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tried in any county in England. Offences against the black act, 9 Geo. I. c. 22, may be inquired of and tried in any county of England, at the option of the prosecutor (1) So felonies in destroying turnpikes or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II c. 20 and 13 Geo. III. c. 8+, be inquired of and tried in any adjacent county By statute 26 Geo. II. c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship con. trary to 12 Anne, st. 2, c. 18,(m) may be prosecuted either in the county where the fact is committed or in any county next adjoining; and if committed in Wales, then in the next adjoining English county: by which is understood to be meant buch English county as, by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales.(n) Felonies committed out of the realm, in burning or destroying the kiny's ships, *magazines, or stores, may, by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or in the place where
[*305 the offence is committed. By statute 13 Geo. III. c. 63, misdemeanours committed in India may be tried upon informations or indictments in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet, if larceny be committed in one county and the goods carried into another, the offender may be indicted in either, for the offence is complete in both;(0) or he may be indicted in England for larceny in Scotland and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another.(p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted or stands mute, he shall not be admitted to his clergy, provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691.(9)
So held by all the judger, H. 11 Geo. IU, in the case of judgment that Chester, and not Salop, was the next adof Richard Mortis, on a case referred from the Old Bailey. joining English county; but all the judgos (in Mich. 15 Geo (*)See page 245.
111.) held the prosecution to be regular. (*) At Shrewsbury Summer Assizes, 1774, Parry and Roberts were convicted of plundering a vessel which was Wrecked on the coast of Anglesey. It was moved in arrest (9) Stat. 25 Hen. VIII. c. 3. 3 W. and M. c. 9.
(o llal. P. C. 307.
6 The law respecting venue in criminal prosecutions has been recently revised and simplified, and is now as follows:
As to murder. By 9 Geo. IV. c. 31, s. 7, if any British subject shall be charged in England with any murder or manslaughter, or with being accessory before the fact to any murder or manslaughter, committed on land out of the United Kingdom, whether within the king's dominions or without, any justice of the county or place where the person so charged shall be may take cognizance of the charge, and proceed therein as if it had been committed within the limits of his ordinary jurisdiction; and if any person so charged shall be committed for trial or admitted to bail, a commission shall be directed to such persons, and into such county or place, as shall be appointed by the lord chancellor, for the speedy trial of any such offender; and such persons shall have power to hear and determine all such offences, within the county or place limited in their commission, by a jury of such county or place, in the same manner as if the offences had been actually committed in such county or place; and, by s. 8, where any person, being feloniously struck, poisoned, or hurt, upon the sea, or at any place out of England, shall die of such stroke, &c. in England, or vice versâ, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or manslaughter, or being accessory before the fact to murder, or after the fact to murder or manslaughter, may be tried and punished in the county or place in England in which such death, stroke, &c. shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place.
As to offences committed on the borders of counties. By 7 Geo. IV. c. 64, s. 12, where any felony or misdemeanour shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanour may be tried and punished
When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill “ignoramus," or, we know nothing of it; intimating that, though the facts might possibly be true, that truth did not appear to them: but now they assert in English more absolutely “not a true bill," or (which is the better way) “not found," and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the
truth of the accusation, they then *endorse upon it " a true bill,” antiently
“billa vera.” The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours : that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and after.
in any of the said counties in the same manner as if it had been actually and wholly committed therein.
As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, s. 13, where any felony or misdemeanour shall be committed on any person, or on or in respect of any property in or upon any coach, wagon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any royage upon any inland navigation, such felony or misdemeanour may be tried and punished in any county through any part whereof such coach, &c. or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanour shall have been committed, in the same manner as if it had been actually committed in such county; and where any part of any highway or navigation shall constitute the boundary of any two counties, such felony or misdemeanour may be tried and punished in either of the said counties through, or adjoining to, or by the boundary of any part whereof such coach, &c. or ve sel shall have passed in the course of the journey or voyage during which such felony or misdemeanour shall have been committed, in the same manner as if it had been actually committed in such county.
As to larceny generally. By the Larceny Act, (7 & 8 Geo. IV.c. 29, s. 76,) if any person, having feloniously taken any property in any one part of the United Kingdom, shall afterwards have it in his possession in any other part, he may be indicted for larceny in that part where he shall so have such property in his possession, as if he had actually stolen it there; and if any person having knowingly received, in any one part of the United Kingdom, any stolen property which shall have been stolen in any other part, he may be indicted for such offence in that part where he shall so receive such property, as if it had been originally stolen in that part.
