CHAPTER IV.

OF THE MODES OF PROSECUTING OFFENCES AT SESSIONS, AND THE TECHNICAL RULES INCIDENT TO THE PROCEEDINGS.

SECTIONS.

I.-Of Prosecution by Indictment ; and the Law of Indictments.

II.—Of Prosecution by Presentment. III.-Of Prosecution by Information.

SECTION I.

OF PROSECUTION BY INDICTMENT.

Indictment, what.]-Prosecution by indictment is the most usual and constitutional course of bringing offenders to justice on criminal charges. It is an accusation preferred in the name of the sovereign, to a grand jury, competent by law to find it, and found by them on their oaths. Although, in point of law, it is a proceeding at the suit of the crown, it may be preferred at the instance of any one, subject to the liability of the prosecutor to an action if he proceeds maliciously, and without probable cause. It commences, "The jurors for our Lady the Queen, upon their oath (and affirmation, if one or more be a quaker, moravian, &c.) (r), and is sent to the grand jury, written on parchment, with the names of the witnesses indorsed, who are sworn in court by the crier or clerk of the peace, in order to be examined in support of it before the grand jury (s). Before it is returned found, it is called a "bill," and only becomes an "indictment" on that return.

Of the Joinder of several Defendants.]—Where the offence is such as several may join in, e. g. murder, robbery, &c., and there is reason

(r) The jurors intended are those mentioned in the caption, Reg. v. Turner, 2 M. & Rob. 214, Parke, B. See post. (8) Where this oath was neglected,

and the prisoner was convicted, he received a free pardon, R. v. Dickenson, R. & Ry. 441; stated ante, p. 155.

to believe several have joined in committing it, in several degrees, e. g. as principals in the first or second degree, or as accessories before or after the fact, they may all be indicted jointly; and this is the more convenient and proper course: though a distinct indictment might, in point of law, be maintained against each, as all offences are, in their nature, several (t). Such indictment, indeed, is in its nature several as well as joint; for the issues upon it are joined distinctly between the crown and each defendant; the defendants may plead in different ways, and although they plead similar pleas, may, in cases of felony, procure several trials by severing in their challenges. So also some may be convicted and others acquitted, except where the offence is one which cannot be committed by less than two, as conspiracy; or less than three, as riot; when if the jury acquit all the parties charged on the record but one in the first case, or two in the second, all must be acquitted, unless it is laid and found that the offence was committed with others to the jurors unknown. Thus, several may be joined in an indictment for publishing a libel, where all joined in the publication (u); and for obtaining money under false pretences, when all were present aiding and assisting in the common object of fraud (v). If a nuisance results from the several acts of several parties, they may all be jointly indicted for causing it (w). But where the offence of each is entirely distinct, or arises out of some personal duty or omission, each ought to be separately indicted, or, at all events, severally charged. Thus indictments against two or more jointly for perjury; against two as common scolds; against several for exercising a trade without serving an apprenticeship, are bad; for the acts complained of are essentially and necessarily several (x). It has, indeed, been held that several defendants may be included in one indictment for several distinct misdemeanours of the same kind, as for keeping disorderly houses severally (y); but though in strictness this may be done, it is neither discreet nor proper; for the court might (at all events, before plea, or as it seems, even before trial) quash such an indictment on its appearing that inconvenience would arise from the joinder of different counts against different offenders (z).

(t) 2 Hale, 173.

(u) R. v. Benfield and Saunders, 2 Burr. R. 980.

(v) R. v. Young, et al. 1 Leach, 505. (w) R. v. Trafford and others, 1 Barn. & Adol. 874.

(x) R. v. Phillips and others, 2

Strange, 921; Reg. v. Hodson, 6 Mod. 210.

(y) 2 Hale, 174, cited R. v. Kingston and others, 8 East, R. 46.

(z) Id. ibid. See, however, post, end of Chap. V.; also Chap. VII. s. 4.

