and explained by 34 & 35 Hen. VIII. c. 26. § 75, 76.) be indicted and tried for those offences, if committed in any part (h) of Wales, before the justices of gaol delivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the county of Hertford or Salop; and not, as it should seem, in the county of Chester or Monmouth: the one being a county-palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII. (i) Murders also, whether committed in England or in foreign parts,(k) may by virtue of the statute 33 Hen. VIII. c. 23. be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25. all robberies and other capital crimes, committed in Newfoundland, may be inquired of and 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 in 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. 84.," 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 contrary to 12 Ann. 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 such English county as by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies commit[305] ted in Wales. (n) Felonies committed out of the realm, in burning or destroying the king'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 the offence is committed. By statute 13 Geo. III. c. 63. misdemeanors 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 13 k Ely's case, at the Old Bailey, Dec. 1720. Roache's case, Dec. 1775. 1 So held by all the judges, H. 11 Geo. III. in the case of Richard Mortis, on a case referred from the Old Bailey. m See page 245. n 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 of judgment, that Chester and not Salop was the next adjoining English county. But all the judges (in Mich. 15 Geo. III.) held the prosecution to be regular. (10) See the 5 Geo. IV. c. 67. as to courts in Newfoundland. 11) This act is repealed by the 3 Geo. IV. c. 126. and the above provision is not re-enacted. (12) In addition to the above acts remedying the inconveniences arising from the common law principle respecting the locality of the offences, are the following, which will be considered as fallows; viz. Venue: 1. Where offence commenced or consummated. 2. Where defendant arrested. 3. In adjacent county. 4. In any county. 5. Where offence on boundaries of county. 6. Where offence in Scotland or Ireland. 7. Where offence on high seas; and, lastly, Where offence beyond the seas. See in general 1 Chit. C. L. 179 to 189. a. 2 ed. First, VENUE, WHERE OFFENCE COMMENCED OR CONSUMMATED.-By the 43 Geo. III. c. 113. s. 5. accessories before the fact to felonies committed within the body of any county within the realm, or upon the high seas, may be indicted and tried either in the county in which the principal felony was committed, or in that, where they became such accessories; and if on the high seas, then according to the form pointed out by 33 Hen. VIII. c. 23. Secondly, VENUE IN COUNTY WHERE DEFENDANT ARRESTED.-By the 2 Jac. I. c. 11. persons guilty of bigamy may be tried in the county where they are arrested. This has been construed to mean, that in which the defendant is confined in prison, Hut. 131; or detained in custody. R. & R. C. C. 48. By the 42 Geo. III. c. 81. s. 3. the offence of robbing the mail may be prosecuted, if committed in England, in the county in which the party was apprehended; and so if in Scotland. By the 53 Geo. III. c. 108. s. 25. all criminal offences against any of the stamp acts tried in the county where the fact is committed. Yet if larciny be committed in one county, and the goods carried into another, the offender may be may be determined, either in the place where the offence is committed, or in that where the parties were arrested. It is a general rule, that where a statute creating a new felony directs that it may be tried in the county where the offender is apprehended, without containing any negative words, the provision is only cumulative, and he may still be tried in the county where the offence was committed. 1 Hale, 694. Third, VENUE IN ADJACENT COUNTY.-By the 38 Geo. III. c. 52. and 51 Geo. III. c. 100. it is provided that bills of indictment for offences committed within the county of any city or town corporate, may be preferred to the jury of the county next adjoining, at any sessions of oyer and terminer or general gaol delivery; and indictments found in the county of a city or town corporate may be removed at the instance of the prosecutor or defendant, and tried at the sessions of oyer and terminer and gaol delivery for the adjoining county. Fourth, VENUE IN ANY COUNTY. By the 9 Geo. II. c. 35. s. 26. assaults on officers of the customs or excise may be tried in any county. But this applies only to assaults committed on officers, when actually engaged in the duties of their office. 4 T. R. 490. By the 19 Geo. II. c. 34. s. 5. all offences relating to the revenue may be prosecuted in any county. 12 East, 244. By the 59 Geo. III. c. 69. s. 5. the offence of hiring and retaining a British soldier, to enlist in the service of a foreign potentate, &c. may, if committed out of the realm, be tried in any superior court, competent to try criminal offences. And by the 37 Geo. III. c. 70. s. 7. (made perpetual by 57 Geo. III. c. 7.) the offence of seducing sailors or soldiers from their allegiance, or inciting them to mutiny, or committing any traitorous practice, whether on the high seas or in England, may be tried in any county. Fifth, VENUE WHEN OFFENCE COMMITTED ON BOUNDARIES OF COUNTIES, &c.