A presentment, in its limited sense, differs only from an Presentindictment, in being taken in the first instance by the grand ment. jury of some offence within their own knowledge, and into which it is their duty to inquire. After the presentment has been delivered into court by the grand inquest, an indictment is framed upon it by the officer of the court; for it is regarded merely as instructions for an indictment, to which the party accused must answer. When it is drawn up by jurors specially returned to inquire of that offence only it is called an inquisition. (1 Chit. Cr. Law, 163.)

An indictment is a written accusation of one or more Definition persons of a crime preferred to and presented upon oath by of indicta grand jury.

No part of the indictment should be in figures except where a fac simile of a written instrument is set out-in which case the instrument must be set out in the indictment in words and figures as in the original itself.

ment.

The caption of the indictment is no part of the indictment, Caption it is the style of the court where the indictment was pre- of.

PART IV. ferred

Venue in

margin of (a).

which is prefixed as a kind of preamble to the indictment upon the record when made up in form.

The following is the form of the caption to an indictment at quarter sessions :—

"Westmoreland.—At the general quarter sessions of the peace holden at Appleby, in and for the county aforesaid, the

in

day of the year of the reign of our Sovereign Lady Victoria, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith, before J. P. and K. P., esquires, and others their associates, justices of our said Lady the Queen, assigned to keep the peace of our said Lady the Queen in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, by the oath of good and lawful men of the county aforesaid, sworn and charged to inquire for our said Lady the Queen, and for the body of the county aforesaid, it is presented, that J. A.” (So continuing the indictment.)

With regard to the venue, which must be stated in the margin of the indictment:-At common law the venue was always laid in the county where the offence was committed— where the offence was commenced in one county and consummated in another the venue could be laid in neither and the offender went unpunished-but this was remedied by statutes. (1 Chit. Crim. Law, 177.) By various enactments, some of which of general application we will presently notice (b), there are many exceptions to the general rule. In some cases the jurisdiction of the court at which the bill of indictment is preferred extends only to part of a county, and in some cases, as is the case of the Central Criminal Court, the jurisdiction extends into several counties;-in these cases the venue

(a) The Criminal ode Commissioners, at p. 35 of their report, state: "With regard to the place of trial, the existing law is founded in the main on the theory of venue. The jury of the neighbourhood (viciniavisne-venue) inform the court of the crimes committed in their own district, and are not supposed to know what happens elsewhere. It is, however, qualified by numerous exceptions both by statute and by common law. At common law, the Court of Queen's Bench, in the case of an indictment originating in or removed into that court, possessed the power under certain circumstances to change the place of trial by a suggestion on the record. This power was extended by what is known as Palmer's Act, 19 & 20 Vict. c. 16, so as to enable the court to direct a case to be tried at the Central Criminal Court. Provisions having the same effect are to be found in 25 & 26 Vict. c. 65, as to the trial for murder or manslaughter of soldiers subject to the Mutiny Act."

(b) By 19 & 20 Vict. c. 16, noticed ante, p. 31, the Queen's Bench Division of the High Court of Justice may order any person charged with any offence committed out of the jurisdiction of the Central Criminal Court to be tried in that court.

should be co-extensive with the jurisdiction of the court, and CH. XVII. the offence, as a general rule, should be stated to have been committed within such jurisdiction. By 14 & 15 Vict. c. 100, s. 23, noticed post, p. 90, where an indictment for an offence committed in the county of any city or town corporate is preferred at the assize of the adjoining county, such county of the city or town is deemed the venue, and may either be stated in the margin of the indictment, with or without the name of the county in which the offender is to be tried, or be stated in the body of the indictment by way of

venue.

By the 7 Geo. 4, c. 64, s. 12, a felony or misdemeanor committed on the boundary of two or more counties, or within the distance of 500 yards thereof (c), or begun in one county and completed in another, may be tried, &c., in either of the said counties.

By the 7 Geo. 4, c. 64, s. 13, where a felony or misdemeanor is committed on any person, or on or in respect of property, in or upon any carriage employed in a journey, or is committed on any person, or on or in respect of any property on board any vessel employed on a voyage or journey upon any navigable river, canal, or inland navigation, such felony or misdemeanor may be tried, &c., in any county through any part whereof such carriage or vessel has passed in the course of the journey or voyage during which such felony or misdemeanor was committed; and in all cases where any part of any highway or such river, canal, or navigation constitutes the boundary of any two counties, such felony or misdemeanor may be tried, &c., in either of the said counties, through or adjoining to or by the boundary or any part whereof such carriage or vessel passed, in the course of the journey or voyage during which such felony or misdemeanor was committed.

When an offence is committed in a detached part of a county, which is surrounded in whole or in part by another county, the offender may be committed for trial by the justice of the latter county and tried therein. (2 & 3 Vict. c. 82, ss. 1, 3; 1 Russ. on Crimes, p. 8.)

