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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 statute 1 Hen. V. c. 5. all indictments must set forth the christian name, sirname,

(T) 2 Hal. P C. 161.

(10) The following general rules, as to the law entertains of the offence; see the instanform of the indictment, may be found useful. ces in the text. The offence must be positive. The indictment must state the facts of the ly charged, and not stated by way of recital, crime with as much certainty as the nature of so that the words "that whereas" prefixed, the case will admit. Cowp. 682.5 T. R. will render it invalid. 2 Stra. 900. n. 1. 2 611-623. Therefore, an indictment charging Lord Ray, 1363. Stating an offence in the the defendant with obtaining money by false disjunctive is bad. 2 Stra 901. 200. and see pretences, without stating what were the par. further, i Chit. C. L. 2 ed. 236. Repugnanticular pretences, is insufficient. 3 T. R. 581. cy, in a material matter, may be fatal to the The cases of indictment for being a common indictment. 5 East, 254. But though the scold or barrator, or for keeping a disorderly indictment must in all respects be certain, yet house, or for conspiracy, may be considered the introduction of averments altogether suas exceptions to the general rule. 2 T. R. perfiuous and immaterial will seldom preju. 586. I T. R. 754. 2 B. & A. 205. And an dice. For if the indictment can be support. indictment for endeavouring to incite a sol. ed without the words which are bad, they may dier to commit an act of mutiny, or a servant on arrest of judgment be rejected as surplus. to rob his master, without stating the particu- age. I T. R. 322. 1 Leach, 474. 3 Stark. lar means adopted, may also be considered as 26; and see further as to repugnancy and an exception. . I B. & P. 180.

surplusage, 1 Chit. C. L. 2. ed. 332. 238. The indictment ought to be certain to every &c. intent, and without any intendment to the Presumptions of law need not be stated, 4 contrary. Cro. Eliz. 496. Cro. Jac. 20. But M. & S. 105. 2 Wils. 147 ; neither need facts this strictness does not so far prevail, as to of which the court will ex officio take notice. render an indictment invalid in consequence See ante, 3 book, 293. note (1). It is not neof the omission of a letter, which does not cessary to state a conclusion of law resulting change the word into another of different sig. from the facts of a case, it suffices to state the nification, as underlood for understood, and re- facts and leave the court to draw the inference. cevd for received, 1 Leach, 134. 145; and if the 2 Leach, 941. Neither is it necessary to state sense be clear, nice objections ought not to be mere matter of evidence, which the prosecutor regarded, 5 East, 259; and in stating mere proposes to adduce, unless it alters the ofmatter of inducement, not so much certainty sence; for it so, it would make the indietis required as in stating the offence itself. í ment as long as the evidence. I Sira. 139. Ventr. 170. Com. Dig. Indictment, G. The 140. Forst. 194. 2 B. & A. 205. In genecharge must be sufficiently explicit to support ral, all matters of defence must come from the itsell; for no latitude of intention can be al. defendant, and need not be anticipated or statlowed to include any thing more than is ex- ed by the prosecutor. 5 T. R. 84. 2 Leach, pressed. 2 Burr. 1127. 2 M. & S. 381. And 580. 2 East, 19. And it is never necessary every crime must appear on the face of the re. to negative all the exceptions which, by some cord with a scrupulous certainty, Cald. 187, other statute than that which creates the of. so that it may be undersood by every one, al. fence, might render it legal, for these must be leging all the requisites that constitute the of- shewn by defendant for his own justification. fence; and that every averment must be so 2 Burr. 1036. 1 Bla. Rep. 230. Facts which stated, that the party accused may know the lie more particularly within the defendant's general nature of the crime of which he is ac. than the prosecutor's knowledge, need not be cused, and who the accusers are, whom he shewn with more than a certainty to a comwill be called upon to answer.

