day of day of SUMMARY PRO- a m nth in a preceding year. (z) But if the offence be alleged CHAP. IV. to have been committed between two named days, that would exclude the proof of an offence committed before the first or after the last of those days. (a) As that mode of stating an offence is allowed in informations, it may be advisable, when the exact day is doubtful, to allege that it was committed on a certain day, without naming it, between the -and the taking care to state days sufficiently distant from each other to include the real day. (b) When a statute recently passed has enacted that if a party commit an offence after a named day, he shall be liable to a penalty, it has been usual to aver that the offence was committed after that day; but not so when the statute has been long enacted, and in no case is the allegation necessary. (c) It is usual also, when a particular statute limits the time within which the prosecution must be commenced, to aver that the offence was committed within that time, as "and within three "calendar months now last past;" but this also is unnecessary. (d) offence. Sometimes the nature of the offence requires local descrip- The place of tion, and then accuracy will be essential; and when the penalty committing the or a part, is given to the poor of the parish where the offence was committed, then the parish where the offence was committed must be very accurately stated, according to the truth; (e) and if the statute require the offence to be prosecuted before justices next to the place where the offence was committed, then accuracy in the local description may be essential; (f) and it must be expressly averred that the precise place where the offence was committed was in the county where the justices have jurisdiction. (g) But in general the name of the parish or place is immaterial to be proved as alleged; and where there was no place of committing the offence charged in the information, as stated in the conviction, the Court held that the place was to be intended to have been laid where the information was made; (h) and even the statement of a fictitious parish in an indictment has been holden immaterial, although it be expressly (2) R. v. Crisp, 7 East, 389. (b) R. v. Chandler, 1 Salk. 378; R. v. Speed, 1 Lord. Raym. 583; R. v. Simpson, Gilb. 282; Bunb. 223; id. 262. (c) Gilb. Cases L. & E. 242; 1 Saund. 309, note 5. (d) 2 East, 340; id. 362. (e) Clarke v. Taylor, 2 Esp. R. 213. But if extra parochial, when not mate- (g) R. v. Edwards, 1 East R. 278; 1220. (h) R. v. Swallow, 8 T. R. 284. CEEDINGS, &c. CHAP. IV. proved that there is no such parish in the county. (i) The SUMMARY PRO- offence must always be stated in the body of the information, and proved to have been committed in the county within which the information was laid, and the statement of the county merely in the margin will not suffice; (k) and this even in cases where a form of conviction is given, which does not expressly require the statement of place. (1) In general, even in cases where the precise place is immaterial to be proved as laid, yet it has been held necessary to state either a new place, or to repeat "then and there" to every fresh sentence or allegation, or the information is bad, and the conviction would be quashed. (m) But it suffices to repeat the town or parish aforesaid, without also adding in the county aforesaid. (n) It was held, that if a man standing in one parish or county shoot at game in another, he uses the gun in the district in which he stands. (0) There is no intendment, either in allegation or evidence, in favour of a place having been within the jurisdiction; and therefore, although it was proved that a house was within the proper county, and that a private still was found concealed in a garden belonging to such house, yet for want of express evidence that such garden also was within the jurisdiction, the conviction was quashed. (p) Description of the offence itself. The safer course, it has been said, is to describe the offence itself, either affirmatively or negatively, in the very words of the statute; (g) but a variation from the precise words of the statute is not fatal, if the words used are such as bring the case within the plain meaning of the act. (r) Besides the words of the act, there must also be particularity in regard to time, place, and such other essential circumstances as may be necessary for particularity. certainty and precision; for although the statute be general in its terms, yet the information and evidence must nevertheless frequently be particular; (s) and as a general rule, an information and conviction must be as certain as an indictment. (t) The requisite (i) R. v. Woodward, 1 Moody's Crown Cases, 323; but see R. v. Jeffries, 1 T.R. 241. (k) 8 Mod. 309; 2 Lord Raym. 1220; 1 Saund. Rep. and notes. (1) R. v. Hazell, 13 East, 136; Kite and Lane's case, 1 B. & C. 101. (m) R. v. Hazell, 13 East, 139; and R. v. Edwards, 1 East, 278. (n) R. v. Burnaby, 2 Lord Raym. (0) R. v. Alsop, 1 Show. 339. 8; Per Lord Holt, in 1 Lord Raym. 581, 583; 1 Salk. 378; R. v. Marsh, 2 Bar. & Cres. 717. (r) Per Bayley, J. in R. v. Ridgway, 5 B. & Ald. 527; 1 D. & R. 123. (s) In R. v. Chapman, Sayer, 203, a conviction in the words of the statute, "robbing an orchard," without saying of what, was holden, bad; and see R. v. James Caldecott, 458; R. v. Jervis, 1 Burr. 152; R. v. Perrott, 3 M. & S. 379. (t) R. v. Pain, 5 Bar. & Cres. 251; 7 D. & Ry. 678. S. C. Thus, although a statute enact that if any person CHAP. IV. SUMMARY PRO CEEDINGS, &c. mation or oath, not suffice. In all cases, when by the terms of a particular statute, the When an inforinformation itself is required to be on oath; or when in sup- merely in the port of an information, the oath of a credible witness of the words of the offence is required, before the magistrate can legally issue his statute, will summons, much less a warrant: (a) then it is incumbent on him to take care that such informer or deponent do state in such oath the particular facts us they occurred, and that he do not swear as it is termed by the card in the very words of the act; (b) and, unless facts are apparently truly sworn essential to constitute the offence complained of, the magistrate should not issue