As to accessories. By 7 Geo. IV. c. 64, s. 9, accessories before the fact to any felony may be tried in any court that has jurisdiction to try the principal offender, although the offence of such accessories may be committed on the high seas, or on land, within or without the king's dominions; and if the principal offence is committed in one county and the other offence in another, such accessories may be tried in either; and, by s. 10, a similar provision is made with respect to accessories after the fact to felony.
As to treasons. By 35 Hen. VIII. c. 2, (which is not repealed by 1 & 2P. and M. c. 10, see 1 East, P. C. 103,) all treasons or misprisions of treason committed out of the realm may be tried in the court of King's Bench by a jury of the county in which the court sits, or by a special commission in any county in England. See Chit. C. L. 188.
An indictment for bigamy may, by 9 Geo. IV. c. 31, s. 22, be tried in the county where the offender is apprehended or is in custody, the same as if the offence had been actually committed there.
In an indictment for a libel the venue must be laid in the county where the publication took place.
Indictments for offences against the customs and excise may be tried in any county of England. See 6 Geo. IV. c. 108, ss. 74 & 78, and 7 & 8 Geo. IV. c. 53, s. 43.
Offences committed in a county of a city or town may be tried in the county at large. See 38 Geo. III. c. 52; 51 Geo. III. c. 100; 60 Geo. III. C. 4; 1 Geo. IV. c. 4. If the indictment states the felony to have been committed in the county at large, and it was committed in the county of a city or town, this is bad. Rex vs. Mellor, R. & R. C. C. 144. But if the offence be properly laid in the county of a town, and the indictment is preferred in the county at large, it need not be averred that that is the next adjoining county to the county of the town. Rex vs. Goff, id. 179. The 26 Hen. VIII. c. 6, s. 6, which makes felonies in Wales triable in the next English county, extends to felonies creaied since that statute. Rex vs. Wyndham, id. 197.-Cutty.
wards by the whole petit jury of twelve more finding him guilty upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree;(r) and the indictment, when so found, is publicly deliverea into court.
Indictments must have a precise and sufficient certainty.' By statute 1 Her..
(*) 2 Hal. P. C. 161.
? The following general rules as to the form of the indictment may be found useful. The indictment must state the facts of the crime with as much certainty as the nature of the case will admit. Cowp. 682. 5 T. R. 611-623. '. Therefore an indictment charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insufficient. 3 Ï. R. 581. The cases of indictment for being a common scold or barretor, or for keeping a disorderly house, or for conspiracy, may be considered as exceptions to the general rule. 2 T. R. 586. 1 T. R. 754. 2 B. & A. 205. And an indictment for endeavouring to incite a soldier to commit an act of mutiny, or a servant to rob his master, without stating the particular means adopted, may also be considered as an exception. 1 B. & P. 180.
The indictment ought to be certain to every intent and without any intendment to the contrary. Cro. Eliz. 490. Cro. Jac. 20. But this strictness does not so far prevail as to render an indictment invalid in consequence of the omission of a letter which does not change the word into another of different signification, as undertood for understood, and recard for received, (1 Leach, 134, 145;) and if the sense be clear, nice objections ought not to be regarded, (5 East, 259;) and in stating mere matter of inducement, not so much certainty is required as in stating the offence itself. 1 Vent. 170. Com. Dig. Indictment, G. The charge must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include any thing more than is expressed. 2 Burr. 1127. 2 M. & S. 381. And every crime must appear on the face of the record with a scrupulous certainty, (Cald. 187,) so that it may be understood by every one, alleging all the requisites that constitute the offence; and that every averment must be so stated that the party accused may know the general nature of the crime of which he is accused, and who the accusers are, whom he will be called upon to answer, (1 T. R. 69;) and as a branch of this rule it is to be observed that in describing some crimes technical phrases and expressions are required to be used to express the precise idea which the law entertains of the offence. See the instances in the text. The offence must be positively charged, and not stated by way of recital: so that the words “that whereas” prefixed will render it invalid. 2 Stra. 900, n. 1. 2 Lord Raym. 1363. Stating an offence in the disjunctive is bad. 2 Stra. 901, 200; and see further, 1 Chit. C. L. 2d ed. 236. Repugnancy in a material matter may be fatal to the indictment. 5 East, 254. But though the indictment must in all respects be certain, yet the introduction of averments altogether superfluous and immaterial will seldom prejudice. For if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage. 1 T. R. 322. 1 Leach, 474. 3 Stark. 26. And see further, as to repugnancy and surplusage, 1 Chit. C. L. 2d ed. 332, 338, &c.