-By the 59 Geo. III. c. 96. felonies committed on stage coaches or other public carriages in the course of their journey through several counties, may be tried in any county through which the carriage passed in the course of the journey; and felonies committed on such carriages on highways forming the boundaries of two counties, or any where near the boundaries of two counties, may be tried in either of the two counties. And by sect. 2. of the same act, felonies on the boundary of two or inore counties, or within five hundred yards thereof, may be tried in either county. And by 59 Geo. III. c. 27. felonies comtnitted in vessels in canals, navigable rivers, or inland navigations, may be tried in any county or city through which such vessel passed in the course of the voyage or journey during which such felony was committed; and where the sides or banks of the canal, &c. or the centre thereof, constitute the boundary of any two counties or cities, the felony may be tried in either of such counties or cities through which such vessel passed in the course of the voyage or journey during which such felony was committed; but the act does not affect the admiralty jurisdiction, or commissioners authorized under the statute 28 Hen. VIII. c. 15. Sixthly, VENUE WHERE OFFENCE IN SCOTLAND OR IRELAND. In general, offences committed in Scotland and Ireland, are indictable only there, and if the party be apprehended here, he must be sent thither for trial. To remedy this in the case of larceny, by the 13 Geo. III. c. 31. s. 4. & 5. and 44 Geo. III. c. 92. ss. 7 & 8. offenders escaping with stolen property, from one part of the United Kingdom to another, may be indicted in the county where the same is found; and persons guilty of receiving only, may be tried in the place where they receive, without reference to the place where the goods were originally taken; see 1 East P. C. 772. By the 42 Geo. III. c. 81. s. 3. the offence of robbing the mail may be tried where the defendant was apprehended. Seventhly, VENUE WHERE OFFENCE on high Seas.-At common law no offence committed on the high seas, or beyond the realm, could be inquired of. But by the statutes 28 Hen. VIII. c. 15. and 39 Geo. III. c. 37. all offences committed on the high seas, or in any haven, river, creek, or place, where the admiral has or pretends to have jurisdiction, may be tried in any county of England, according to the king's special commission. 35 Hen. VIII. c. 2. By the 11 & 12 W. III. c. 7. s. 10., made perpetual by 6 Geo. I. c. 19., accessories to acts of piracy shall be tried under the provisions of the statute of Henry; and by the first section of the same statute, all offences committed at sea are triable by a special commission in any part of his majesty's dominious. So the 1 Anne, st. 2. c. 9. s. 4, for preventing the destruction of ships by masters and mariners, and the 11 Geo. I. c. 29. s. 7., and the 33 Geo. III. c. 67., direct, that the offences created by the statute of Anne, and referred to in the succeeding acts, shall be triable as provided by the 28 Hen. VIII. c. 15. And the 39 Geo. III. c. 37. extends the provisions of the statute of Henry to all offences committed on the high seas, out of the body of any county of this realm, and which are therefore now triable under the special commission of his majesty. But piratically stealing ship's anchor and cable, is a capital offence by the marine laws, and triable under the 28 Hen. VIII. c. 15., the 39 Geo. III. c. 37. not extending to such cases. Russ. & R. C. C. 123. By 43 Geo. III. c. 113. the offences of destroying, or procuring to be destroyed, any ship, within the body of a county of this realin, may be tried in the same manner as other felonies within the body of the county but if committed on high seas, they shall be tried as directed by the 28 Hen. VIII. c. 15.; and the 5th section provides, that accessories before the fact, to felonies committed on the high seas, may be indicted as prescribed by the statute 28 Hen. VIII. c. 15. that is, by special commission, in any county in England; and the 37 Geo. III. c. 70. provides, that treasonable practices committed on the high seas, shall be indictable in any county in England, at the as indicted in either; for the offence is complete in both. (0) Or he may be indicted in England, for larciny 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 larciny 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 larciny 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. (q) 13 When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill,14 "ig o 1 Hal. P. C. 507. p Stat. 13 Geo. III. c. 81. q Stat. 23 Hen. VIII. c. 3. 3 W. & M. c. 9. Under the above acts, the offences must be tried in this kingdom; but this is remedied by the 46 Geo. III. c. 54. which enacts, that all treasons, &c. and other offences whatever, committed on the sea, or in any haven, river, creek, or place where the admiral has jurisdiction, may be tried according to the course of law used for offences committed on land within the kingdom, in any of the king's islands, plantations, colonies, dominions, forts, or factories under his majesty's commission, as therein directed to be issued; and the commissioners appointed shall have the same powers as commissioners appointed under the 28 Hen. VIII. c. 15. Eighthly, VENUE WHERE OFFENCE BEYOND THE SEAS.-By the 43 Geo. III. c. 113. murderers and accessories before the fact, and manslaughter committed abroad, may be indicted and tried by a special commission, in any county in England, and this though the offence be committed in the dominion of a foreign state, if the defendant and deceased be both British subjects. R. & R. C. C. 294. By 57 Geo. III. c. 53. s. 1. all murders and manslaughters committed on land at Honduras by persons residing there, or in the islands of New Zealand and Otaheite, or other places not within the king's dominions, nor subject to any European power or state, nor within the territories of the United States, by any person sailing or belonging to any British vessel, or that have sailed or quitted any British ship, to live in such islands, &c. shall be punished in any of his majesty's islands, colonies, &c. under his majesty's commission, issued under the 46 Geo. III. c. 54. in the same manner as it the offence had been committed on the high seas; and by 59 Geo. III. c. 44. s. 1. all murders, manslaughters, rapes, robberies, and burglaries committed on land at Honduras, may be tried within such settlement, under his majesty's commission, in the same manner as is provided with respect to crimes directed to be deterinined by the 46 Geo. III. c. 54. in any of his majesty's islands, &c. But these acts do not in any way repeal the provisions of the 33 Hen. VIII. c. 23. By 7 Ann. c. 21. s. 5. Scotchmen are punishable for all treasons and misprisions of treason, committed on the high seas, or out of the realm of Great Britain, by a special commission. By the 12 Geo. III. c. 24. s. 2. setting on fire ships, arsenals, magazines, &c. out of the realm, may be indicted in any county within the kingdom, or at the place where the offence was committed. The crimes of governors of his majesty's plantations may, under 11 & 12 Wm. III. c. 12. be tried in any county of England by special commission. 