In certain counties of cities and towns certain prisoners may be committed and tried at assizes held for adjoining counties. (14 & 15 Vict. c. 55, s. 19; c. 100, s. 23.)

(c) The distance must be measured in the direct line. (R. v. Wood, 5 Jurist, 225.)

PART IV.

Statement of the

offence.

In indictments for forgery and uttering forged matter the venue may be laid, and the offender may be tried, &c., in any county or place in which he is apprehended, or is in custody in the same manner in all respects as if his offence had actually been committed there. (24 & 25 Vict. c. 98, s. 41.)

As to offences committed abroad and on the high seas, see Chapter 36.

As to the power to change the venue, see R. v. Holden, 5 B. & Ad. 347; R. v. Walter, 14 Cox C. C. 579.

In general, in the indictment the facts and circumstances constituting the offence, must be set forth with certainty and precision (a), and the defendant must be charged positively with having committed it. An indictment that the

(a) At p. 36 of their report the Criminal Code Commissioners state "the excessive stringency of the rules on the subject of indictments has been greatly, though somewhat capriciously, relaxed by a variety of statutes, of which 14 & 15 Vict. c. 100 is, perhaps, the most extensive. By their provisions the necessity for excessive particularity is done away with in some cases, but is left untouched in others. Thus, for instance, it is sufficient in an indictment for murder to charge that A. wilfully, feloniously, and of his malice aforethought did kill and murder B., instead of setting out, as was formerly necessary, the precise manner in which the murder was committed. If the charge is not murder but obtaining goods by false pretences, the particular false pretence used must be stated, and must be proved as laid, and a proper averment that it was false to the knowledge of the accused must be introduced. It is quite impossible to assign any reason whatever why indictments for murder should be drawn on one principle and indictments for false pretences on another. The explanation is that the inconvenience of the principle which used to apply to both cases happened to attract notice in the one case and to escape notice in the other."

In R. v. Aspinal, 46 L. J. M. C. 149, BRETT, L. J., whilst delivering the judgment of the court, said with regard to indictments :-" Every pleading, civil or criminal, must contain allegations of the existence of all the facts necessary to support the charge or defence set up by such pleading. An indictment must, therefore, contain an allegation of every fact necessary to constitute the criminal charge preferred by it. As in order to make acts criminal, they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If in order to support the charge, it is necessary to show that certain acts have been committed, it is necessary to allege that those acts were in fact committed. If it is necessary to show that those acts, when they were committed, were done with a particular intent, it is necessary to aver that intention. If it is necessary, in order to support the charge, that the existence of a certain fact should be negatived, that negation must be alleged."

At common law the rules of pleading in civil and criminal cases were the same (Castro v. The Queen, 50 L. J. Q. B. 504), per Lord BLACKBURN.

1

defendant is a common highwayman is not sufficient, be- CH. XVII. cause it is too general, and contains not the particular matter constituting the offence. (2 Hale, 182; White v. The Queen, 13 Cox C. C. 318.) In like manner an indictment for divers scandalous threatening and contemptuous words spoken of a justice of the peace is not good, it ought to set forth the words. (2 Str. 699; R. v. Bradlaugh, 48 L. J. M. C. 5.) But in certain excepted cases it is sufficient to state generally that the defendant is so-and-so, without specifying any particular instances,—as in a charge of being a common scold, a common barrator, or of keeping a common bawdy house. (2 Hawk. c. 25, ss. 57, 59.) The offence must be positively charged and not stated by way of recital nor argumentatively nor disjunctively, and one material point of an indictment should not be repugnant to another material part of it; but if the repugnancy be in an immaterial part, it may in general be rejected as surplusage. If a notice be necessary to raise the duty which the defendant is alleged to have broken, it should be averred. (R. v. Holland, 5 T, R. 621.) If a request or demand be necessary to complete the offence it must be stated. Where an evil intent accompanying an act is necessary to make such act a crime, the intent must be alleged in the indictment. Presumptions and conclusions of law need not be stated, nor need facts of which the court, ex officio, take notice; nor mere matter of evidence. Mere matter of inducement does not require to be stated with so much certainty as the statement of the gist of the offence. (Com. Dig. Ind. G. 5.)

In some cases technical words essential to the definition of the offence must be used-thus, in an indictment for murder, the word murder; and in an indictment for rape, the word ravish, are absolutely necessary. All felonies should be alleged to be done feloniously; burglary is laid to have been done feloniously and burglariously; murder feloniously and of his malice (b) aforethought. (2 Hale, 184, 187.)

If there be any exception contained in the same clause of the Act which creates the offence, the indictment must show negatively that the defendant or the subject of the indictment does not come within the exception. (R. v. Harvey, L. R. 1 C. C. R. 284; 40 L. J. M. C. 63.) If, however, the exception or proviso be in a subsequent clause or statute, or, if although in the same section, it be not incorporated with the enacting clause by any words of reference, it is

(b) As to the legal meaning of malice, see Chapter 36.