SECT. 6.

Indictment, how found.

In ordinary cases, upon furnishing the clerk of the arraigns or clerk of the indictments at the assizes, or the clerk of the peace at sessions, with the particulars of the offence, he will draw the indictment; but in cases where more than ordinary care may be requisite in framing the indictment, it is better to get it drawn by counsel, and then let it be engrossed on plain parchment without stamp.

As soon as the indictment is engrossed, a clerk of the clerk of arraigns, or of the clerk of the peace,will administer the oath to the witnesses intended to be examined before the grand jury, and indorse their names on the indictment; he will then lay it before the grand jury.

After the indictment has been taken to the grand jury room, it will come under the consideration of the grand jury in its turn. The witnesses are then called in, in the order in which their names are indorsed on the indictment, and examined by the grand jury; and if the offence should appear to a majority of the jury (consisting of twelve at least) to have been sufficiently proved, the clerk of the grand jury will indorse on the indictment, "A true bill;" but if the majority should be of opinion that the offence has not been sufficiently proved, the words " no true bill' are in that case indorsed on the indictment. Afterwards the foreman, accompanied by the other grand jurors, carries the indictments so indorsed into court, and delivers them to the clerk of the arraigns or clerk of the peace, who thereupon states to the court the substance of each, and the indorsement upon it.

In strict legal parlance, an indictment is not so called, until it has been found " a true bill" by the grand jury; before that, it is named a bill merely.

The grand jury may require the same evidence, written and parol, as may be necessary to support the indictment at the trial. They are not, however, usually very strict as to documentary evidence; they often admit copies, where the originals alone are evidence; and sometimes even evidence by parol of a matter which should be proved by written evidence. But as they may insist on the same strictness of proof as must be observed at the trial, it may be prudent in all cases to be provided, at the time the bill is preferred, with the same evidence with which you intend afterwards to support the indictment. It must be observed, however, that it is no objection that witnesses are called and examined at the trial, whose names are not on the back of the indictment.

If witnesses will not come forward voluntarily to give evidence before the grand jury, you may sue out a subpœna or

subpoena duces tecum, either at the crown office in London or with the clerk of the arraigns in the country, for the assizes, or at the crown office, or with the clerk of the peace, for the sessions, and serve each of them with a copy, or subpoena ticket, as it is termed. Or if the witness be in prison, he may be brought up by habeas corpus ad testificandum, to be sued out in the manner hereinafter mentioned, under the title Evidence.

The grand jurors who find the bill, must be of the King's liege people, returned by sheriffs or bailiffs of franchises, without nomination of any, and of whom none shall be outlawed, or fled to sanctuary for treason or felony, otherwise the indictment shall be void; 11 Hen. 4. c. 9; and if any one be outlawed, or returned at the nomination of the party &c., the indictment is void, though twenty others be upon the inquest. 2 Hale 202. Com. Dig. Indictment A. The bill also must be found by a majority of the jurors, and that majority must consist of twelve at least; for which reason it is that the number of persons on a grand jury cannot exceed twenty three, nor be less than twelve. It is said that a grand jury cannot find billa vera as to part, and ignoramus as to the other part, of an indictment, for they ought to find the whole or nothing. 2 Hawk. c. 25. s. 2. Yelv. 99. 1 Sid. 414. Thus, if upon an indictment for libel they find quoad the words billa vera, sed utrum maliciosè, ignoramus, the finding is void. 1 Leon. 287. But this has reference only to the same count in the indictment; for it is clear that they may find billa vera as to one count, and ignoramus as to another. Cowp. 325. They cannot however find the bill conditionally, as for instance, “si messuagium sit in possessimem domini regis, tunc billa vera.' "Yelv. 15. Upon an indictment for murder against A. & B., they cannot find billa vera as to A., and as to B. manslaughter only; 1 Ro. Rep. 407; for if it were murder in A., it could not be merely manslaughter in B. But they might find billa vera as to A., and ignoramus as to B.; see Cro. Car. 464; or they might find one or both of them guilty of manslaughter. Upon an indictment for murder, however, the jury cannot find billa vera se defendendo; 2 Ro. Rep. 52; for the offence charged is a felony, the offence found is not.

It may be necessary to mention, that if a bill be thrown out, although it cannot again be preferred to the same grand jury, during the same assizes or sessions, it may be preferred and found at the next sessions or assizes, if no time be limited for preferring it, or if the time limited have not elapsed.

SECT. 7.

Indictment, in what cases quashed.

In what cases.] Where an indictment is so defective that no judgment can be given upon it, even should the defendant be convicted, the court, upon application, will in general quash it. Thus, for instance, they have quashed an indictment for perjury found at Sessions, because the Sessions have no jurisdiction of perjury; 2 Str. 1088; and an indictment against six for exercising a trade, because it was a distinct offence in each, and could not therefore be made the subject of a joint prosecution; 4 Bur. 2046. Str. 623. and see Id. 921; and there are several instances where indictments have been quashed, because the facts stated in them did not amount to an offence punishable by law; see Andr. 230. 1 Bur. 516, 543; as, for instance, an indictment for contemptuous words spoken to a Justice of Peace, not stating that they were spoken to him whilst in the execution of his office. Andr. 226.

