Page images
PDF
EPUB

§ 298. If twelve grand jurors do not concur in finding an indictment, the depositions, (and statement, if any,) transmitted to them, shall be returned to the court, with an endorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

[ocr errors]

§ 299. The dismissal of the charge shall not, however, prevent the same charge from being again submitted to a grand jury, as often as the court shall so direct. But without such direction, it shall not be again submitted.

§ 300. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, as provided in section 272, shall, in all cases, be inserted at the foot of the indictment, or endorsed thereon, before it is presented to the court.

§ 301. An indictment, when found by the grand jury, as prescribed in section 297, shall be presented by their foreman, in their presence, to the court, and shall be filed with the clerk, and remain in his office as a public record.

CHAPTER II.

Form of the indictment.

§ 302. All the forms of pleading in criminal actions, heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency [FOURTH REP.]

6

of pleadings is to be determined, shall be those which are prescribed by this code.

§ 303. The first pleading on the part of the people, is the indictment.

§ 304. The indictment shall contain,

1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties:

2. A statement of the acts constituting the offence, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.

§ 305. It may be substantially in the following form: "Court of sessions of the county of Albany, [or mayor's court of the city of Rochester, or recorder's court of the city of Oswego, as the case may be.]

"The people of the state of New-York,

against
A. B.

"A. B. is accused by the grand jury of the county of Albany, [or as the case may be,] by this indictment, of the crime of [giving its legal appellation, such as murder, arson, manslaughter, or the like, or designating it as a felony or misdemeanor, committed as follows:

"The said A. B., on the

day of , 1849, at the town for city or village, as the case may be,] of within this county," [stating the act or omission constituting

[ocr errors]

the offence, in the manner prescribed in this chapter, according to the forms mentioned in the next section, where they are applicable.]

§ 306. The forms of indictments, set forth in the appendix to this code, shall be sufficient in all cases where they are applicable. In other cases, forms may be used, as nearly similar as the nature of the case will permit.

307. The indictment must be direct and certain, as it regards,

1. The party charged:

2. The offence charged:

3. The particular circumstances of the offence charged, when they are necessary to constitute a complete offence.

§ 308. When a defendant is indicted by a fictitious or erroneous name, and, in any stage of the proceedings, his true name is discovered, it shall be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment.

§ 309. The indictment shall charge but one offence, and in one form only: except that where the offence may be committed by the use of different means, the indictment may allege the means in the alternative.

$310. The precise time at which the offence was committed, need not be stated in the indictment; but it may

[ocr errors]

be alleged to have been committed at any time before the finding of the same, except where the time is a material ingredient in the offence.

§ 311. When an offence involves the commission of, or an attempt to commit private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, shall not be deemed material.

§ 312. The words used in an indictment shall be construed in their usual acceptation in common language, except such words and phrases as are defined by law, which are to be construed according to their legal meaning.

§ 313. Words used in a statute to define a public of fence, need not be strictly pursued in the indictment; but other words, conveying the same meaning, may be used.

§ 314. The indictment shall be sufficient, if it can be understood therefrom.

1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately set forth;

2. That it was found by a grand jury of the county in which the court was held;

3. That the defendant is named, or if his name cannot be discovered, that he be described by a fictitious

name, with the statement that he has refused to discover his real name;

4. That the offence was committed at some place within the jurisdiction of the court; except where, as provided by sections 121 to 130, both inclusive, the act though done without the local jurisdiction of the county, is triable therein;

5. That the offence was committed at some time prior to the time of finding the indictment;

6. That the act or omission, charged as the offence, is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;

7. That the act or omission, charged as the offence, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction, according to the right of the case.

§ 316. No indictment shall be deemed insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection im matters of form, which shall not tend to the prejudice of the defendant.

§ 315. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.

« PreviousContinue »