or summons.

says, "that no objection shall be taken or allowed to any in- No objection to "formation, complaint or summons, for any alleged defect be taken to it "therein in substance or in form, or for any variance between "such information, complaint or summons, and the evidence "adduced on the part of the informant or complainant at the "hearing of such information or complaint as hereinafter men"tioned; but if any such variance shall appear to the justice On variances "or justices present and acting at such hearing to be such, bearing to be adjourned. "that the party so summoned and appearing has been thereby "deceived or misled, it shall be lawful for such justice or "justices, upon such terms as he or they shall think fit, to "adjourn the hearing of the case to some future day;" and the 3rd section makes the same provision as to the warrant to apprehend; and by the 9th section, " any variance between such "information and the evidence adduced in support thereof, as

"to the time at which such offence or act shall be alleged to Time of offence. "have been committed, shall not be deemed material, if it be "proved that such information was in fact laid within the time "limited by law for laying the same; and any variance between "such information and the evidence adduced in support thereof

"as to the parish or township in which the offence or act shall Place of offence. "be alleged to have been committed, shall not be deemed mate"rial, provided that the offence or act be proved to have been "committed within the jurisdiction of the justice or justices by "whom such information shall be heard and determined; and "if any such variance, or any variance in any other respect "between such information and the evidence adduced in sup"port thereof, shall appear to the justice or justices present and "acting at the hearing to be such that the party charged by "such information has been thereby deceived or misled, it shall "be lawful for such justice or justices, upon such terms as he or "they shall think fit, to adjourn the hearing of the case to some "future day," and in the meantime to commit the defendant or bail him. The result of the above enactments seems to be to entirely supersede the use of the information, summons or warrant as substantial parts of the proceedings, beyond the fact of their still being required by way of authority for the justice's interference; but that the conviction entirely depends upon the case proved by the evidence, which neither recites nor even alludes to the information, summons or warrant, as in the repealed form given by the 3 Geo. 4, c. 23 (see 12 J. P. 734; 13 J. P. 752). Although the strictness, which was formerly re- Must not be so

drawn as to mislead defendant.

quired in informations, will no longer be necessary, they must not, however, be so drawn as to deceive or mislead the defendant, by varying from the charge in the evidence, and so varying the nature of the case altogether (p); for in that case the justice being empowered to adjourn the hearing of the case to some future day, upon such terms as he shall think fit, seems to be enabled to enforce upon parties preferring charges the necessity of drawing their informations in a legal form. The cases and rules therefore, which were decided upon informations and convictions before the passing of the 11 & 12 Vict. c. 43, may still be found serviceable as a guide in framing them at the present time, and will be also serviceable in drawing up convictions, as the above provisions only apply to the information or complaint, summons and warrant, more particularly as Matter of com- to the mode of describing the offence or matter of complaint, plaint. which, if correctly stated in the information or complaint to ground the justice's jurisdiction, and thence recited or stated in the conviction and subsequent proceedings, would save much trouble and inconvenience in the preparation of the latter. We now propose to show the common requisites of an information.

Requisites of the information.

One justice to

receive.

Complainant

names, &c.

By s. 29 of the 11 & 12 Vict. c. 43, in all cases of summary proceedings before a justice or justices of the peace out of sessions upon any information or complaint, it shall be lawful for one justice to receive such information or complaint, and to grant a summons or warrant thereon.

It should contain the informer or complainant's name, &c. and defendant's (R. v. Stone, 2 Ld. Raym. 1545), the date of preferring it (Ld. Raym. 1546), the place of preferring it (Bosc. 24), naine and style of the justice (R. v. Johnson, 1 Str. 261; R. v. Dobbin, 2 Salk. 473; R. v. Chipp, 1 Str. 711), and the offender's name, &c. (R. v. Harrison, 8 T. R. 508; see Paley, 81, 82).

Description of defendant sufficient in certain

cases.

Under the 3 Geo. 4, c. 126, s. 132 (the General Turnpike

(p) Mr. Saunders, in his edition of Jervis's Acts, after remarking upon the absence of any power to amend the information, complaint or summons,—that there would be a perpetual variance between the charge laid and the offence proved, and that a man might be summoned for one offence and convicted of another, points out this further difficulty: by the 14th section, on the dismissal of the information er complaint, the justice may give the defendant a certificate of the fact, which is to operate as a bar to any subsequent information or complaint for the same matters against the same party; but if the complaint is different to the charge given in evidence, of what use will be the certificate? It will in such a case require evidence to show what was in fact the charge upon which the certificate is intended to operate.

to summary convictions.

Act), and the 5 & 6 Will. 4, c. 50, s. 78 (the General Highway Act), certain parties may be proceeded against without describing their names, if they refuse to disclose them, and in which case a description of their person would be sufficient. If the statutes under which the proceedings are taken extend only to persons of a particular class, office or situation of life, the defendant should be shown to come within the description of such persons, bearing in mind the broad rule for construing statutes as laid down by Lord Tenterden, that " where general "words follow particular ones, the rule is to construe them as "applicable to person ejusdem generis" (Sandiman v. Breach, 7 B. & C. 100). By the 3rd section of 11 & 12 Vict. c. 43, the defendant may be named "or otherwise described" in the warrant to the constable to apprehend. Married women, if Persons liable they have committed an offence without the coercion, actual or implied, of their husbands, are equally liable to be proceeded against as other persons (Rex v. Crofts, 2 Str. 1120; Rex v. Hammond, 2 Leach, 499; Rex v. Williams, 10 Mod. 335; Reg. v. Cruse, 8 C. & P. 541; 2 Mod. C. C. 53; Paley, 84). A husband and wife may also be jointly convicted, and pu- Husband and nished for every offence of which they have been jointly guilty. It has been doubted whether female offenders can be convicted Female ofof offences punishable on summary conviction, where the enacting or interpretation clauses do not include them, and especially under the Game Act (1 & 2 Will. 4, c. 32); but the 14th sect. of the 7 & 8 Geo. 4, c. 28, will remove that doubt, it being expressly applicable to offences punished summarily as well as to those indictable, and is both prospective and retrospective, and so likewise will the 13 & 14 Vict. c. 21, s. 4, which applies to all acts whatever their subject may be.

wife.

fenders liable in

all cases.