even his summons, and certainly not a warrant, upon a general information, however technically correct. (b) extensive as On the other hand, the information and oath should be as Should be as extensive in the statement of the offence, as the then supposed the facts will facts will warrant; for the informer cannot afterwards, on the warrant. (u) R. v. Chapman, Sayer, 203; R. v. Selwyn, 2 Chit. R. 522, but see R. v. Rabbits, 6 Dowl. & R. 341, infra. (v) R. v. Neild, 6 East, 417. (w) Per Abbott, C. J. in R. v. Ridgway, 5 B. & Ald. 527. (x) Ante, 145, and supra. (y) 1d. ibid. (2) R. v. Rabbits, 6 Dowl. & Ry. 341. Sed quære supra, note (u). (a) All the recent acts, 9 Geo. 4, c. 31, and 7 & 8 Geo. 4, c. 29, and ch. 30, and 1 & 2 W. 4, c. 32, require such oath. (b) Cohen v. Morgan, 6 Dowl. & Ry. 8. CHAP. IV. hearing, give evidence of a larger or a different offence than that stated in the information. (c) SUMMARY PRO- The information must charge an offence equal to that prohibited, either in the express words of the act, or substantially So. Information tive, &c. The information also must charge the offence, either in the precise terms of the act, or in words which are synonymous or equivalent to the same offence; and therefore, whilst the statute 5 Ann, c. 14, was in force, an information charging that "the defendant killed a hare," instead of saying that he used a greyhound to kill and destroy game, the conviction thereupon was quashed; (d) or if a statute declare the offence to be killing hares or fish in an 66 inclosed place," the information must aver accordingly. (d) So where the then Smuggling Act, 45 Geo. 3, c. 121. s. 7, subjected any British subject to a penalty, when found on board a ship, in a certain situation, an informatian not describing the defendant accordingly, was holden invalid; (f) but the unnecessary addition of words, not altering the effect of the charge, will not prejudice. (g) An information also must be positive, (h) and not by way of must be posi- recital; (k) nor be argumentative, (1) nor in the alternative, as that the defendant killed, or attempted to kill, or sold beer or ale; (m) and if it should be defective in either of these respects, the defendant might object on the hearing; or if the conviction should continue the defect, the same might be quashed; and though it has been supposed, that probably if the justice in the conviction should state that the defendant was only guilty of one precise act, the objection would be aided; (n) yet it has been decided, that an information on the 48 Geo. 3, c. 143, for selling beer or ale without an excise license was bad, and a conviction thereon, finding that the defendant sold ale only, was quashed. (o) If the particular statute contain either of the statute descrip- words, maliciously, wilfully, knowingly, unlawfully, &c., then tive of offence, the information, at least, if not the evidence and conviction, must aver and maintain, that the defendant with that motive, knowledge, or illegality, committed the act. (p) Particular words in the when essential. Averments negativing exemptions or qualifications. If there be any exemption, exception, or qualification, in the (m) R. v. North, 6 Dow. & Ry. 143; R. v. Pain, 5 Bar. & Cres. 251; 7 Dowl. & R. 678. (n) R. v. Sadler, 2 Chit. R. 519. (0) R. v. North, 6 Dowl. & R. 143; and see R. v. Pain, 5 Bar. & C. 251; and 7 Dowl. & R. 678, S. C. (p) R. v. Jukes, 8 T. R. 536; R. v. Ridgway, 5 B. & Ald. 527; when need not, R. v. Marsh, 2 B. & Cres. 720. SUMMARY PRO- enacting clause which imposes the penalty, or in a proviso CHAP. IV. therein, or even in any other clause that ought to be read as part thereof, although printed in a distinct section; then it is necessary, after stating the offence or act complained of, to aver or state that the offender was not within such exception or qualification; but when the exemption or qualification comes in a subsequent clause not referred to in the enacting or penal clause, then no such averment is necessary, and the defendant must bring himself within the exception, as a cross and distinct ground of defence. (q) But it has been lately held, that the mere placing the proviso in the same section of the printed act does not make it necessary to notice it in an information or conviction, or in pleading, unless it is also incorporated in or referred to in the enacting sentence; as by the words "except "as hereinafter mentioned," for statutes are not divided into sections, upon the rolls of Parliament. (r) When necessary to negative exceptions at all, it is necessary to negative each distinctly in an information, and not in a general sweeping allegation; although it would be otherwise in a declaration upon the same act, and for the same penalty. (s) The most frequent instances of convictions having been quashed for this defect, were cases under the now repealed Game Act, for the penalty incurred, by using a gun to kill game, not being qualified, in which it was held necessary to negative all the qualification in the enacting clause; (t) although it was considered otherwise as to exemptions, introduced in a subsequent enactment, of which the defendant must take advantage by bringing himself within the exception; and the prosecutor need not adduce any negative evidence. (u) Numerous other instances, however, have frequently occurred (v); and under the 12th section of the recent Game Act, 1 & 2 W. 4, c. 32, an information for the 40s. penalty against an occupier of land, for pursuing game in his own land must, it is apprehended, aver, in the terms of the section, that he committed the offence without the authority of the lessor, &c., (w) although the same act requires the defendant to prove the affirmative of any defence, (x) and which seems to be now established as a general rule; so that the now requiring an in (g) 1 T. R. 144; 6 T. R. 559; R. v. Jukes, 8 T. R. 542: R. v. Jervis, 1 East, 646, 7; R. v. Matters, 1 B. & Ald. 362; 2 Chitty's R. 582; 6 B. & C. 430; 3 B. & C. 189. (r) 3 B. & C. 189; and see observations in Valasour v. Ormrod, 6 B. & Cres. 430; as to declarations on Statutes, 1 Chitty on Pleadings, 255, 6, 404, 5. (s) 1 T. R. 144; 1 Lev. 26; 1 East, (t) R. v. Wheatman, Dougl. 346. (v) R. v. Jukes, 8 T. R. 542. (x) Id. 1 sect. 42. |