1 Sess. Ca. 247. And offences, not felonious, committed by persons in the king's service in the British colonies or plantations, may, by 42 Geo. III. c. 85., be indicted and tried in England. 5 M. & S. 403. 8 East, 31. By the 24th Geo. III. c. 25. all British subjects holding offices under his majesty, or the East India company, may be brought to condign punishment for extortion and other misdemeanors committed in the East Indies, upon an information moved in, and granted by, the court of king's bench, or exhibited by the attorney-general, or the East India company. And such information may be tried by a special commission, in which the commissioners shall be three judges, one from each of the courts at Westminster, four peers, and six members of the house of commons, who are to be appointed according to the special directions of the statute. These commissioners have power to proceed, and to pronounce judgment according to the common law of England, and also to declare the party convicted incapable of serving the East India company; and such proceedings and judgment shall be final, and shall not be questioned in any other court. By the 11 & 12 Geo. III. c. 12. governors and commanders in chief might be prosecuted and punished by the court of king's bench, or by a special commission in England, for acts of oppression or crimes committed in colonies and plantations beyond the seas. Chitty. (13) See further as to the rules of venue at common law, and the mode of stating the venue, 1 Chit. C. L. 2 ed. 190 to 201. See also, id. 201. as to changing the place of trial. (14) And see further as to the finding, 1 Chit. C. L. 8 ed. 322 to $25. noramus ;" 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 farther answer. But a fresh bill may afterwards be preferred to a subsequent grandjury. If they are satisfied of the truth of the accusation, they then indorse upon it," a true bill;" anciently, "billa vera. The in- [306] dictment 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 afterwards, 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 delivered into court. Indictments 15 must have a precise and sufficient certainty.16 By statute 1 r 2 Hal. P. C. 161. (15) See in general 1 Chit. C. L. 2 ed. 168 to 304. Com. Dig. Indictment. (16) 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 T. R. 581. The cases of indictment for being a common scold or barrator, 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 receivd for received, 1 Leach, 134. 145.; and if the sense be clear, nice objections ought not to be regarded, 2 East, 259.; and in stating mere matter of inducement, not so much certainty is required as in stating the offence itself. 1 Ventr. 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 Ray. 1363. Stating an offence in the disjunctive is bad. 2 Stra. 901. 200. and see further, 1 Chit. C. L. 2 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. 2 ed. 332. 238, &c. Presumptions of law need not be stated, 4 M. & S. 105. 2 Wils. 147.; neither need facts of which the court will ex officio take notice. See ante, 3 vol. 293. n. (1). 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, Inight render it legal, for these must be shewn by defendant for his own justification. 2 Burr. 17 Hen. V. c. 5. all indictments must set forth the christian name, sirname, and addition of the state, and degree, mystery, town, or place, and the county of the offender and all this to identify his person. The time,18 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. (s) 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 king,) unless the bill of indictment be found within three years after the offence committed: (t) and in case of murder, the time of the death must be laid within a year and 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 appropri ated by the law to express the precise idea which it entertains of the [307] offence, that no other words, however synonymous they may seem, are capable of doing it. Thus, in treason, the facts must be laid to be done, "treasonably and against his allegiance ;" anciently, "proditorie et contra ligeantiae suae debitum :" else 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 statute 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 2 Hawk. P. C. 435. t Fost. 249. u See Book III. page 321. 1036. 1 Bla. Rep. 250. Facts which lie more peculiarly within the defendant's than the prosecutor's knowledge, need not be shewn 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, 3. 1 T. 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, 5. 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, shewing its application, 6 T. R. 162. 7 Moore, 1.; but it has been said to 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 fac simile 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. 2 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. 2 ed. 304. As to when an action as well as an indictment may be brought, see ante, 6. Chitty. (17) As to the statement of the name and addition of the defendant, see 1 Chit. C. L. 2 ed. 202 to 210.; and see id. 211 to 217. as to the statement of the names of prosecutor and third per sons. (18) As to the statement of time, see in general, 1 Chit. C. L. 217 to 225. |