70

Moor, Cro. El. 750: R. v. Morgan, 2 Str. 1066; but where a former statute is discontinued, and revived by a subsequent one, Lord Hale says, that it is safer in such a case to conclude contra formam statutorum, although, according to good authorities, contra formam statuti would be sufficient. 2 Hale, 173. An indictment for a common-law felony, committed abroad, but made triable in this country by statute, need not conclude contra formam statuti. R. v. Sawyer, R. & R. 294.

Omitting to conclude contra formam statuti, when it is essential [ *57 ] *is error, and may be made the subject of demurrer, motion in arrest of judgment, or writ of error; for this is not cured by the stat. 7 G. 4, c. 64, s. 20. R. v. Pearson, 1 Mood. C. C. 313: R. v. Radcliffe, 2 Mood. C. C. 68. So, concluding contra formam statuti for statutorum, or the contrary, may be made the subject of a demurrer; but 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 the insertion of the words "against the form of the statute," instead of the words "against the form of the statutes," or vice versî. 7 G. 4, c. 64, s 20. If an indictment conclude contra formam statuti, when it should conclude as at common law, the mistake is not material, and the words contraformam statuti, may be rejected as surplusage. R. v. Matthews, 5 T. R. 162; R. v. Bathurst, Say. 225: Ward v. Rich, 1 Vent. 103.

The conclusion, contra formam statuti, will not supply the omission of the words "against the peace," &c. R. v. Cook, R. & R. 176, which, in an indictment founded upon a statute, besides the words contra formam statuti, are absolutely necessary. 2 Hale, 188. If these words be omitted, the defendant may demur, but he cannot, upon that ground, move in arrest of judgment, or bring a writ of error. 7 G. 4, c. 64, s. 20; Reg. v. W. Smith, 2 M. & Rob. 109.

SECT. 4.

Joinder of two or more Defendants in one Indictment.

WHERE several persons join in the commission of an offence, all, or any number of them, may be jointly indicted for it, or each of them may be indicted separately. Thus, if several commit a robbery, burglary, or murder, they may be indicted for it jointly, 2 Hale, 173, or separately; and the same, where two or more commit a battery, or are guilty of extortion, or the like. R. v Atkinson, 1 Salk. 382. R. v Atkinson, 1 Salk. 382. And though they have acted separately, yet, if the grievance is the result of the acts of all jointly, all may be indicted jointly for the offence. R. v. Trafford, 1 B. & Ad. 874. Where money has been obtained under false pretences, and the false pretences were conveyed by words spoken by one defendant in the presence of the others, all of whom acted in concert together, it

was holden that they might all be indicted jointly. R. v. Young, 3 T. R. 98. So, where two persons joined in singing a libellous song, it was holden that they might be indicted jointly; R. v. Benfield, 2 Burr, 985; and the same, where two or more persons join in any other kind of publication of a libel. But if the publication of each party be distinct, as if two booksellers, not being partners, sell the libel at their respective shops, they must be indicted separately. So, two or more cannot be jointly indicted for perjury, R. v. Phillips, 2 Str. 921, or for seditious or blasphemous words, or the like, because such offences are in their nature several. Even where several commit a joint act, which act, however, is not of itself illegal, but becomes so merely by reason of some circumstances applicable to each individual severally and not jointly, they must be indicted separately; 2 Hawk. c. 25, s. 89; thus, several partners cannot be indicted jointly for exercisting their trade without having served an apprenticeship. R. v. Atkinson, 1 Salk. 382: R v. Weston, 2 Str. 623. But principals in the first and second degree, and accessaries before and after the fact, may all be joined in the same indictment; 2 Hale, 173; *or [ *58 ] the principals may be indicted first, and the accessaries after the conviction of the principals, or before, for a substantive offence. (See ante, p. 8). It is said that several may be jointly indicted for severally erecting common inns, ad commune nocumentum, if it be said, that they separaliter erexerunt, &c.; and the same as to keeping disorderly houses, &c.: Ib.: but it is much better, and more usual in practice, to indict the proprietors of each house separately.

Misjoinder of defendants may be made the subject of a demurrer, motion in arrest of judgment, or writ of error; or the court will in general quash the indictment. But where there are different counts against different persons in the same indictment, this, though a ground for moving to quash the indictment, is, it seems, no cause of demurrer, R. v. Kingston, 8 East, 41, provided the counts be otherwise such in substance as may be joined.

