of the Penal Code applicable, it is necessary that the previous offence should have been committed since the 1st of January, 1862, when that Code became law. (1 R. J. & P. 562, and see ante, p. 41.) But to carry out the above principle strictly, it would be rather necessary to state the time at which the offence was committed, than the date of the conviction.

"If the accused person has been previously convicted of any offence, and if it is intended to prove such previous conviction for the purpose of affecting the punishment which is to be awarded, the fact of the previous conviction must be stated in the charge. If it is omitted it may be added at any time before sentence is passed, but not afterwards." (Cr. P. C. s. 439.) The English practice is the same, but to

avoid undue prejudice to the prisoner, he is first tried on the substantive charge then under enquiry, and, if convicted, he is then charged with and tried on the fact of the previous conviction. (Rulings of Madras High Court of 1865 on s. 75, 24 & 25 Vict. c. 96. s. 116.)

If the prisoner admits the fact of the previous conviction further trial is of course unnecessary. If he pleads not guilty to it also, then the previous conviction must be proved in the manner pointed out, ante, p. 419, and evidence must be given to identify the prisoner with the person named in the previous conviction. This is generally done by some one who was present at the first trial, or who has had the prisoner under his charge upon the former sentence. The finding that he was previously convicted must then be entered on the record, and the aggravated sentence can be passed.