statute, or subjected to a greater degree of punishment by any statute, (although the defendant may demur, if the indictment do not describe the offence with sufficient certainty), he cannot, if it describe the offence in the words of the statute, move in arrest of judgment, or bring a writ of error; for, after verdict, the indictment will, in that case, be sufficient to warrant the punishment. 7 G. 4, c. 64, s. 21. It may be necessary, also, to mention in this place, that no objection can now be taken to any indictment, for that the matters alleged, or the persons described in it, do not correspond in number or gender with the description in the statute. upon which the indictment is framed; for whenever any statute *relating to any offence, whether punishable upon indictment or [ *53 ] summary conviction, in describing or referring to the offence, or the subject-matter on or with respect to which it shall be committed, hath used or shall use words importing the singular number or the masculine gender only, yet the statute shall be understood to include several matters, several persons, females and males, bodies corporate and individuals, unless it be otherwise specially provided, or there be something in the subjector context repugnant to such construction. 7 & 8 G. 4, c. 28, s. 14. On the other hand, if the offence be well laid, but there be a material variance between the offence as laid, and the evidence offered to support it, the defendant must be acquitted.

It must not be double.]--The defendant must not be charged with having committed two or more offences in any one count of the indictment; for instance, one count cannot charge the defendant with having committed a murder and a robbery, or the like. So two defendants cannot be jointly charged with murder or manslaughter by means of an injury done by one of them to the deceased on one day, and another injury done by the other of them on a different day. Reg. v. Devett, 8 C. & P. 639. The only exceptions to this rule are to be found in indictments for burglary, in which it is usual to charge the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended; and in indictments for embezzlement by clerks and servants, (or public officers, 2 W. 4, c. 4, s. 3), which may charge any number of distinct acts of embezzlement, not exceeding three, which may have been committed against the same master within six months inclusive. 7 & 8 G. 4, c. 29, s. 48. The proper course nnder this statute is to charge the several acts in several counts. Reg. v. Purchase, C. & Mar. 617. Laying several overt acts in a count for high treason is not duplicity, Kelynge, 8, because the charge consists of the compassing, &c., and the overt acts are merely evidences of it; and the same as to conspiracy. That the defendant published and caused to be published a libel is not double, for they are the same offence. So, a count in an indictment charging a man with one endeavour to procure the commis

sion of two offences, is not bad for duplicity, because the endeavour is the offence charged. R. v. Fuller, 1 B. & P. 181. And it is now generally understood, that a man may be indicted for the battery of two or more persons in the same count, R. v. Benfield, 2 Bur. 984: see 2 Str. 890; 2 Ld. Raym. 1572, contra, or for a libel upon two or more persons, where the publication is one single act, R v. Jenner, 7 Mod. 400; 2 Burr. 983, without rendering the count bad for duplicity. In felonies also, the indictment may charge the defendant, in the same count, with felonious acts with respect to several persons-as, in robbery, with having assaulted A. & B., and stolen from A. one shilling, and from B. two shillings-if it was all one transaction. Reg. v. Giddings, C. & Mar. 694.

In civil actions, the usual mode of objecting to pleadings for duplicity is by special demurrer; it is cured by general demurrer, or by the defendant's pleading over. In criminal cases, the defendant may object to it by special demurrer, perhaps also upon general demurrer, or the court in general, upon application, will quash the indictment; but it is extremely doubtful whether it can be made the subject of a motion in arrest of judgment or of a writ of error; and it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other.

*It must be positive.]-Every fact and circumstance stated [ *54] in an indictment must be laid positively, that is, the indictment must directly affirm that the defendant did so and so, or that such a fact happened under such and such circumstances; it cannot be stated by way of recital, "that whereas," &c., or the like. 2 Hawk. c. 25, s. 60. R. v. Whitehead, 1 Salk. 371: R. v. Crowhurst, 2 Ld. Raym. 1363; 1 Show. 337: R. v. Askman, 1 Sess. Ca. 159. As, for instance, where an indictment for not obeying justice's order set forth the order by way of recital, "that whereas a certain order," &c., although it charged the not obeying the order positively, it was holden bad. R. v. Crowhurst, 2 Ld. Raym. 1363. So, stating a matter by way of argument or inference would render the indictment bad; as, for instance, that by a certain indenture testatum existit that J. S. demised, &c.; and this, perhaps, even in mere matter of inducement, although in one case the contrary certainly has been decided. R. v. Goddard, 3 Salk. 171.

