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 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 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, I 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. 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 undersood 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 preju. dice. 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 book, 293. note (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 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 which lie more particularly 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 tute 1 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 (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 indict2 Hale, 170. 146. ment. 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. (11) In New-York, these and other defects of form not tending to the prejudice 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 designated by a name of office, or other descriptive appellation, 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 information, 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 available, 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 something to ascertain whom the grand jury meant to designate, is insufficient. Id. ibid. 81 must be laid within a year and a 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 appro priated by the law to express the precise idea which it entertains [307] of the 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 “ravished," is necessary, and must not be expressed by any periphrasis; in order to render the crime certain. So in larcenies also, the words "felonice cepit et asportavit, feloniously took and carried away," are necessary to every indictment; for these only can express the very offence. Also in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also, where a limb, or the like, is absolutely cut off, there such description is impossible (v). Lastly, in indictments, the value of the thing, which is the subject or instrument of the offence, must sometimes be expressed. In indictments for larcenies this is necessary, that it may appear whether it be grand or petit larceny; and whether entitled or not to the benefit of clergy (13); in homicide of all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand. The remaining methods of prosecution are without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One of these by the common law, was when a thief was taken with the mainour, that is, with the thing stolen upon him in manu. For he might, when so detected flagrante delicto, be brought into court, ar[*308] raigned, and tried, without indictment: as by the Danish law (u) See Book III. page 321. (13) There are some recent enactments, respecting indictments for larceny, which it seems important to notice here. By 7 Geo. IV. c. 64, § 14, "to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint own ers," the property of partners may be laid in any one partner by name, and another, or others. By 15. property belonging to counties, &c., may be laid in the inhabitants, without naming them. By 16, property ordered for the use of the poor of parishes, &c. may be laid in the overseers, without naming them; and materials, &c., for repairing highways, may be laid to be the property of the surveyor, without naming him. By 17, property of turnpike trustees may be laid in the trus tees, without naming them. And by 18, property under commissioners of sewers may † See 2 R. S. 727, § 40. (v) 5 Rep. 122. be laid in the commissioners, without naming them. By 7 and 8 Geo. IV. c. 29, § 21, in indictments for stealing records, &c., it is unnecessary to allege either that the article is the property of any person, or that it is of any value. By 22 a similar provision is made respecting wills. By 44, where the materials there in enumerated are fixed in any square, street, or other like place, it is unnecessary to allege them to be the property of any person. And by 46, in indictments against tenants and lodgers for stealing property from houses or apartments let to them, the property may be laid either in the owner or person letting to hire. For the cases bearing upon this subject, see Car. Cr. L. 25, et seq.; Col. Crim. Stat. 329: and see a full and able summary of the law of larceny, id. 325 343. 2 R. S. 680, § 69. he might be taken and hanged upon the spot, without accusation or trial (w). But this proceeding was taken away by several statutes in the reign of Edward the Third (x): though in Scotland a similar process remains to this day (y). So that the only species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury, now seems to be that of information. III. Informations are of two sorts: first, those which are partly at the suit of the king, and partly at that of a subject; and secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the king, and another to the use of the informer; and are a sort of qui tam actions (the nature of which was explained in a former book (z), only carried on by a criminal instead of a civil process: upon which I shall therefore only observe, that by the statute 31 Eliz. c. 5. no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence (14). The informations that are exhibited in the name of the king alone, are also of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney-general; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the king's coroner and attorney in the court of king's bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public. The objects of the king's own prosecutions, filed ex officio by his own attorney-general, are properly such *enor- [*309] mous misdemeanors, as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal: which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the master of the crown-office upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind (a), not peculiary tending to disturb the government (for those are left to the care of the attorney-general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion (15). And when an information is filed, either (t) Stiernh. de jure Sueon. 1. 3, c. 5. (z) 2 Hal. P. C. 14. (y) Lord Kaims, I. 331. (14) See 2 R. S. 297, § 29, &c. (15) And see further as to for what causes the court will grant this information, 1 Chit. C. L. 2 ed. 849 to 856. The court will always (z) See Book III. page 162. (a) 2 Hawk. P. C. 260. Take into consideration the whole of the circumstances of the charge before they lend their sanction to this extraordinary mode of prosecution. They will observe the time of thus, or by the attorney-general ex officio, it must be tried by a petit jury of the county where the offence arises: after which, if the defendant be found guilty, the court must be resorted to for his punishment. There can be no doubt but that this mode of prosecution by information (or suggestion), filed on record by the king's attorney-general, or by his coroner or master of the crown-office in the court of king's bench, is as ancient as the common law itself (b). For as the king was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever the grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal suit : so, when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, either personally against the king or his goverment, or against the public peace and good order, they were at liberty, without waiting for any farther intelligence, to convey that information to the court of [310] king's bench by a suggestion on record, and to carry on the prosecution in his majesty's name. But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only for, whenever any capital offence is charged, the same law requires that the accusation be warranted by the oath of twelve men, before the party shall be put to answer it. And, as to those offences, in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment. But when the statute 3 Hen. VII. c. 1. had extended the jurisdiction of the court of star-chamber, the members of which were the sole judges of the law, the fact, and the penalty; and when the statute 11 Hen. VII. c. 3. had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assises or before the justices of the peace, who were to ⚫ hear and determine the same according to their own discretion; then it was, that the legal and orderly jurisdiction of the court of king's bench fell into disuse and oblivion, and Empson and Dudley, (the wicked instruments of king Henry VII.) by hunting out obsolete penalties, and this tyrannical (b) 1 Show. 118. making the application, and whether a long interval has elapsed since the injury, and to what cause it may be fairly ascribed; also the evidence on which the charge is founded, and weigh the probabilities which it seems to offer: they will also examine the character and motives of the applicant, at least his share in the matter before them; and they will look forward to the consequences of the measure they are requested to grant, in the peculiar situation of the defendant. 1 Bla. Rep. 542. In applications of this nature for libels, the applicant must, unless the charge be general, shew his innocence of the matter imputed to him. See Dougl. 284. 387, 588. 1 Burr. 402. 6 T. R. 294. 4 id. 285. 5 B. & A. 595. 1 D. & R. 197. 2 Chit. Rep. 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. & A. 432. (16) If an information, or an indictment for a misdemeanor removed into the court of king's bench by certiorari, be not of such importance as to be tried at the bar of the court, it is sent down by writ of nisi prius into the county where the crime is charged to have been committed, and is there tried by a common or special jury, like a record in a civil action; and if the defendant is found guilty, he must afterwards receive judgment from the king's bench. But where an indictment for treason or felony is removed by certiorari, the law upon the subject will be found fully stated by lord Hale in 2 P. C. 41. If the treason of felony is to be tried at nisi prius under the 14 Hen. VI. c. I., then the court sends a transcript of the record, and not the record itself. 2 Hal. P. C. 3. 4 Co. 74. |