Infants above seven years of age may be prosecuted for Infants. penalties in respect of any injuries committed by them, and generally for all wrongful acts they may be guilty of; but it has been doubted whether a minor is competent to enter into a contract of service; but the prevailing opinion (and vide Reg. v. Lord, 17 Law J. Rep. (N. S.) M. C. 181; 12 J. P. 759) is strongly in favour of their power to do so, and consequently of the jurisdiction of justices in case of their misbehaviour, if the contract is not deficient in mutuality (Id.)

The prosecutor may prosecute all or any of the parties, and Joint offenders. the omission of a particeps criminis cannot, as in cases of joint

contracts in civil actions, be taken advantage of by those who

Several offenders.

Aiders and abettors in all

cases.

are prosecuted; after conviction, however, of some of several offenders for a joint offence, the parties omitted cannot be proceeded against. (See Stone's Manual, pp. 235, 236, 4th ed.; see 10 J. P. 444.) But it is otherwise as to offences which are in their nature several (16 J. P. 511; 4 Magis. 225).

It has been doubted, since the passing of the 11 & 12 Vict. c. 43, whether several offenders can be joined in the same information who have taken part in committing the same offence at the same time and place, whether the offence is in its nature joint or several (12 J. P. 671; 13 J. P. 63; 14 J. P. 422, 470; 15 J. P. 731; 16 J. P. 172); because the 10th section (infra, p. 57) requires that the information shall be for one offence only, and the forms in the schedule appear to contemplate only a single offender. The 10th section referred to was evidently designed to prevent the joinder of several offences in different counts (Arch. 2nd ed. 126), but the statute does not allude to the joinder of offenders; and as the forms given may be adopted or made "to the like effect" (s. 32), there seems no reason in such cases to depart from the rule which prevails in this respect in the case of indictments, of joining several persons in the same; for the defendant can take no objection to the information for any defect in substance or in form (ss. 1, 9, ante, p. 53). Mr. Archbold's opinion upon the 10th section is (p. 126), that where two or more are jointly charged with an offence, it is but one offence within the meaning of this section; but at 14 J. P. 470, it is contended that several offenders committing the same offence would be several offences (q), and therefore not allowed to be joined in the same information.

Before the stat. 11 & 12 Vict. c. 43, there were no accessories in offences punishable by summary conviction, unless the particular act extended to the offence of an accessory,—nor indeed in any criminal case below the degree of felony (see 1 Hale, 613; 12 Rep. 81; Evan's case, Fost. 73; 4 Bla. Com. 36),— all were principals or nothing; but now, by s. 5, "Every person "who shall aid, abet, counsel or procure the commission of any "offence, which is or hereafter shall be punishable on summary

(q) In a case submitted in August, 1852, to Mr. Archbold and Mr. Pashley (see 16 J. P. 510; 4 Magis. 225), they were both of this opinion, and moreover stated that the information should be against all persons jointly concerned in the offence, the same as indictments for misdemeanors, which are analogous to informations before magistrates, properly classed as misdemeanors, though not indictable. (See Arch. New Ciim. Proced. 96, 97).

66

"conviction, shall be liable to be proceeded against and con"victed for the same, either together with the principal offen"der, or before or after his conviction, and shall be liable on "conviction to the same forfeiture and punishment as such principal offender is or shall be by law liable, and may be proceeded against and convicted either in the county, riding, division, liberty, city, borough or place where such principal "offender may be convicted, or in that in which such offence "of aiding, abetting, counselling or procuring may have been "committed" (Vide forms No. 6 and 7, "Formulist," p. 26). If distinct and complete acts are committed on different days, the offences are distinct and subject to separate penalties (R. v. Matthews, 10 Mod. 27); but ambiguity arises upon a repetition of similar acts in pursuance of one object on the same day. With regard to cases of this description no general rule can be laid down, but the law in each case must be determined by the nature of the offence, and the manner in which the particular statute applicable to it is worded (Paley, 197). Killing several hares on the same day incurs only one forfeiture and is a single offence only, and so likewise exercising trade on the Sabbath day, although several sales had taken place (Marriott v. Shaw, Cowp. 278; R. v. Lovett, 7 T. R. 152; Cripps v. Durden, Cowp. 540).

Offences on the

same or different days.

offence.

By 11 & 12 Vict. c. 43, s. 10, " Every such information shall Stating the of "be for one offence only, and not for two or more offences;" fence only one which puts an end to the old practice of joining two or more counts in the information, and if it be desired to state the offence in different counts there must be separate informations, as also when the same offender commits offences against different statutes; but where one is charged as principal and another Accessory may be joined with as aiding, abetting, counselling or procuring him to commit the principal. offence, they may be jointly charged in the same information; for procurers, &c. in all offences less than felony are deemed in law principals, and the offence of the person who actually committed the act, and that of the person who counselled or procured him to do it, or aided him in doing it, may fairly be deemed but one offence (Arch. ed. 126).

The time of committing the offence should be stated (R. v. Time and place Pullen, 1 Salk. 369; 14 East, 272); but the precise day need of offence.

not be named if the offence be alleged to have been committed

between such a day and such a day, provided the first of the days be within the limited time for laying the information or