•

A defect in these respects is not cured by verdict; and consequently the defendant may take advantage of it by demurrer, motion in arrest of judgment, or writ of error.

It must not be repugnant.]-Where one material part of an indictment is repugnant to another, the whole is void; as, for instance, an indictment charging the defendant with forging a bond by which J. S. was bound, &c. (which is impossible if the writing be forged); or with disseising A.,

and it appears upon the face of the indictment that A. had but an estate for years; 2 Hawk. c. 25, s. 62; with stealing the goods of the said J. S., where the name of J. S. was not previously mentioned; Id. s. 72; or in the parish aforesaid, where no parish was before mentioned; (ante, p. 39); for forging a bill of exchange, stating it to be signed by the party whose signature was alleged to be forged; R. v. Carter, 2 East, P. C. 985; or the like. If the repugnancy be in an immaterial part, it may in general be rejected as surplusage, especially after verdict. Bac. Abr., Pleas, (14). Thus, upon an indictment tempore 1 G. 4, for stealing a mare in the fourth year of the reign of G. 4, against the peace of our lord the now king, the words "fourth year of the" may be rejected as surplusage. R. v. Gill, R. & R. 431. But still it is a general rule, that an allegation in pleading, which is sensible and consistent in the place where it occurs, and not repugnant to antecedent matter, cannot be rejected as surplusage, though laid under a videlicet, however inconsistent it may be with an allegation subsequent. R. v. Stevens, 5 East, 244.

Averments, how made.]-The usual way of making an averment in an indictment is thus: "And the jurors aforesaid upon their oath aforesaid, do further present, that," &c.; or, if it be connected with what has immediately preceded it, it may be introduced simply thus: "And that," &c., then proceeding to state the matter of the averment. But when the matter of the averment is but a mere adjunct of some person or thing preceding, it does not require even this technical mode of introducing it; thus, "that A. being an officer," &c., is a sufficient averment that A. was an officer; see R. v. Johnson, 2 Rol. Rep. 226: R. v. Boyall, 2 Burr. 832: R. v. Bootie, Id. 864: R. v. Higgins, Id. 1232: R. v. Somerton, 7 B. & C. 463: 2 Hawk. c. 25, s. 112; "that A., knowing that B. was indicted for forgery, concealed a witness against him," is a sufficient averment that B. was indicted; Fitzg. 122, 263; so, "dans plagam: mortalem," R. v. Long, 5 Co. 120; March, pl. 127, or "sci

ens *that," &c., R. v. Lawley, 2 Str. 904, is a good averment. [ *55 ] So, where an indictment for perjury stated that "at and upon the hearing of the said complaint," the defendant deposed, &c., this was holden to be a sufficient averment that the complaint was heard. R. v. Aylett, 1 T. R. 70.

3. Conclusion of the Indictment.

For an offence at common law.]—An indictment for an offence at common law concludes thus: "Against the peace of our lady the Queen, her Crown and dignity.” Indictments for nuisance usually conclude, "to the great damage and common nuisance of all the liege subjects of our said lady the Queen," &c., as well as "against the peace," &c.; but this conclusion, ad commune nocumentum, does not seem to be essential.

"The words " against the peace of our lady the Queen," however, seem to be essential in all cases, 2 Hale, 188: R. v. Paffrey, Cro. Jac. 527: R. v. Leyton, Cro. Car. 584: R. v. Lane, 6 Mod. 128: R. v. Cook, R. & R. 176, excepting in indictments for non-feasance; R. v. Wyatt, 1 Salk. 381; 1 Vent. 108, 111; and even in these they are uniformly used: "against the peace," without saying "of our lady the Queen," would be insufficient. 2 Hale, 188. If the offence were committed in the reign of the late King, the indictment should conclude, "against the peace of our lord the late King," &c.; if "of our Lord the King," or "of our lord the now King," it would be bad; 2 Hale, 189; and formerly the defendant might have moved in arrest of judgment, R. v. Lookup, 3 Burr. 1901: R. v. Taylor, 5 D. & R. 422, or brought a writ of error. Contra pacem nuper regis et regis nunc, might answer in such a case, R. v. Winter, Yelv. 66, because the words "et regis nunc" might be rejected as surplusage. On the other hand, if an offence (as, for instance, a nuisance) commence in the reign of one king, and still continue in the reign of his successor, the indictment should properly conclude against the peace of both. 2 Hale, 189. If an indictment allege the offence to have been committed in the present reign, and conclude "against the peace of our said late lord the King," the word "late may be rejected as surplusage. R. v. Scott, R. & R. 415.