Presumptions of law need not be stated, (4 M. & S. 105. 2 Wils. 147 ;) neither neerl facts of which the court will ex officio take notice. It is not necessary to state a conclusion of law resulting from the facts of a case: it suffices to state the facts and leave the court to draw the inference. 2 Leach, 941. Neither is it necessary to state mere matter of evidence which the prosecutor proposes to adduce, unless it alters the offence; for if so, it would make the indictment as long as the evidence. 1 Stra. 139, 140. Forst. 194. 2 B. & A. 205. In general, all matters of defence must come from the defendant, and need not be anticipated or stated by the prosecutor. 5 T. R. 84. 2 Leach, 580. 2 East, 19. And it is never necessary to negative all the exceptions which, by some other statute than that which creates the offence, might render it legal ; for these must be shown by defendant for his own justification. 2 Burr. 1036. 1 Bla. Rep. 230. Facts which lie more particularly within the defendant's than the prosecutor's knowledge need not be shown with more than a certainty to a common intent. 5 T. R. 607. Hawk. b. 2, c. 25, s. 112. If notice be necessary to raise the duty which the defendant is alleged to have broken, it should be averred; but where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary either to state or prove it. 5 T. R. 621. If a request or demand is necessary to complete the offence, it must be stated in the indictment. 8 East, 52, 53, 1T, R. 316. Cald. 554 Where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved. 2 Stark. 245. R. & R. C. C. 365. 1 Hale, 561. 2 East, P. C. 514, 515. 2 R. & R. C. C. 317. Indictments must be in English. 4 Geo. II. c. 26. 6 Geo. II. c. 6. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue and then translated, showing its applications, (6 T. R. 102.7 Moore, 1;) but it has been said to
5, all indictments must set forth the Christiai name, surname, and addi. tion of the state and degree, mystery, town or place, and the county of the offender; and all this to identify his person. The time and place are also to be ascertained by naming the day and township in which the fact was committed; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment and the place to be within the jurisdiction of the court, unless where the place is laid not merely as a venue, but as part of the description of the fact.(8)" But sometimes the time may be very material, where there is any situation in point of time assigned for the prosecution of offenders, as by the statute 7 Will. III. c. 3, which enacts that no prosecution shall be had for any of the treasons or misprisions therein mentioned, (except an assassination designed or attempted on the person of the
( 2 Hawk. P. C. 135.
be both needless and dangerous to translate it. 1 Saund. 242, n. 1. By the same acts, statutes 4 Geo. II. c. 26, and 6 Geo. II. c. 14, all indictments must be in words at length; and therefore no abbreviations can be admitted. 2 Hale, 170, n. g. Nor can any figures be allowed in indictments, but all numbers must be expressed in words at length; but to this rule there is an exception in case of forgery and threatening letters, when a fucsimile of the instrument forged must be given in the indictment. 2 Hale, 170, 146.
As to the insertion of several counts in an indictment, see 1 Chit. C. L. 248 to 250; and as to when part of a count may be found, id. 250 to 252. As to the joinder of several offences, id. 253 to 256. As to variances, id. 2d ed. 293, 294. As to the amendment of indictments, id. 297 to 298; and when an indictment may be quashed, id. 299 to 304. As to the power of a court of equity to stay indictment, id. 2d ed. 304. As to when an action, as well as an indictment, may be brought, see ante, 6.—Chitty.
8 But, by stat. 7 Geo. IV. c. 64, s. 10, it was enacted that no indictment should be abated by reason of any dilatory plea of misnomer, or of want of addition, or of the wrong addition, of the party offering such plea, but the court, if satisfied by affidavit or otherwise of the truth of such plea, might cause the indictment to be amended. And the 14 & 15 Vict. c. 100, s. 24 provides that no indictment shall be held insufficient (inter alia) by reason that any person mentioned in the indictment is designated by a name or office or other descriptive appellation instead of his proper name, nor for want of or imperfection in the addition of any defendant.-STEWART.
