day that never happened (e). The time is of importance in several crimes, as in murder, bigamy, and burglary, and in cases where the time within which the prosecution must be commenced is limited.

offence.

As to place. The nature of the crime in some cases Place of requires this to be stated otherwise the venue in the margin, that is the county or other division, is taken as the venue for all facts in the indictment (ƒ). The following are the most common cases in which a local description is required: burglary, housebreaking, stealing in a dwelling-house, sacrilege, nuisances to highways, &c.

facts, &c.

The facts, circumstances, and intent, which are the Description of ingredients of the offence, must be given with certainty, so that the defendant may be able to perceive what charge he has to meet, the court may know what sentence should be given, and that on future reference to the conviction or acquittal it may be known exactly what was the alleged offence (g). In indictments for Technical words, when certain crimes particular technical words must be used, to be used. namely, in murder, murdravit; in rape, rapuit; in larceny, felonicè cepit et asportavit. Again, as to the intent, treason must be laid to have been done "traitorously;" a felony, "feloniously;" burglary, " feloniously and burglariously; " murder, "feloniously and of his malice aforethought."

of defects.

If any essential ingredient of the offence is omitted, Consequences or not stated with sufficient certainty, the defendant may move to quash the indictment, or may demur, or, if the defect is not one which is cured by verdict (h), he may move in arrest of judgment, or bring a writ of All objections to formal defects must be taken

error.

(e) 14 & 15 Vict. c. 100, s. 24.

(f) Ibid. s. 23.

(g) Arch. 56.

(h) As to what defects are cured by verdict, see Heymann v. R., L. R. 8 Q. B. 102.

Amendment of defects.

before the jury are sworn; and they may then be amended by the court (i).

The law as to the amendment of defects in the indictment is now on a much more reasonable footing than it was at one time. Instead of requiring the evidence rigorously and servilely to correspond with the indictment as it stands when drawn up, extensive powers of amendment are given to the court. Whenever there is

a variance in certain points between the indictment and the evidence, it is lawful for the court before which the trial is had, if it considers that the variance is not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order the indictment to be amended on such terms as to postponing the trial, as the court thinks reasonable. The points mentioned in the statute are the following: (a) in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in such indictment; or (b) in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein; or (c) in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence; or (d) in the Christian name or surname, or both Christian name and surname, or other description whatsoever of any person or person whomsoever therein named or described; or (e) in the name or description of any matter or thing whatsoever therein named or described; or (f) in the ownership of any property named or described therein (k). But in no case will an amend

ment which alters the nature or quality of the offence be allowed (). The amendment must be made before verdict; and when it is once made there can be no amending the amendment, or reverting to the indictment in its original form.

(c.) The Conclusion.-The conclusion given in the The conclusion foregoing example of an indictment is that which ment.

occurs in an indictment for an offence at common law. An indictment for an offence created by statute concludes thus: "against the form of the statute in such case made and provided, and against the peace, &c." But an error in the form of the conclusion is not now material, inasmuch as it has been enacted that no indictment shall be held insufficient for the omission of the words "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 want of a proper or formal conclusion (m).

of the indict.

more than one inserted.

Counts. An indictment very frequently contains Counts, when more than one count or charge. The object of the insertion of more than one count is either to charge the defendant with different offences, or with a previous conviction; or to describe the single offence in other terms, so that proof of one description failing, he may be convicted under another. Thus, an indictment for wounding generally contains a count for doing grievous bodily harm. Again, an indictment for obtaining goods by false pretences must state the false pretence correctly; therefore, in order to prevent a failure of

(1) R. v. Wright, 2 F. & F. 320.

66

(m) 14 & 15 Vict. c. 100, s. 24. The same section also provides that no indictment shall be insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words as appears by the record," nor for that any person is designated by a name of office or other descriptive appellation, instead of his proper name; nor for want of, or imperfection in, the addition of any defendant; nor for the want of the statement of the value or price of any matter or thing, or of the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence.

Charging more

than one

same count.

justice in consequence of the false pretence not being properly stated, it is often necessary to insert different counts laying the pretence in different ways. The different counts are tacked on by the insertion of " and the jurors aforesaid, upon their oath aforesaid, do say that, &c."

As a rule more than one offence cannot be charged offence in the in the same count. This is commonly expressed by saying that a count must not be double, or is bad for duplicity. Thus one count cannot charge the prisoner with having committed a murder and a robbery. There

Charging dif

are two exceptions to the rule: An indictment for burglary usually charges the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended. And in indictments for embezzlement by clerks, or servants, or persons employed in the public service, or in the police, the prosecution may charge any number of distinct acts of embezzlement, not exceeding three, which may have been committed against the same master within six months inclusive (n). But even here it is usual to charge the different acts in different counts.

So much for charging different offences in one count. ferent offences It remains to be seen what are the rules as to charging a defendant with different offences in different counts of the same indictment ::

in different

counts,

in treason,

in felony.

In an indictment for treason, there may be different counts, each charging the defendant with different species of treason; for example, compassing the Queen's death, levying war, &c.

In an indictment for felony, there is no objection in point of law to charging several different felonies in

(n) 24 & 25 Vict. c. 96, s. 71; see also s. 5.

different counts, whether such felonies be of a different character or distinct cases of the same sort of felony; for example, whether they be a burglary and a murder, or two cases of murder. But in practice, as this course would embarrass the prisoner in his defence, it is not adopted, and it will be ground for quashing the indictment, though not for demurrer or arrest of judgment. If it is discovered, before the jury are charged, that it has been done, the judge may quash the indictment; if after, he may put the prosecutor to his election on which charge he will proceed. The same felony may, however, be charged in different ways in different counts; as if there is a doubt whether the goods stolen are the property of A. or of B., they may be stated in one count as the goods of A., in another as the goods of B. There are certain exceptions to the rule forbidding the charging of distinct felonies in different counts. In an indictment for feloniously stealing any property, it is expressly declared lawful to add a count or several counts for feloniously receiving the same property, knowing it to have been stolen, and vice versa; and the prosecutor is not put to any election, but the jury may find a verdict of guilty on either count, against all or any of the persons charged (o). Also, in an indictment for larceny, it is lawful to insert several counts against the same person for any number of distinct acts of stealing not exceeding three which may have been committed by him against the same person within the space of six calendar months from the first to the last of such acts, and to proceed thereon for all or any of them (p). We have already noticed a similar rule with regard to embezzlement (q).

If a count for a felony is joined with a count for a Joinder of a misdemeanor, the indictment will be held bad if de- felony and a

misdemeanor.

(0) 24 & 25 Vict. c. 96, s. 92.

(p) Ibid. s. 5.

(q) v. p. 353.