By 7 G. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the words "against the peace.' A conclusion "against the peace of the present King," for an offence in the reign of the late King, is cured by this statute; for it is the same as if no conclusion had been stated, R. v. Chalmers, 1 Mood. C. C. 352; 5 C. & P. 331, and therefore the only mode in which such an objection can now be taken is by demurrer. Reg. v. W. Smith, 2 M. & Rob. 109. But an indictment charging an offence on a day within the present reign, and concluding against the peace of the present King, is not supported by proof of an offence on a day in a former reign; and this objection still entitles the prisoner to an acquittal. Reg. v. Pringle, Id. 276.

The words "her crown and dignity," though always used, are not essential. 2 Hale, 188.

For an offence by statute.]—An indictment for an offence created by statute concludes thus: "Against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity."

[ *56 ] *Where a statute either creates the offence altogether, or makes an offence at common law an offence of a higher nature, (as, for

instance, where it makes a misdemeanor a felony), an indictment for the offence must conclude contra formam statuti. 2 Hale, 192; 2 Hawk. c. 25, s. 116; R. v. Clark, 1 Salk. 370: R. v. Harrison, 2 Rol. Rep. 38. If the statute do not make it an offence of a higher nature, but merely increase or otherwise alter the punishment, &c., (as, for instance, perjury under stat. 5 El. c. 9), the indictment, in order to bring the offence within the statute, must conclude contra formam statuti; (sed quære, Reg. v. Williams, Q. B., E. T. 1845); but if it do not conclude, it may still be a good indictment for the offence at common law. 2 Hale, 191, 192. Or if the statute be merely declaratory of an offence at common law, (as high treason, for instance), without adding to or altering the punishment, &c., an indictment for the offence may conclude contra formam statuti, or as at common law. 2 Hale, 189.

But where a statute merely takes away a certain privilege or benefit from a person committing a common-law offence under particular circumstances, to which benefit or privilege the defendant would have been entitled at common law, as for instance, where it takes away the benefit of clergy from a common-law felony, an indictment for the offence, although it must charge it to have been committed under the circumstances mentioned in the statute, should not conclude contra formam statuti. 2 Hale, 190. Thus, indictments for murder, manslaughter, robbery, burglary, house-breaking, stealing in a dwelling-house, and the like, need not conclude contra formam statuti; Ib.; unless, in the latter instances, a larceny be committed of a thing which at common law was not the subject of larceny. R. v. Pearson, 1 Mood C. C. 13; 5 C. & P. 121: R. v. Chatburn, 1 Mood. C. C. 403: R. v. Lucy Berry, 1 M. & Rob. 463: Reg. v. Polly, 1 C. & K. 77. In order to warrant a sentence of transportation for life on an indictment for larceny after a previous conviction for felony, the indictment need not conclude contra formam statuti. Reg. v. Blea, S C. & P. 735.

Where one statute is relative to another, as where one creates the of fence and the other the penalty, an indictment for the offence must conclude contra formam statutorum. 2 Hale, 173; Broughton v. Moore, Cro. Jac. 142. So, where one statute declares the offence and awards a punishment, and by a subsequent statute the punishment is altered, the indictment should conclude contra formam statutorum. Reg. v. Adams, 1 C. & Mar. 299. But if one statute subject an offence to a pecuniary penalty, and a subsequent statute make it a felony, an indictment for the felony should conclude contra formam statuti. R. v. Pim, R. & R. 425. Where the offence is prohibited by several independent statutes, the indictment may conclude contra formam statutorum, or statuti. 2 Hawk. c. 25, s. 117. If the statute creating the offence be temporary, and be continued or made perpetual by another statute, an indictment for the offence may conclude contra formam statuti: 2 Hale, 173; Dingley v.