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 and 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 accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as particularly, where treason is committed out of the realm, it 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. c. VIII, 23, 35 Hen. VIII, c. 2, and 5 and 6 Edw. VI, c. 11. And counterfeiters, washers or minishers *of the current coin, together with all manner of felons and

[*304 ] their accessories, may by statute 26 Hen. VIII, c. 6 (confirmed and explained by 34 and 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 gaoldelivery 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 Hereford 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 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 and 11 Wm. 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 committed in Wales. (2) Felonies committed out of the realm, in burning or destroying the king's ships, *magazines or [*305] 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 information or indictment 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. (0) 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

(h) Stra. 533. 3 Mod. 134.

(i) See Hardr. 66.

(k) Ely's Case, at the Old Bailey, Dec. 1720. Roache's Case, Dec. 1775.

(1) So held by all the judges, H. ́11 George 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. (0) 1 Hal. P. c. 507. (p) Stat 13 Geo. III, c. 31.

of the original taking, and is therefore larceny 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 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. (g) (5)

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, "ignoramus;" 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 answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then *indorse upon it, "a true bill;" ." [*306] 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 an 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. (7) And the indictment, when so found, is publicly delivered into court.

Indictments must have a precise and sufficient certainty. (6) By statute

(q) Stat. 25 Hen. VIII, c. 3. 3 W. and M. c. 9.

(r) 2 Hal. P. C. 161,

(5) Formerly it was necessary to state the venue in the body of the indictment, but it is not so now. See statute 14 and 15 Vic. c. 100, § 23. And as the court by the same statute has power to allow an amendment in the statement of the venue, an objection on this score does not often become available, unless the indictment on its face, or the evidence given on the trial, shows that the court had no jurisdiction. And if the record on its face shows the court to have no jurisdiction, a conviction cannot be sustained without amendment, notwithstanding the court had jurisdiction in fact. Reg. v. Mitchell, 2 Q. B. 636.

(6) [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 id. 754; 2 B. and A. 205. And an indictment for endeavoring 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. and 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 receved 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. 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. and 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 inust 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. 2d 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

1 Hen. V, c. 5, all indictments must set forth the christian name, surname, 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, 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 a part of the description of the fact. (s) But sometimes the time may be very material, where there is any limitation in point of time assigned for the prosecution of offenders: as by the statute 7 Wm. III, c. 3, which enacts, that no prosecution shall be had for any of the treasons or misprisons 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 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 appropriated by the law to express the precise idea which it entertains of the *offence, [ *307 ] 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 suce 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, "burglari(u) See book III, page 321.

(8) 2 Hawk. P. C. 435.

(t) Fost. 249.

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. 2d ed. 332, 238, &c.

Presumptions of law need not be stated: 4 M. and S. 105; 2 Wils. 147; neither need facts of which the court will ex officio take notice. See ante, book 3, 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. and 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, might render it legal, for these must be shown by the 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 shown 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. East, 52, 53; 1 T. R. 316; Čald. 554. Where an evil intent accompanying an act is necessary to constitute such act a crim the intent must be alleged in the indictment, and proved. 2 Stark. 245; R. and R. C. C. 317; ↑ Hale, 561; 2 East, P. C. 514, 515; 2R. and R.C.C.317. Indictments must be in English. 4 Gea II, c. 6; 6 Geo. II, c. 6. But if any document in a foreign language, as a libel, be necessarily ntroduced, it should be set out in the original tongue, and then translated, showing it 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 act, 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 urged inust be given in the indictment. 2 Hale, 170, 146.

If the name of a prisoner is unknown, and he refuses to disclose it, an indictment against him as a person whose name is to the jurors unknown, but who is personally brought before the jurors by the keeper of the prison, will be sufficient. Rex v. R. and R. C. C. 489. But au indictment against him as a person to the jurors unknown, without something to ascertain whom the grand jury meant to designate, is insufficient. Id.]

ously:" 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; in homicides of all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand. (7) 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, arraigned, and tried, without indictment: as by the *Danish law he might be taken and hanged upon the spot, without accusation or trial. (w) But this proceeding was taken [*308] away by several statutes in the reign of Edward the Third: (a) though in Scotland a similar process remains to this day. (y) So that the only species of pro-ceeding 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 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 (w) Stiernh. de jure Sueon. l. 3. c. 5. (x) 2 Hal. P. C. 149.

(v) 5 Rep. 122.

(y) Lord Kaims, I, 331. (z) See book III, page 162.

Some important changes have been made in the law relative to indictments by recent statutes. By statute 14 and 15 Vic. c. 100, s. 24, no indictment is to be held insufficient for omitting to state the time at which the offence was committed when time is not of the essence of the offence, nor by stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the pending of the indictment, or on an impossible day, or on a day that never happened. By section 9, a person on trial for an offence, if it shall appear that he did not complete it, may be convicted of an attempt to commit the same. By 24 and 25 Vic. c. 96, s. 85, a person on trial for robbery may be acquitted on the main charge and convicted of an assault with intent to rob. By section 72 there may be a conviction for larceny on an indictment for embezzlement. By section 88 a person indicted for false pretences may be convicted of larceny. By 9 Geo. IV, c. 31, s. 14, a woman indicted for the murder of her infant child may be convicted of endeavoring to conceal its birth. And by 24 and 25 Vic. c. 94, an accessory before the fact to any felony may be indicted in all respects as if he were the principal felon. And by statutes 24 and 25 Vic. c. 100, in an indictment for felonious homicide it is not necessary to set forth the manner in which, or the means by which, the death was caused. Indictments in other cases have been very much simplified.

(7) Very broad powers to amend indictments are conferred upon the courts by 14 and 15 Vic. c. 100. As to amendment of the record after judgment, see Gregory v. Reg., 15 Q. B. 957; Bowers v. Nixon, 12 id. 546.

VOL. II.-62.

489

such prosecution be had after the expiration of two years from the commission of the offence. (8)

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[*309] general, are properly such *enormous 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 peculiarly tending to disturb the government (for those are left with the care of the attorney general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion. (9) And when an information is filed, either thus, or by the attorneygeneral 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 porsonally against the king or his government, 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 king's bench by a *suggestion on record, and [*310] 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, wherever any capital offence is charged, the same law

(8) The time, unless otherwise expressly provided by statute relating to the particular case, is limited in the case of offences punishable on summary conviction, to six calendar months. 11 and 12 Vic. c. 43, s. 36.

(9) [The court will always 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 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 probabilites 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, show 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. and A. 595; 1 D. and R. 197; 2 Chit. Rep. 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. and A. 432.]