Where the application is made upon the part of the defendant, the court have almost uniformly refused to quash an indictment, where it appeared to be for some enormous crime, such as treason or felony, Com. Dig. Indictment, H. and see 1 Wils. 325, forgery, perjury, or subornation. 1 Salk. 372. 1 Sid. 54. 1 Vent. 370. They have also refused to quash indictments for cheats, 6 Mod. 42, for selling flour by false weights, 3 Bur. 1841, for extortion, 5 Mod. 13, for not executing a magistrate's warrant, 2 Str. 1211, against overseers for not paying money over to their successors, 2 Str. 1268, and the like. The court also will not quash indictments for not repairing highways or bridges, 1 Salk. 372. 1 Sid. 40, or for other public nuisances, Salk. 372. 1 Vent. 370. Andr. 220, unless there be a certificate that the nuisance is removed; Cro. Car. 584. 2 Salk. 460; nor will they quash an indictment for a forcible entry, 6 Mod. 96, unless perhaps where the possession has been afterwards given up. Also, where the alleged defect was that the indictment did not conclude contra formam statuti, the court refused to quash it. 1 Str. 602.

But if the application be made on the part of the prosecution, the court will quash the indictment, in all cases where it appears to be so defective that the defendant cannot be convicted on it, and where the prosecution appears to be bond fide, and not instituted from malicious motives or for the purposes of oppression. If the prosecution be instituted by the Attorney General, an application to quash the indictment is never made upon the part of the prosecutor; because he may himself enter a nolle prosequi, which will have the same effect. 1 Doug. 239, 240.

How.] The application to quash an indictment is made to the court where the bill is found; except in cases of indictments at sessions or in other inferior courts, in which cases the application is made to the Court of King's Bench, the record being previously removed there by certiorari.

The application, if made upon the part of the defendant, must be made before plea pleaded; Fost. 231. Holt. 684, 4 St. Tr. 677; and where the indictment had already, upon the application of the defendant, been removed into the Court of King's Bench by certiorari, the Court refused to entertain a motion by the defendant to quash the indictment, after a forfeiture of his recognizance by not having carried the record down for trial. 1 Salk. 380. But if the application be made upon the part of the prosecution, it should seem that it may be made at any time before the defendant has been actually tried upon the indictment. See 3 Bur. 1468. Where the application is made to the Court of King's Bench, there is no objection to its being moved on the last day of the term. 1 Bur. 651.

Before an application of this kind is made on the part of the prosecution, a new bill for the same offence must have been preferred against the defendant, and found. 2 East, 226. And when the court, upon such an application, order the former indictment to be quashed, it is usually upon terms, namely, that the prosecutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment, 3 Bur. 1469, that the second indictment shall stand in the same plight and condition to all intents and purposes that the first would have done if it were not quashed, 3 Barn. & Ald. 373. 3. Bur. 1468, 1 W. Bl. 460, and (particularly where there has been any vexatious delay upon the part of the prosecutor, 3 Bur. 1468. 1 W. Bl. 460,) that the name of the prosecutor be disclosed. 3 Barn. & Ald. 373.

CHAPTER II.

Information.

SECT. 1. Information ex officio.

2. Information by the Master of the Crown Office.

SECT. 1.

Information ex officio.

What, and in what cases.] THE information ex officio, is a formal written suggestion of an offence committed, filed by the king's attorney general (or, in the vacancy of that office, by the solicitor general, 4 Bur. 2527,) in the court of King's Bench, without the intervention of a grand jury.

It lies for misdemeanors only, and not for treasons, felonies, Com. Dig. Information, A. 1. 1 Show. 107. 5 Mod. 459, or misprision of treason; 2 Hawk. c. 26, s. 3; for wherever any capital offence is charged, or an offence so highly penal as misprision of treason, the law of England requires that the accusation should be warranted by the oath of twelve men, before the defendant be put to answer it. The usual objects of informations ex officio are properly such enormous misdemeanors, as peculiarly tend to disturb or endanger the king's government, or to molest or affront him in the regular discharge of his royal functions; 4 Bl. Com. 304; such, for instance, as seditious or blasphemous libels or words; seditious riots not amounting to high treason; libels upon the king's ministers, the judges, or other high officers, reflecting upon their conduct in the execution of their official duties; obstructing such officers in the execution of their duties; obstructing the king's officers in the collection, &c of the revenue; against officers themselves for bribery, or for other corrupt or oppressive conduct, and the like.

Form of it.] The form of an information ex officio, is thus: "Trinity Term, 3 Geo. 4. "MIDDLESEX : Be it remembered that Sir Robert Gifford, Knight, Attorney General of our Sovereign Lord the King, who