Of charging several Offences in an Indictment.]—In point of law, several offences, which may be tried by the same rules, and which have the same legal character, i. e. several felonies, and several misdemeanours, may be charged in one indictment (a). It is not necessary that the offences so joined should be subjected to the same punishment; but only that they should come within the same legal class (viz. of felony or misdemeanour), and be subject to the same mode of trial. Thus counts for felony at common law may be joined with counts for felony by statute; counts for a felony with aggravations which render it capital may be joined with counts for a felony which is not capital; counts for riots and aggravated assaults, punishable by hard labour, may be joined with counts for common assaults for which that punishment cannot be inflicted; and neither the abolition of benefit of clergy by 7 & 8 G. IV. c. 28, s. 6, nor anything in that act, prevents the joinder in an indictment of counts which might have been joined before that act passed. But a charge of felony cannot be joined with a charge of treason, because not only the degree but the legal character of the offence is different, and the modes of trial differ; and, for the same reason, no charge of felony could be joined with a charge of misdemeanour (b).

(a) 2 Hale, 173, and post, Chap. V. s. 11, notes.

(b) 1 Chit. Cr. L. 1st ed. 254. The test whether different offences may or may not be charged in an indictment, seems not always to be whether the judgments or punishments consequent on conviction differ or not (see per Lord Ellenborough, in R. v. Johnson, 3 M. & S. 550), but whether the nature and quality of the offences charged is the same, or different; in other words, as it seems, whether one is a felony and the other a mere misdemeanour (ibid. 1 Ch. Cr. L. 1st ed. 254,) which still vary materially in the incidents of trial, e. g. in challenges; having a copy of the indictment in misdemeanours, and not in felony. (See 1 Ch. Cr. L. 1st ed. 403, 404; R. v. Fulwood, Cro. Car. 483; R. v. Westbeer, Stra. 1137.) As to the means of getting a special jury in misdemeanour, if indictment is found in queen's bench, or removed there on certiorari and sent down for trial at nisi prius, where a special jury cannot be had in felony or treason, ibid. Such joinder of felony and misdemeanour was held quasi misjoinder in a civil action, and so sub

ject to demurrer, arrest of judgment and error (R. v. Young, 3 T. R. 103); but lately in Reg. v. Robert Jones, 8 C. & P. 776, where an indictment contained several counts for felonious stabbing and one for a common assault, an objection for misjoinder was taken late in the case, and Williams, J., left the case to the jury on the other counts, without noticing the count for assault. The verdict of "Guilty" was entered on a count for felony, on application of prosecutor's counsel; and the fifteen judges held the conviction right; and see 1 East's P. C. 409, et seq.

In modern practice it is held that several misdemeanours may be joined in an indictment, though the judgments on each differ. Thus, counts for an assaulting with intent to ravish, and for a common assault; counts for assaulting a constable and for assaulting prosecutor, stated to be a common person (per J. Parke, J., in R. v. Findcane and another, 5 C. & P. 551); for conspiracy and false pretences; false pretences and forgery at common law (R. v. Collier, 5 C. & P. 160); for entering enclosed land by night with another person,

However, in practice, the use made of the legal right to join several charges of felony is commonly no other than the charging the same offence in different counts of the same indictment in different ways, to meet the several aspects which it is apprehended the case may assume in evidence, or in which it may be regarded in point of law by the court; as for example, where it is doubted whether the goods stolen, or the house in which a larceny was committed belong to or is occupied by A. or B., one count may state the goods, &c. as A.'s, and a second as B.'s (c). For if before the accused has pleaded, or the jury is charged with him, it is objected that an indictment for felony actually embraces charges of offences essentially distinct, e. g., stealing and receiving stolen goods, the property of the same person, though at different times (d), the court will, in its discretion, quash the indictment (e), or if such joinder is only discovered after the jury is so charged, will compel the prosecutor to elect on which charge he will proceed (ƒ). So if, in felony, charges requiring an essentially different state of facts to support them, though referring to the same transaction, be joined, as a count for robbing, with a count for assaulting with intent to rob, the court will, in general, compel the prosecutor to make a similar election (g). In cases of misdemeanour it is otherwise; for although, in such cases, different counts may be introduced applicable to the same facts as in case of felony, no objection can be made in any way even to the joinder of counts applicable to different facts, so that the legal character of the substantive offences charged be the same (h). Thus it is the constant practice to receive evidence of several assaults or libels on the several counts of the same indictment; and, on the other hand, an indictment for an assault on several is valid, though the parties assaulted could not join in an action (i).

armed for the purpose of killing game (a misdemeanour which by 9 G. IV. c. 64, s. 9, can only be tried at the assizes); and on s. 2, for assaulting a gamekeeper authorized to apprehend; and for assaulting a gamekeeper in execution of his duty; and for a common assault (R. v. Findeane and another, 5 C. & P. 551), may be properly joined.

