8. Statement of the Offence.-The offence must be positively and explicitly stated in the indictment, with legal certainty, without duplicity or argumentativeness, in such a manner as by distinct averment to give the party about to be put upon his trial notice who are his accusers and what the charge is which he must be prepared to answer, so as to enable the court to pronounce a legal judgment, and to enable a Court of Error to judge whether the crime charged is an indictable offence. Lord Campbell's Act introduces some very important changes into the law upon this branch of criminal pleading. In cases of murder, it will in future only be necessary to aver that the prisoner did feloniously, wilfully and of his malice aforethought kill and murder the deceased; in manslaughter, that he did feloniously kill and slay the deceased; in forgery, that the defendant did feloniously forge the deed or instrument, describing it by the name or designation by which the same may be usually known, or its purport, without setting out any copy or fac-simile of it, or otherwise describing the same or the value thereof. And in future in cases of forging or uttering, it will be sufficient to allege that the felonious act was done "with intent to defraud," without averring that there was an intent to defraud any particular So in indictments for obtaining money by person. false pretences, it will in future be unnecessary to charge an intent to defraud any particular person. As to the necessity of stating correctly the corpus delicti, and all matters of substance, the new law makes no change;-they do not come within the scope of the provisions enabling the courts to amend indictments, and the Court of Error will reverse any judgment given upon an indictment bad in matter of substance. Thus, in indictments for perjury, although the provisions of 23 Geo. 2, c. 11, s. 3, simplifying such indictments, are extended by 14 & 15 Vict. c. 100, s. 20, to cases not within the

previous act, the necessary allegations must appear on the face of the indictment. It must appear that a cause was depending before a court of competent jurisdiction, and that the matter sworn was material; the substance of the matter sworn must be set forth, and in the assignments of perjury there must be proper averments to negative the oath and falsify the matter wherein the perjury is assigned. In the same way, if, in an indictment for obtaining money by false pretences, it were laid generally that the prisoner by false pretences unlawfully and fraudulently did obtain from a certain person the money, chattel or valuable security which formed the subject of the charge, without particularly setting forth the pretences whereby such property was obtained, such indictment would be bad in substance, and could not be amended under the powers given to the court in sect. 2 of the statute. Judgment upon it would be arrested (see Reg. v. Marsh, Court of Criminal Appeal, 13 Jur. 1010); or a writ of error might be brought, on which the proceedings must be reversed (Rex v. Mason, 2 T. R. 581).

9. Name and Description of the Prosecutor, &c.-Certainty in this respect was formerly of great importance, and it is still proper that the name and description of the prosecutor or third parties should be stated correctly, so as to give the person placed at the bar every necessary information and to prevent his defence being prejudiced. By the new statute it is declared that no mistake or omission in this respect shall vitiate the indictment, unless the court before which the trial shall be had shall be of opinion that the variance is material to the merits of the case, or is calculated to prejudice the prisoner in his just means of defence.

10. Statement of Written Instruments.-In cases of

indictment for libel, it will still be necessary to set out the libel, but hereafter it will scarcely be necessary in any other case. In forging and uttering, it is no longer necessary to set out a copy of the forged instrument; and in indictments for engraving or making any part of any instrument, matter or thing whatsoever, it shall be sufficient to describe it by the name or designation by which it may be usually known, without setting it out; and in all other cases, wherever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument in the same terms.

11. Statement of Chattels.-The rule laid down by Lord Hale is, that chattels shall be described by the names usually appropriated to them, and that is sufficient (h). By the 18th section of the present statute, it is enacted, that in future in indictments for embezzlement, larceny and every instrument in which it shall be necessary to make any averment as to money or any note of the Bank of England or any other bank, it shall be sufficient to describe it simply as

66

money," without specifying any particular coin or note; and the word "property," it is declared, shall be understood to include goods, chattels, money, valuable securities and every other matter or thing, whether real or personal, upon or with respect to which any offence may be committed. In descriptions of animals, the law assumes that they are alive, unless the contrary is stated; and where the carcass of an animal or a dead fowl is stolen (i), it is proper so to describe it.

(h) Reg. v. Gallears, Court of Crim. Appeal, 1 Den. C. C. 501. (i) Reg. v. Holloway, 1 Car. & P. 129.

12. Statement of Statutes.-It is not necessary to recite Public General Acts, as the courts are bound to take judicial notice of them and of all Local and Personal Acts declared to be public; but if the indictment be framed on a Private Act, it is necessary to set out specially the part which is relied on. Where the offence is created by statute, it is necessary (except in cases where the present act provides to the contrary) to charge the defendant with having committed (or omitted) the act under circumstances and with the intent mentioned in the statute.

13. Technical Words.-There are particular words of art employed by the law from time immemorial to express the offence, and they should not be needlessly departed from (j). In murder, the words "feloniously, wilfully and of his malice aforethought;" in manslaughter, did "feloniously kill and slay;" in rape, "did forcibly ravish, &c.;" in burglary, "burglariously;" in forgery, "feloniously did forge;" in uttering, "feloniously did offer, utter, dispose of, and put off the same well knowing it to have been forged;" in false pretences, that the defendant "unlawfully and fraudulently did obtain;" in forcible entry, "with a strong hand;" in larceny, "did steal, take and carry away," are the proper technical words in indictments, though an error in such a matter is now of no practical consequence.

14. Conclusion. At common law, the conclusion is "against the peace of our lady the Queen, her crown and dignity;" where the offence is created by statute, the words 66 contrary to the form of the statute in such case made and provided" must precede the words contra pacem. Geo. 4, c. 64, it was enacted, that no judgment should be

By 7

(j) 4 Bla. Com. 307.

stayed or reversed for want of these words; but omission of them was still ground for demurrer, and it is now expressly declared that no indictment shall be held insufficient on that account.

REQUISITES OF AN INQUISITION.

It may be stated generally that the same degree of certainty that is requisite in an indictment is requisite in a coroner's inquisition, and all the rules relating to the description of the offence in the case of the former, so far as the same are applicable, govern inquisitions. The inquisition must show of what place the party who took it was coroner. It is essential to every such inquisition that it be found by twelve jurors at the least. It ought to show that it was taken by the oaths of lawful of the county, and their names. Their names persons ought to be inserted in the body of the inquisition, and the inquisition ought also to be subscribed by them with their names at full. It must appear that the inquest was taken upon view of the body. The inquisition must state the place where the death happened or where the body was found, and it must also show at what place it was taken.

DEMURRER, WRIT OF ERROR, &c.

enacts, that

every

The 25th sect. of 14 & 15 Vict. c. 100, objection for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash the indictment, before the jury are sworn, and not afterwards.

Since the passing of 7 Geo. 4, c. 64, ss. 20, 21, the following formal objections could only have been taken advantage of on demurrer, being cured by pleading over (k):

Want of the averment of any matter unnecessary to be proved.

(k) 2 M. & Rob. 109; 2 Car. & K. 915.