Upon an indictment against two persons, charging them with a joint and single offence, as stealing in the dwelling-house, both or either may be found guilty, but they cannot be found guilty of separate parts of the charge; and if they be found guilty separately, judgment cannot be passed upon one, unless a pardon be obtained, or a nolle prosequi be entered, as to the other. R. v. Hempstead, R. & R. 344. So, if two be charged jointly with receiving stolen goods, a joint act of receiving must be proved: proof that one received in the absence of the other, and afterwards delivered to him, will not suffice. R. v. Messingham, 1 Mood. C. C. 257. It seems that several receivers may be charged in the same indictment with separate and distinct acts of receiving: Reg. v. Pulham, 9 C. & P. 281, (ante, p. 8): at least it is too late after verdict to object that they should. have been indicted separately. Reg. v. Hayes, 2 M. & Rob. 156.

Where several persons are indicted for burglary and larceny, one may be found guilty of burglary and larceny, and the others of the larceny only. R. v. Butterworth, R. & R. 520. See R. v. Turner, 1 Sid. 171.

SECT. 5.

Joinder of several offences in different counts in one indictment.

We have already seen, (ante, p. 53), that if a defendant be charged with two or more offences in the same count of an indictment, the count will be bad for duplicity, except in one or two excepted cases. As to charging a defendant with different offences in different counts, it admits of a different consideration.

In an indictment for high treason, there may be different counts, each charging the defendant with different species of treason against the Queen and her government, such as compassing the Queen's death, levying war, adhering to the Queen's enemies, within stat. 25 Ed. 3, st. 5, c. 2, and the conspiracies to levy war, within sat. 36 G. 3, c. 7, s. 1; but you cannot join counts for treason against the Queen and her government, and treasons relating to other matters, where the judgments are different; at least I have never known or read of an instance of the kind.

A defendant ought not to be charged with different felonies in different counts of an indictment; as, for instance, a murder in one count and a burglary in another, or a burglary in the house of A. in one count and a distinct burglary in the house of B. in another, or a

[ *59] *larceny of the goods of A. in one count and a distinct larceny of the goods of B., at a different time, in another. If the objection in such a case be made before the defendant has pleaded, or the jury are charged, the judge in his discretion may quash the indictment; or if it be not discovered until after the jury are charged, the judge may put the prosecutor to his election on which charge he will proceed; R. v. Young, 3 T. R. 106; but it is no objection in arrest of judgment. 3 T. R. 98: see Reg. v. Hinley, 2 M. & Rob. 524: O'Connel v. Reg., 11 Cla. & Fin. 155. Thus, upon an indictment for receiving stolen goods, if it appear that the articles were received at different times, the prosecutor must elect as to the receipt of which articles he will prosecute; but the mere probability that the goods were stolen or received at different times is no ground for putting the prosecutor to his election. R. v. Dunn, 1 Mood. C. C. 146: Reg. v. Hinley, suprà. Where several articles are mentioned in the indictment, the prosecutor must prove that they were all taken at the same time, or if at several times, so near to each other as to form parts of one continuing transaction, otherwise the court will put the prosecutor to his election. R. v. Smith, 1 Mood. C. C. 295: see R. v. Ellis, 6 B. & C. 145. So, upon an indictment for robbery, and for an

