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the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred ; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably *found too large and [303] inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and recieve indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes (g).

The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter anciently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in either, because no complete act of felony was done in any one of them; but by statute 2 & 3 Edw. VI. c. 24. he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea, or out of England: or, vice versa ; the offenders and their accessaries may be indicted in the county where either the death, poisoning, or stroke shall happen (6). And so in some other cases; as particularly, where treason is committed out of the realm, t may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35 Hen. VIII. c. 2, and 5 & 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers of the current coin, together with all man- [*304] ner of felons and their accessaries, may by statute 26 Hen. VIII. c. 6, (confirmed 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 fort ign parts (k). may by virtue of the statute 33 Hen. VIII. c. 23. be inquired of and tried by the kings special commission in any shire or place in the kingdom. By sta.

(g) State Trials, IV. 183.

(A) Stra. 533. 3 Mod. 134. i) See Hardr. 66.

(k) Ely's case, at the Old Bailey, Dea 1790 Roache's case, Dec. 1775.

(6) See accordingly, 2 R. S. 727, 6 47, 48.

tute 10 & 11 W. III. c. 25. all robberies and other capital crimes, com mitted 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 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. . 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 ad joining 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 committed in

Wales (n). Felonies committed out of the realm, in burning or [*305] destroying the king's ships, *magazines, or stores, may by sta

tute 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 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 (o) (7). 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 (8). 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 (q) (9).

(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 assises, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It

(7) See accordingly, 2 R. S. 727, § 50. (8) Contra in New-York; see 2 R. S. 727, $50.

(9) 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, 7, if any British subject shall be charged in Engand with any murder or manslaughter, or with Deing accessary before the fact to any murder manslaughter, ca amitted on land nut of the

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When the grand jury have heard the evidence, if they think it a ground. Less accusation, they used formerly to indorse on the back of the bill," ig 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 further


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 neen actually committed in such county or place and by 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 versa, every offence committed in respect of any such case, whether the same shall amount to the offence of murder, or manslaughter, or being accessary before the fact to murder, or after the fact to murder or manslaughter, inay be tried and punished in the county or place in England in which such death, stoke, &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. 12, where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within 500 yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanor may be tried and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein.t

As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, 13, where any felony or misdemeanor shall De committed on any person, or on or in respect of any property in or upon any coach, waggon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any voyage upon any inland navigation, such felony or misdemeanor 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 misdemeanor 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 misdemeanor 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 vessel, shall have passed, in the course of the journey or voyoge during which such felony or misdemeanor 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 and 8 Geo. IV. c. 29, 76, if any person having feloniously taken any property in any one part of the united kingdom, shall af

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terwards 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 a. ceived, in any one part of the united kingdom, any stolen property, which shall have been sto len 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 accessaries. By 7 Geo. IV. c. 64, ◊ 9, accessaries before the fact any felony, may be tried in any court that has jurisdiction to try the principal offender, although the offence of such accessaries may be committed on the high seas, or on land, within or without the king's dominious; and if the principal's offence is committed in one county, and the other offence in another, such accessaries may be tried in either; and by ◊ 10, a similar provision is made with respect to accessaries after the fact to felony.

As to treasons. By 35 H. VIII. c. 2. (which is not repealed by 1 and 2 P. 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 Eng. land. See Chit. Cr. L. 188.

An indictment for bigamy may, by 9 Geo. IV. c. 31, § 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 custoins and excise may be tried in any county of England. See 6 Geo. IV. c. 108 ss. 74 and 78; and 7 and 8 Geo. IV. c. 53, § 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 com. mitted in the county at large, and it was com mitted in the county of a city or town, this is bad. Rex v. Mellor, R. and R. 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 v. Goff, id. 179. The 26 H. VIII. c. 6, § 6, which makes felonies in Wales triable in the next English county, ex tends to felonies created since that statute Rex v. Wyndham, id. 197. travelling by water. 2 R. S. 727, § 43, 50.

answer But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, [*306] they then "indorse upon it, "a true bill ;" anciently, "billa vera.” The indictment is then said to be found, and the party stands in. dicted. 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 accu sation 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 indict ment, when so found, is publicly delivered into court.

Indictments must have a precise and sufficient certainty (10). By sta

(r) 2 Hal. P C. 161.

(10) 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 sig nification, as undertood for understood, and recevd 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. í Ventr. 170. Com. Dig. Indictment, G. The charge must be sufficiently explicit to support tself; for no latitude of intention can be alowed 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 undersood by every one, al leging 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 ased to express the precise idea which the

law entertains of the offence; see the instances in the text. The offence must be positive ly charged, and not stated by way of recital, so that the words "that whereas" prefixed will render it invalid. 2 Stra. 900. n. 1. 9 Lord Ray. 1363. Stating an offence in the disjunctive is bad. 2 Stra 901. 200, and sot further, 1 Chit. C. L. 2 ed. 236. Repugnan cy, 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 su perfluous and immaterial will seldom prejudice. For if the indictment can be support. ed without the words which are bad, they may on arrest of judgment be rejected as surplus. age. I 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 book, 293. note (1). It is not ne cessary 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 of fence; for if so, 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 stat ed 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 of fence, might render it legal, for these must be shewn by defendant for his own justification. 2 Burr. 1036. 1 Bla. Rep. 230. Facts whien lie more particularly within the defendant's than the prosecutor's knowledge, need not be shewn with more than a certainty to a com mon 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 whe knowledge must be presumed, and the event


tute 1 Hen. 7. c. 5. all indictments must set forth the christian name. ?T name, and addition of the state, and degree, mystery, town or place, and the county of the offender and all this to identify his person (11). 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 (s) (12). 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

(s) 2 Hawk. P. C. 435

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 applications, 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 al lowed 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 indict ment. 2 Hale, 170. 146.

293, 294.

As to the insertion of several counts in an indictment, see 1 Chit. C. L. 248 to 250; and us to when part of a count inay be found, id. 250 to 252. As to the joinder of several offences, id. 253 to 256. As to variances, id. 2 ed. As to the amendment of indictments, id. 297 to 298; and when an indict ment 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.

(11) In New-York, these and other defects of form not tending to the prejndice of the defendant, do not affect an indictment. (2 R. S. 728, § 52.)

(12) By 7 Geo. IV. c. 64, § 20, “no judgment upon any indictment or information, for any felony or misdemeanor, whether after verVOL. II


(t) Fost. 249.

dict 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 versa; nor for that any person or persons mentioned in the indictment or information, is or are designat. ed by a name of office, or other descriptive ap pellation, 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 the essence of the offence; nor for stating the time imperfectly; not for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the informa tion, 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 ju risdiction over the offence." The objections enumerated in this clause are no longer avail. able, 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, judgment is neither stayed nor reversed, but given in his favour. See further on this subject, Car. Cr. 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 be fore the jurors by the keeper of the prison, will be sufficient. Rex v. R. and R. C. C. 489. But an indictment against him as a person to the jurors unknown, without some thing to ascertain whom the grand jury meant to designate, is insufficient iu ibid.

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