turned of the body of the county generally, and not de vicineto, as formerly, it is no longer necessary to state the parish or place, &c.; it will be sufficient to state the county. See 1 Arch. P. A. 181, n. But if the offence be local, the indictment must still show the locality with sufficient certainty; as for instance, an indictment against a parish for not repairing a highway, must state it to be within the parish, and it must be proved to be so. In burglary, housebreaking, stealing in a dwelling house and the like, the indictment must state the parish, by way of local description. In all other cases, however, even if the parish be stated as special venue, it is not necessary it should be proved as laid; proof that the fact occurred at any other place within the county, will sufficiently support the statement. 2 Hawk. c. 25, s. 84.

It must be positive.] The charge must be laid positively, and not inferentially or by way of recital merely. 2 Hawk. c. 25, s. 60. Therefore a material fact laid in an indictment after a 'whereas," would render the indictment bad. Id. So, the want of a direct allegation of any thing material in the description of the substance, nature, or manner of the offence, cannot be supplied by any intendment or implication whatsoever; and therefore, in an indictment for murder, the omission of the words "ex malitia præcogitata," is not supplied by the words "felonice murdravit," although the latter words imply them. Id. And the like in other cases.

:

It must be certain.] It has been already mentioned (ante, p. 7,) that the indictment must state all the facts and circumstances, comprised in the definition of the offence, by the rule of the common law or statute on which the indictment is founded. And these must be stated with sufficient certainty, otherwise the indictment will be bad. See R. v. Rowed et al., 3 Ad. & El. N. C. 180. The principal rule as to the certainty required in an indictment, may, I think, be correctly laid down thus that where the definition of an offence, whether by a rule of the common law or a statute, includes generic terms (as it necessarily must), it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species. Therefore an indictment for stealing "bona et catalla" of J. S., without further describing them, by stating what goods or chattels were intended, would be bad. 2 Hawk. c. 25, s. 74. R. v. Powell, 1 Str. 8. So, where a prisoner was convicted of stealing pounds in monies numbered," the judges held the conviction to be wrong, because the indictment did not specify the species of coin stolen. R. v. Fry, R. & Ry. 482. So it has been holden bad, to charge a man with speaking "divers false and scandalous words" of the mayor of a town, without setting

ten

out the words. 2 Hawk. c. 25, s. 59. So, where an indictment, at the instance of a justice of the peace, charged a defendant that "per diversa scandalosa, minacia et contemptuosa verba abusus fuit, et ipsum in executione officii sui prædicti vi et armis illicite retardavit," and it was demurred to as being too general; on the part of the prosecutor it was admitted that the indictment was bad as to the words, but it was argued that it was sufficiently certain as to the obstruction: the court, however, held it bad as to that also, for it was not sufficient to say generally "retardavit," but the act done should be specially set out. R. v. How, 2 Str. 699. So, where a defendant was convicted on an indictment charging him with having obtained a certain promissory note by false tokens, the court upon motion arrested the judgment, because the false tokens were not specified in the indictment. R. v. Munoz, 2 Str. 1127. So, an indictment against a constable, charging that "male et negligenter se gessit" in the execution of his office, was quashed by the court of King's Bench upon motion, as being too general. R. v. Winteringham, 1 Str. 2; see also R. v. Robe, 2 Str. 999. So, an indictment charging a man with being a common defamer, vexer and oppressor; or a common disturber of the peace; or a common deceiver of the king's people, or the like: would be bad. 2 Hawk. c. 25, s. 59. 2 Hal. 182; see R. v. Brian et el., 1 Ad. & E. 436, n. The only exceptions to this rule are, in the cases of common barrators, and common scolds, in which the particular acts of barratary or scolding need not be stated. 2 Hawk. c. 25, s. 59. And by stat. 7 G. 4, c. 64, s. 21, where the offence charged has been created by any statute, or subjected to a greater degree of punishment by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.

In the time laid to each material fact, also, uncertainty will be as fatal as in the statement of the facts themselves: and therefore an indictment, charging the owner of a ferry with extorting several sums of money from several persons, between such a day and such a day, was holden void. 2 Hawk. c. 25,

s. 82.

Besides uncertainty arising from too great generality of statement, an indictment may be uncertain in other respects, and therefore bad. As for instance, where an indictment charged a miller, in the same count, with having received two separate parcels of barley, of four bushels each, to be ground at his mill, and that he delivered three bushels of oat and barley meal, other and different from the produce of the said four bushels the indictment was holden bad for uncertainty, as not showing as to which of the parcels of barley the offence was committed. R. v. Haynes, 4 M. & S. 214.

A charge also in the alternative, charging a defendant with having done so or so, as that he murdered or caused to be murdered, is bad for uncertainty. 2 Hawk. c. 25, s. 58.

It must not be repugnant.] One material part of an indictment must not be repugnant to another, otherwise the indictment will be void. 2 Hawk. c, 25, s. 62. Therefore if an indictment charge a man with forging an instrument by which A was bound to B., it is bad, for A. could not be bound by the instrument if it were forged. Id. So, if an indictment for forcible entry charge that A. disseised B., and it appear on the face of the indictment that B. was not seised in fee: it is bad. Id. So, an indictment for selling iron by false weights and measures, has been holden bad for repugnancy, for it was absurd to say that it could be sold both by weight and by measure at the same time. Id. 2 R. Abr. 18.