1 T. R. 69; mon intent. 5 T. R. 607. Hawk. b. 2. c. 25. and as a branch of this rule it is to be observ. s. 112. If notice be necessary to raise the ed, that in describing some 'crimes, technical duty which the defendant alleged to have phrases and expressions are required to be broken, it should be averred; but where used, to express the precise idea which the knowledge must be presumed, and the event

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

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lies alike in the knowledge of all men, it is dict or outlawry, or by confession, default, or never necessary either to state or prove it. 5 otherwise, shall be stayed or reversed for want T. R. 621. If a request or demand is necessa- of the averment of any matter unnecessary ry to complete the offence, it must be stated to be proved ; nor for the omission of the in the indictment. 8 East, 52, 3. 1 T. R. words, as appears by the record,' or, ' with 316. Cald. 554. Where an evil intent accom. force and arms, or, against the peace;' nor panying an act is necessary to constitute such for the insertion of the words,' against the act a crime, the intent must be alleged in the form of the statute,' instead of, ' against the indictment and proved. 2 Stark. 245. R. & form of the statutes,' or vice versa ; nor for R. C. C. 365. 1 Hale, 561. 2 East, P. C. that any person or persons mentioned in the 514, 5. 2 R. & R. C. C. 317. Indictments indictment or information, is or are designatmust be in English. 4 Geo. II. c. 26. 6 Geo. ed by a name of office, or other descriptive apII. c. 6. But if any document in a foreign pellation, instead of his, her, or their proper language, as a libel, be necessarily introduc. name or names ; nor for omitting to state the ed, it should be set out in the original tongue, time at which the offence was committed, in and then translated, shewing its applications, 6 any case where time is not the essence of T.R. 162. 7 Moore, 1 ; but it has been said the offence; nor for stating the time imper. to be both needless and dangerous to trans. fectly ; not for stating the offence to have been late it. i Saund. 242. n. 1. By the same acts, committed on a day subsequent to the finding statutes 4 Geo. II. c. 26. and 6 Geo. II. c. 14. of the indictment or exhibiting the informaall indictments must be in words at length, and tion, or on an impossible day, or on a day that therefore no abbreviations can be admitted. 2 never happened; nor for want of a proper or Hale, 170, n. g. Nor can any figures be al. perfect venue, where the court shall appear by lowed in indictments, but all numbers must be the indictment or information to have had ju. expressed in words at length; but to this rule risdiction over the offence.” The objections there is an exception, in case of forgery, and enumerated in this clause are no longer avail. threatening letters, when a fac simile of the in- able, either in arrest of judgment, or by writ strument forged must be given in the indict. of error, because it enacts that judgment shall ment. 2 Hale, 170. 146.

not be stayed, which applies to motions in arAs to the insertion of several counts in an rest of judgment; or reversed, which applies to indictment, see ) Chit. C. L. 248 to 250 ; and writs of error. But, it seems, that any of as to when part of a count inay be found, id. these objections will still be available on de. 250 to 252. As to the joinder of several offen. murrer, where the prisoner prays judgment in ces, id. 253 to 256. As to variances, id. 2 ed. his favour, and if his demurrer is allowed, 293, 294. As to the amendment of indict- judgment is neither stayed nor reversed, but ments, id. 297 to 298; and when an indict. given in his favour. See further on this subment may be quashed, id. 299 to 304. As to ject, Car. Cr. L. 46, et seq., and the cases the power of a court of equity to stay indict- there cited. ment, id. 2 ed. 304. As to when an action as If the name of a prisoner is unknown, and well as an indictment may be brought, see he refuse to disclose it, an indictment against ante, 6.

person whose name is to the jurors (11) In New-York, these and other defects unknown, but who is personally brought be. of form not tending to the prejndice of the de- fore the jurors by the keeper of the prison, fendant, do not affect an indictment. (2 R. S. will be sufficient. Rex v. - R. and R. C. 728, 952.)