9 By 7 Geo. IV. c. 64, s. 20, " no judgment, upon any indictment or information, for any felony or misdemeanour, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words 'as appears by the record,' or 'with force and arms,' or against the peace;' nor for the insertion of the words .against the form of the statute,' instead of against the form of the statutes,' or vice versie ; nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office, or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of tlre offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence." The objections enumerated in this clause are no longer available, either in arrest of judgment or by writ of error, because it enacts that judgment shall not be stayed, which applies to motions in arrest of judgment, or reversed, which applies to writs of error. But it seems that any of these objections will still be available on demurrer, where the prisoner prays judgment in his favour, and if his demurrer is allowed, judg. ment is neither stayed nor reversed, but given in his favour. See further, on this subject, Car. C. L. 46, et seq., and the cases there cited.
If the name of a prisoner is unknown and he refuse to disclose it, an indictment against him as a person whose name is to the jurors unknown, but who is personally brought before the jurors by the keeper of the prison, will be sufficient. Rex vs. - R. & R. C. C. 489. But an indictment against him as a person to the jurors unknown, without something to ascertain whom the grand jury meant to designate, is insufficient. Id. ibid. Chitty.
But now also, by stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be held insufficient for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the pending of the indictment, or on an imposeible day, or on a day that never happened.STEWART.
king,) unless the bill of indictment be found within three years after the oftence committed;(t) and in case of murder, the time of the death must be laid within a year and a day after the mortal stroke was given. The offence itself' must also be set forth with clearness and certainty; and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the *offence, that no other words, however synonymous they may seem, are capable of doing it. Thus, in
[*307 reason the facts must be laid to be done "treasonably and against his allegiance," antiently "proditorie et contra ligeantiæ suæ debitum," elso the indictment is void. In indictments for murder it is necessary to say that the party indicted “murdered,” not “killed," or "slew," the other; which, till the late statuto, was expressed in Latin by the word “murdravit."(u) In all indictments for felonies the adverb "feloniously,” “felonice," must be used; and for burglaries, also, "burglariter,” or, in English, “burglariously:” and all these to ascertain the intent. In rapes the word “rapuit” or “ravished" is necessary, and must not be expressed by any periphrasis, in order to render the crimo certain. So in larcenies, also, the words “ felonice cepit et asportavit, feloniously took and carried away,” are necessary to every indictment, for these only can express the very offence. Also, in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature; but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also, where a limb or the like is absolutely cut off, there such description is impossible.(v) Lastly, in indictments the value of the thing which is the subject or instrument of the offence must sometimes be expressed. In indictments for larcenies this is necessary, that it may appear whether it be grand or petit larceny, and whether entitled or not to the benefit of clergy ;' in homicide of all sorts it is necessary, as the weapon with which it is committed is forfeited to the king as a deodand."
The remaining methods of prosecution are, without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation One of these, by the common law, was when a thief was taken with the mainour; that is, with the thing stolen upon him in munu. For he might, when so de
(9) Fost. 219.
(*) See book iii.
() 5 Rep. 122.
There are some recent enactments, respecting indietments for larceny, which it seems important to notice here. By 7 Geo. IV. c. 67, s. 17, to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint owners,' the property of partners may be laid in any one partner by name, and another, or others. By s. 15, property belonging to counties, &c. may be laid in the inhabitants without naming them. By s. 16, property ordered for the use of the poor of parishes, &c. may be laid in the overseers without naming them; and materials, &c. for repairing highways may be laid to be the property of the surveyor without naming him. By s. 17, property of turnpike-trustees may be laid in the trustees without naming them. And by s. 18, property under commissioners of sewers may be laid in the commissioners without naming them. By 7 & 8 Geo. IV. c. 29, s. 21, in indictments for stealing records, &c. it is unnecessary to allege either that the article is the property of any person, or that it is of any value. By s. 22, a similar provision is made respecting wills. By s. 4, where the materials therein enumerated are fixed in any square, street, or other like place, it is unnecessary to allege them to be the property of any person. And, by s. 46, in indictments against tenants and lodgers for stealing property from houses or apartments let to them, the property may be laid either in the owner or person letting to hire. For the cases bearing upon this subject, see Car. C. L. 25, et seq.; Col. Crim. Stat. 329; and see a full and able summary of the law of larceny, id. 325, 343.-Ciutty.
" It is to be observed that, by stat. 11 & 12 Vict. c. 46, any court of oyer and terminer and general gaol-delivery (extended to courts of quarter sessions by 12 & 13 Vict. c. 45) may cause the indictment or information for any offence whatever, in case of any variance between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record, to be forthwith amended, and thereupon the trial shall proceed as if no such variance had appeared. Still further powers of amendment in matters of variance are conferred by stat. 14 & 15 Vict. c. 100, s. 1.--STEWART.