Technical words.] In some cases, certain technical words are required, such as "ravish" in indictments for rape, 2 Hawk. c. 25, s. 110, “murder" and "of his malice aforethought" in indictments for murder, 2 Hawk. c. 25, s. 60, "burglariously❞ in an indictment for burglary, "feloniously" in an indictment for felony, 2 Hal. 184, and the like: in these cases, no other words, nor any periphrasis whatever, would be deemed equivalent to them; and an indictment omitting them would be bad. So, in indictments upon statutes, where the definition of the offence contained in them, includes such adverbs as "unlawfully" "wilfully," "maliciously," or the like, the offence must be charged to have been committed "unlawfully," "wilfully," "maliciously," &c., accordingly; otherwise the indictment would be bad. The word "unlawfully," is not essentially necessary in indictments at common law, 2 Hawk. c. 25, s, 96, although very generally used. The words 'with force and arms" were formerly necessary, and are now generally used, in all indictments for offences with force; but they have been rendered unnecessary, by stat. 37 H. 8, c. 8. See 2 Hawk. c. 25, s. 90, 91. And by stat. 7 Geo. 4, c. 64, s. 20, no judgment on any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed, for the omission of the words "as appears by the record," or of the words "with force and arms."

Conclusion.] The conclusion of an indictment at common law is, "Against the peace of our Lady the Queen, her crown and dignity." In misdemeanors, to the person or property of an individual, it is very usual to conclude, "To the great damage of the said J. S., to the evil example of all others in the like case offending, and against the peace of our Lady the

Queen, her crown and dignity;" but the above words in italics are unnecessary. The conclusion of indictments for offences against statutes, is, Against the form of the statute [or 'statutes'] in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity." If the offence be committed in the reign of one King, and the offender be indicted in the reign of his successor, the indictment should conclude, against the peace of the late King; R. v. Lookup, 3 Burr. 1901. R. v. Smith, 2 Moody & R. 109; or if commenced in the reign of one King, and continued into the reign of another, it seems that a conclusion against the peace of both Kings would be good. 2 Hawk. c. 29, s. 93. But if an indictment for an offence committed in the present reign, conclude against the peace of the late King, the word "late" may be rejected as surplusage. R. v. Scott, R. & Ry. 415. Since the many alterations in the crown law, introduced in the late and present reigns, it often is a matter of some doubt whether indictments for offences, formerly punishable at common law, and now by statute, should conclude as at common law, or contra formam statuti. But as it has been holden that a conclusion contra formam statuti, to an indictment for an offence at common law, does not affect the validity of the indictment, R. v. Matthews, 5 T. R. 162, the judges have intimated to the clerks of the indictments, on the different circuits, that it may be advisable to conclude their indictments, generally, as for offences against a statute. This is prudent and safe pleading, where a doubt exists as to its necessity; but where there is no doubt, and the offence is defined and punishable at common law only, a conclusion contra formam statuti would appear slovenly pleading. Formerly, concluding as at common law, instead of contra formam statuti, 2 Hawk. c. 25, s. 116, or concluding contra formam statutorum for statuti, or statuti for statutorum, Id. s.117, or omitting the contra pacem, Id. s. 92, was bad even in arrest of judgment, R. v. Thomas Cook, R. & Ry. 176, or upon writ of error. But now, by stat. 7 G. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed 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. And where an indictment preferred in the reign of William IV., for an offence committed in the reign of George IV., concluded against the peace of our lord the King, &c., the judges held the defect to be cured by this statute; R. v. Chalmers, Ry. & M. 352; on the principle, no doubt, that a bad conclusion was the same as none. But the omission of "against the form of the statute" in an indictment for a statutable of

fence is still a good objection in arrest of judgment, and not cured by the above statute. R. v. Radcliffe, 2 Moody, C. C. 68.

Joinder of offences.] There is no objection to stating the same offence, in different ways, in as many different counts of the indictment as you may think necessary, even although the judgment be different, R. v. Galloway, Ry. & M. 234. R. v. Strange, 8 Car. & P. 172. R. v. Austin, 7 Id. 796. R. v. Hartall, 7 Id. 475. See R. v. Powell, 2 B. & Adolph. 75, provided all the counts be for felonies, or all for misdemeanors. And even

if different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment in point of law upon this ground. In the case of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies, and confine himself to that; but this practice has never been extended to misdemeanors. Per Ld. Ellenborough, C. J., Young v. Rex in error, 3 T. R. 98. The clerks of the indictments on the different circuits, however, have directions not to charge the same party with larceny and receiving the same goods, in the same indictment. See R. v. Galloway, Ry. & M. 234. R. v. Madden, Id. 277. And the judges have, upon more than one occasion, censured the practice of sending two bills before the grand jury, at the same time, against the same person, the one for stealing and the other for receiving the same goods. See R. v. John Smith, 3 Car. & P. 412. R. v. Doran, 1 Leach, 538. But charging the defendant with being accessory before the fact, and in another count, with being accessory after the fact, to the same felony, is unobjectionable. R. v. Blackson, 8 Car. & P. 43.

Where in one count of an indictment on stat. 37 G. 3, c. 70, the defendant was charged with endeavouring to incite a soldier "to commit an act of mutiny, and to commit traitorous and mutinous practices," it was objected in arrest of judgment, that the count was bad, as charging two offences; but the judges seemed to think it good, for there might be only one endeavour to incite to the two offences; the point, however, was not decided, as there were other counts which were unobjectionable. R. v. Fuller, 1 Bos. & P. 180. There is no objection, however, to charging a defendant, in one count, with assaulting two persons, where the whole forms one transaction. See R. v. Benfield and Saunders, 2 Burr. 984, per Ld. Mansfield, C. J.

Joinder of defendants.] If several be engaged in the commission of the same offence, they may be joined in the same indictment; or each may be indicted separately. 2 Hawk. c. 25, s. 89. See R. v. Kingston, 8 East, 41. R. v. Benfield,