C. 489. But an indictment against him as a (12) Bý 7 Geo. IV. c. 64,9 20, “no judg- person to the jurors unknown, without somement upon any indictment or information, for thing to ascertain whom the grand jury meant any felony or misdemeanor, whether after ver- to designate, is insufficient. Id. ibid. VOL. II.


him as

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 lengih 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, wbich 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

(v) 5 Rep. 122.


(u) See Book III. page 321.

(13) There are some recent enactments, re- be laid in the commissioners, without naming specting indictments for larceny, which it them. By 7 and 8 Geo. IV. c. 29, 921, in inseems important to notice here. By 7 Geo. dictments for stealing records, &c., it is unIV. c. 64, $ 14,“ to remove the difficulty of necessary to allege either that the article is stating the names of all the owners of proper- the property of any person, or that it is of any ty in the case of partners and other joint own- value. I By ý 22 a similar provision is made ers,” the property of partners may be laid in respecting wills. By Ø 44, where the mateany one partner by name, and another, orrials therein enumerated are fixed in any others. By © 15. property belonging to coun. square, street, or other like place, it is undeties, &c., may be laid in the inhabitants, with cessary to allege them to be the property of out naming them. By Ø 16, property ordered any person. And by $ 46, in indictments for the use of the poor of parishes, &c. may against tenants and lodgers for stealing probe laid in the overseers, without naming thein; perty from houses or apartments let to them, and materials, &c., for repairing highways, ihe property may be laid either in the owner may be laid to be the property of the survey. or person letting to hire. For the cases bearor, without naming him. By $ 17, property ing upon this subject, see Car. Ct. L. 25, et of turnpike trustees may be laid in ihe trus. seq. ; Col. Crim. Siat. 329 : and see a full and tees, without naring them. And by $ 18, able summary of the law of larceny, id. 325 property under commissioners of sewers may 343. + See 2 R. S. 727, Ø 40.

12 R. S. 680, 969.


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 (2), 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 forseiture 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 (to) Stiernh. de jure Sueon. I. 3, c. 5.

(2) See Book III. page 162. (y) Lord Kuims, I. 331. (14) See 2 R. S. 297, 0 29, &c.

Take into consideration the whole of the cir. (15) And see further as to for what causes cumstances of the charge before they lend the court will grant this information, i Chit. their sanction 10 this extraordinary mode of C.L.2 ed. 849 io 856. The court will always prosecution. They will observe the time of

(Z) 2 Hal. P. C. 14.

(a) 2 Hawk. P. C. 260.

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 (6). 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 kiny'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

(6) I Show. 118.

making the application, and whether a long complained of. 3 B. & A. 432. interval has elapsed since the injury, and to (16) If an information, or an indictment for what cause it may be fairly ascribed; also the a misdemeanor removed into the court of evidence on which the charge is founded, and king's bench by certiorari, be pot of such im. weigh the probabilities which it seems to offer: portance as to be tried at the bar of the court, they will also examine the character and mo- it is sent down by writ of nisi prius into the tives of the applicant, at least his share in the county where the crime is charged to have matter before them; and they will look for- been committed, and is there tried by a comward to the consequences of the measure they mon or special jury, like a record in a civil ac. are requested to grant, in the peculiar situa. tion; and if the defendant is found guilty, he tion of the defendant. 1 Bla. Rep. 542. In must afterwards receive judgment from the applications of this nature for libels, the appli- king's bench. But where an indictment for cant must, unless the charge be general, shew treason or felony is removed by certiorari, the his innocence of the matter imputed to him. law upon the subject will be found fully stated See Dougl. 284. 387, 588. I Burr. 402.6 T. by lord Hale in 2 P. C. 41. R. 294. 4 id. 285. 5 B. & A. 595. 1 D. & If the treason of felony is to be tried at nisi R. 197. 2 Chit. Rep. 163. In applications prius under the 14 Hen. VI. c. 1., then the against magistrates, the applicant must direct- court sends a transcript of the record, and not ly impute corrupt motives for the misconduct the record itself. 2 Hal. P. C. 3. 4 Co. 74.

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