assault with intent, &c., in different counts, the prosecutor must elect upon which he will proceed. R. v. Gough, 2 M. & Rob. 71: R. v. Smith, 3 C. & P. 412. Where, however, the defendant was indicted under the stat. 7 W. 4 & 1 Vict. c. S5, ss. 2, 4, in several counts for stabbing, with intent to murder, with intent to maim and disable, and with intent to do some grievous bodily harm, it was holden, that the prosecutor was not bound to elect upon which count he would proceed, notwithstanding the judgment is by the statute different, being on the first count capital, and on the others transportation. Reg. v. Strange, 8 C. & P. 172. And where to those counts was added a count for a cominon assault, and the prisoner being found guilty of an assault, the verdict was entered on the count for stabbing with intent to do grievous bodily harm, under 7 W. 4 & 1 Vict. c. 85, s. 11, the conviction was held good. Reg. v. R. Jones, 2 Mood. C. C. 94; 8 C. & P. 776. In a case of arson, the indictment contained five counts, each charging a firing of a house of a different owner: but it being opened that the five houses were in a row, and the same fire burnt them all, the judge would not put the prosecutor to elect, it being all one transaction. Reg. v. Trueman, 8 C. & P. 727. The application for a prosecutor to elect is an application to the discretion of the judge, founded on the supposition that the case extends to more than one charge, and may therefore be likely to embarrass the prisoner in his defence. Id. Reg. v. Hinley, 2 M. & Rob. 524. It is no objection, in point of law, that an indictment charges prisoners in one count as principals in stealing, and in another as receivers ; but, upon a case reserved, the judges were divided in opinion, whether the prosecutor should have been put to his election, and directed that both charges should not, for the future, be put in the same indictment. R. v. Galloway, 1 Mood. C. C. 234: R. v. Fowler, 3 C. & P. 413: R. v. Madden, 1 Mood. C. C. 277. A defendant may be charged as accessary before the fact in one count, and as accessary after the fact in another count, to the same felony, without putting the prosecutor to his election, and may be convicted on both counts. R. v. Blackston, S C. & P. 43. So he may be indicted as a principal in the first degree in one count, and as principal in the second degree in another count. R. v. Gray, 7 C. & P. 174. And a receiver may be indicted as an acces- [ *60 ] sary in one count, and for a substantive felony in another count;

and although, in his discretion, the judge may put the prosecutor to his election, he will not do so whenever it is clear that there is only one offence, and the joinder of counts cannot prejudice the defendant. R. v. Austin, 7 C. & P. 796: R. v. Hartall, Id. 475: R. v. Wheeler, Id. 170: Reg. v. Pulham, 9 C. & P. 281.

Although a prosecutor is not permitted to charge a defendant with different felonies in different counts, yet he may charge the same felony in different ways in several counts, in order to meet the facts of the case:

as, for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A. or of B., they may be stated in one count as the goods or house of A., and in another as the goods or house of B. See R. v. Eggington,

2 B. & P. 508.

The statute 7 & 8 G. 4, c. 28, s. 6, which abolishes the benefit of clergy in cases of felony, provides that nothing therein contained shall prevent the joinder in any indictment of any counts which might have been joined before the passing of that act.

Indictments for misdemeanors may contain several counts for different offences, provided the judgment upon each be the same. R. v. Young,

3 T. R. 98, 106: R. v. Towle, 2 Marsh, 466: R. v. Johnson, 3 M. & S. 539 R. v. Kingston, 8 East, 46 and see R. v. Benfield, 2 Burr. : 984 R. v. Jones, 2 Camp. 131. Even where several different persons were charged in different counts with offences of the same nature, the court held that it was no ground for a demurrer, however it might be for an application to the discretion of the court to quash the indictment. R. v. Kingston, 8 East, 41. Where two defendants were indicted for a conspiracy and a libel, and at the close of the case for the prosecution there was evidence against both as to a conspiracy, but against one only as to the libel, the judge then put the prosecutor to elect which charge he would proceed upon. Reg. v. Murphy, 8 C. & P. 297. If, however, where there are several counts charging different offences in law, the judgment be entered up generally upon all, that the defendant, "for his said offences," be adjudged, &c., and it appears that any count was bad in law, the judgment will be reversed on error. O'Connel v. Reg., 11 Cla. & Fin. 155. To prevent this, it is now usual, in cases of misdemeanor, to pronounce and enter up the same judgment separately on each count of the indictment.

It may be necessary to mention, that the court will not order counts to be struck out of an indictment, as they will out of a declaration in civil cases; for the latter is the suggestion of the party merely, the former the finding of a grand jury. R. v. Pewtress, 2 Str. 1026.

The commencement of a second or subsequent count is in form thus : "And the jurors aforesaid, upon their oath aforesaid, do further present, that," &c., so proceeding to state the offence.

SECT. 6.

Within what time the Bill must be preferred.

AT common law there was no time limited for commencing a suit by the King; and therefore, in all cases of treason, felony, and [ *61] misdemeanor, *where a time is not now limited by statute,