England, by its preparation has contributed materially to the pure and impartial administration of justice in this kingdom. Indeed it may be said of Lord Campbell that the wish expressed by Wentworth nearly sixty years ago has at length been happily realized: "How much then is it to be desired, and here I am certain I speak the sentiments of the whole profession," remarks the venerable pleader (o), “that there may be found, at no distant period, in the senate, a temperate legislator both qualified and ambitious to undertake a task so momentous and delicate, one who shall add to a professional accuracy the ampler views of the statesman, who will remember with pleasure that if much is to be cut off more is to be preserved, who shall love to repair rather than to rebuild or impair the fabric by removing its foundation, nor yet so tender of what he finds established as not to dare oppose the tyranny of custom whenever it leads to consequences. palpably injurious and absurd."

(0) 4 Wentw. Pl. Crim. Div. vi.

(8)

CHAPTER II.

REQUISITES OF INDICTMENTS UNDER 14 & 15 VICT. C. 100.

AN indictment (a) is defined as an accusation at the suit of the crown, presented by a grand jury duly constituted and sworn, charging one or more persons with the commission of some offence against the law, or of several such offences.

1. The Caption.—The caption (b) is the formal preamble to an indictment when it is removed by certiorari from an inferior court to the Queen's Bench, or when the record is made up, but it is not a part of the indictment itself. It is essential that it should show that the indictment was taken before a court which has proper jurisdiction. The following is the form of a caption, which follows the precedent of Lord Hale:

:

Westmoreland, to wit.

At the general quarter sessions of the peace holden at Appleby in and for the county aforesaid, on the day of in 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 A. B. and C. D., 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

(a) 1 Inst. 126, b; Hawk. P. C. b. 2, c. 25, s. 1.

(b) See Reg. v. Whiley, 1 Car. & Kir. 150; Bac. Abr. tit. Indict. (I.)

,

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, &c. [here follows the indictment].

For the form of a caption to an indictment at the assizes, see Appendix (4).

By the new Act to amend the Law of Evidence (14 & 15 Vict. c. 99 (c)), it is declared, that, whenever in any proceeding whatever it may be necessary to prove the conviction or acquittal of a person charged, it shall not be necessary to produce the record or a copy thereof, but that it shall be sufficient that it be certified, or the purport thereof be certified under the hand of the clerk of the court that the paper produced is a copy of the record of the indictment, trial, conviction and judgment, or acquittal, omitting the formal parts thereof. This provision will render it unnecessary in proving a plea of autrefois acquit, &c. to produce the record, and in actions for malicious prosecutions, and in some other cases, to produce in evidence an examined copy of the record of the indictment, which heretofore must have been formally drawn up; but the section quoted only refers to cases where the record is produced to prove a trial, conviction or acquittal, and has no application to cases where indictments are removed by certiorari from sessions or assizes pending the trial (Fitz. Nat. Brev. 245 a); nor will it dispense with making up the record in proceedings on writ of error (see 14 & 15 Vict. c. 100, s. 3).

2. The Venue (d).—The rule of the common law is, that the venue shall be co-extensive with the jurisdiction of the

(c) See post, p. 72, sect. 13.

(d) Stephen on Pleading, 308, 318.

court. By the common law the grand jury could not indict or present any offence which did not arise within the county or the precinct for which they were returned, but their jurisdiction has been extended by several modern statutes. It is now provided by sect. 23 of 14 & 15 Vict. c. 100, that the name of the county, city or other jurisdiction shall be stated in the margin of the indictment, and that the name so stated shall be taken to be the venue of all the facts stated in the body of such indictment, unless the contrary shall expressly appear; but in cases where local description is necessary this provision does not dispense with such description, and by sect. 24 it is declared that no indictment shall be held insufficient for want of a proper or perfect venue.

3. The Commencement.-The formal words "the jurors for our lady the queen, &c." are the proper commencement of every indictment; but an error in the commencement, which since 7 Geo. 4, c. 64, was ground for demurrer, can no longer vitiate the indictment, and may, by order of the court, forthwith be amended.

4. The Name and Addition of the Defendant.-The name or names of the defendant, or those by which he is most commonly known, should be, as far as possible, correctly stated. If the name of a prisoner be unknown, and he refuses to disclose it, he may be described as a person whose name is to the jurors unknown, but who is personally brought before them by the keepers of the prisoner. "Not named" is a good description of an unbaptized infant (e). Misnomer can only be taken advantage of by plea in abatement, and is cured by pleading over. The judgment for the defendant

(e) Reg. v. Waters, Court of Crim. Appeal, 1 Den. C. C. 356.

formerly was that the indictment be quashed; but since the statute 7 Geo. 4, c. 64, s. 19, the indictment could have been amended, and the defendant required to plead to the amended indictment. And now by sect. 1 of the present statute, no variance between the statement and proof of the christian and surname or other description whatsoever shall be ground of objection, unless material to the merits of the case. The 1 Hen. 5, c. 5, is still in force, and it is usual and proper to state the addition (ƒ) of the defendant; but errors in this particular also come within the scope of the new

statute.

5. Parish.-It is usual to describe the defendant as "late of the parish of Sheffield in the county of York," or as the case may be; but practically the parish where the offence is committed is that which is inserted (see "Venue,” ante).

6. Time. It is necessary to state the day of the month and year, either of our Lord, or of the Queen's reign, when the alleged offence was committed, but it never was necessary to prove it strictly as laid; and now by sect. 24, an omission of the time, or an imperfect statement of it, is no longer a ground of objection to an indictment, unless time be of the essence of the offence, as in burglary, &c. (g)

7. Place. It is usual to state the offence to have been committed "at the parish aforesaid in the county aforesaid,” but no other venue than that in the margin is now essentially necessary, except where local description is requisite.

(f) Comyn, Dig. tit. Indict. (G. 1).

(g) But it has been observed by Paterson, J., that the word "burglariously" was sufficient to show that the offence was committed in the night-time. (Reg. v. Thompson and Waite, York Winter Goal Delivery, 1848).