(c) R. v. Eggington, 2 B. & P. 508. So the same act, e. g., burglary, may be laid in different counts to have been done with intent to steal and to murder, R. v. Thompson, 2 East, P. C. 515.

(d) Young v. the King (in error), 3 T. R. 106; 2 Leach, C. C. 1105, n.

(e) R. v. Dunn, et al. 1 R. & M. N.P.C. 146.

(f) R. v. Jones, 2 Campb. 132; 1 Starkie's Crim. Pleading, 36, citing R. v. Kingston, 8 East, 41; 2 East, P. C. ss. 26, 27; 3 T. R. 106. See also as to this, post, Chap. V. S. 11, notes, and Chap. VII. s. 4.

(g) R. v. Gough, 1 M. & Rob. 71.

(h) Per Lord Ellenborough, in R. v. Jones, 2 Campb. 132. So conspiracy, and charges of other misdemeanours, may be joined, R. v. Johnson, 3 M. & S. 539.

(i) R. v. Benfield and Saunders, 2 Burr. R. 984.

It may be proper here to observe, that the several counts of an indictment, whether founded on the same or different facts, should always purport on the face of them to charge distinct offences.

Degree of Offence to be charged.]-It is necessary that a prosecutor, in determining on the nature of his indictment, should take care that he does not charge the offence as of a lighter or of a lower class than his evidence will sustain. There is sometimes considerable difficulty in determining whether the charge shall be a charge of felony for the consummation of a crime, or of a misdemeanour in attempting it; and if the felony be charged, and any doubt is thrown on its completion, the prisoner will be of course acquitted (j), while he will be equally entitled to acquittal if the misdemeanour is charged and the felony clearly proved; for the former merges in the latter (k). This last difficulty so frequently occurred in cases nicely balanced between a larceny of goods and the fraud of obtaining them under false pretences, in which it was thought more prudent to indict for the misdemeanour, that it was enacted that if on an indictment for obtaining goods, &c. by false pretences, it be proved that they were obtained under circumstances which in law amount to larceny, the prisoner shall not on that account be entitled to an acquittal, and no person tried for such misdemeanour shall be afterwards prosecuted for larceny on the same facts (1). Again, under the above rule, parties often escaped punishment altogether; who, being indicted for rapes, procuring abortion, &c. or other felonies where the crime charged included an assault against the person, were acquitted of the felony, though clearly proved to be guilty of the scarcely less criminal attempt to commit it; but by an act of the present reign (m) it is provided that on the trial of any person for any offence therein before mentioned, or for any felony whatever (n), where the crime charged (o) shall include an assault against the person, it shall be lawful for the jury to

(j) 2 Hale, 171, 172. Post, Ch. VII.

"A felony cannot, on the trial, be modified into a misdemeanour, since the defendant would thereby lose the benefit of making full defence by counsel (now obviated by statute), a copy of the indictment, and a special jury." 1 Ch. Crim. L. 251, 252, citing 1 Leach, 14; 2 Stra. 1133; sed vid. Cro. Jac. 497; Kelyng. 29; Starkie, 169.

(k) R. v. Harmwood, 1 East, P. C. 411. Assault charged; rape proved, cor. Buller, J.

(1) 7 & 8 G. IV. c. 29, s. 53; post, Ch. VI. 8. 5.

(m) 7 W. IV. and I V. c. 85, s. 11.

(n) The offence of carnally knowing and abusing a female child under ten is not a felony within this section, though the indictment charges an assault on the child, Reg. v. Banks, 8 C. & P. 574, Patteson, J.; but if a lad is acquitted of rape on account of being under fourteen, he may be convicted of an assault under this act, Reg. v. Brimilow, 9 C. & P. 366; 2 Moo. C. C. 122.

(0) One good count will suffice to give this clause operation, Reg. v. Nicholls, 9 C. & P. 267.