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By the exception of the party.) But if a trader be sued by his How writ shall degree, the writ shall not abate, unless he shew that he has a abate for want higher degree. Horsepoole v. Harrison, 1 Str. 556.

Smith v.

of addition. Mason, 2 Str. 816. 2 Ld. Raym. 1541.

So, if the defendant appear upon process, and plead, taking Defendant no advantage thereof by exception, he bath lost the benefit must take the hereof: but it seemeth that the bare appearance of the party, exception in

time. without plea, doth not solve the want of a good addition. 2 Haw. c.23. 125.

To a plea of misnomer (which may be pleaded ore tenus) to an Replication to indictment, the clerk of arraigns may in behalf of the crown reply, plea of misthat the prisoner is known as well by the one name as the other; nomer. and if the jury find for the crown, the prisoner may plead over to the indictment. Dean's case, 2 Leach, 476.

But the prosecutor may now amend under 7 G. 4. c. 64. $19.; see infra.

But if an indictment of a capital crime be abated for a misno. Defendant not mer of the defendant's Christian name, the court will not dismiss to be discharged him, but cause him to be indicted de novo by his true name, and on account of

the insufficiarraign him again on such new indictment: for regularly a defendant shall not be dismissed for an insufficiency in an indictment, indictment, but or an appeal for a capital crime ; but that as he that pleads a mis- may be indicted nomer of either his surname or Christian name must in the plea set afresh. forth what his true name is, he thereby utterly concludes himself, and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. 2 Hale, 176.

Anciently, if a plaintiff gained a new name of dignity hanging Plaintiff oba writ, he made it abateable; but this inconvenience was remedied taining a digby 1 Ed. 6. c. 7. § 3., by which it is enacted, That if

any plaintiff in any manner of action shall be made a duke, archbishop, marquis, earl, viscount, baron, bishop, knight, justice of either bench, or serjeant-at-law, depending the same action, such action for such cause shall not be abateable or abated. In indictments of treason, felony, &c. against the greater nobi- How the addi.

tion shall be set lity, (dukes, marquises, earls, viscounts, and barons,) the estate

forth. and degree is named first, and after the town and county; as Edwardus Dux de Buckingham nuper de N. in com' Glouc'. And so it is when one is named of a city, which is a county of itself, the like order is observed :-). S. pannarius de London in com' civilatus London. But in case of the lesser nobility, and all under them, the town and county are named before the addition. 2 Inst. 669.

Also an indictment naming the defendant by two Christian names is not good, as where one was indicted by the name of Elizabeth N. alias Judith H. 1 Ld. Raym. 562.

The proceedings in regard to the 'misnomer of a defendant, or 7 G. 4. c. 64. the omission or mistake of his addition, are now much simplified;

No misnomer for by 7 G. 4. c. 64. g 19., for preventing abuses from dilatory

nor want of pleas, it is enacted, that no indictment or information shall be addition or abated by reason of any dilatory plea of misnomer or of want of wrong addition addition, or of wrong addition of the party offering such plea ; but to abate inin such case the court shall forthwith cause the indictment dictment;

but to be forthor information to be amended according to the truth, and shall

with amended,

nity.

s. 19.

Misnomer of vne, where several are joined.

call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded.

If several persons be indicted for one offence, misnomer or want of addition of one quashes the indictment only against him, and the rest shall be put to answer ; for they are in law as several in. dictments. 2 Hale, 177.

And it is the common practice, where an indictment is insufficient, while the grand jury is before the court, to amend it by their consent in a matter of form, as the name or addition of the party, or the like. 2 Haw. c. 25. $ 98. See 7 G.4. C. 64. § 19. supra.

IX. (3.) Df the allegation of Time, &c.
Time.

On the
- day of in the

- year of the reign, &c.] The averment of time is altogether formal, since it is unnecessary to prove the offence to have been committed at the time alleged in the indictment, unless some time be liinited for the prosecution, or time itself be material to the constitution of the offence; these averments, therefore, convey, in general, little of information either to the defendant or his judges. It is nevertheless a general rule, that the time and place of every material fact must be plainly and consistently alleged; and such a degree of precision does the law exact in this respect, that an uncertainty or incongruity in the description of time and place will vitiate the indictment. 1 Stark. C. P. 54. and the authorities there cited. No indictment can be good without precisely shewing a certain day

of the material facts alleged in it. 2 Haw. c. 25. § 77. Where an

But wh an indictment charges a man with a bare omission, omission only

as not scouring such a ditch, it is said that it needs not shew any is charged.

time because it affirmeth a present evil. 2 Haw. c. 25. $ 79. Night.

And if the offence be done in the night, before midnight, the indictment shall suppose it to be done in the day before; and if it happen after midnight, then it must say it was done the day after.

Lamb. b. 4. c.5. p. 492. Year.

Although the day be inserted, yet, if the year is not likewise

inserted, the indictment is insufficient. 2 Hale, 177. Year of the

It is most regular to set forth the year, by shewing the year of king.

the king ; yet this may be dispensed with for special reasons, if the very year be otherwise sufficiently expressed. 2 Hale, 177.

1 Chitt. Crim. L. 217. Year set out by And if it say, on such a day last past, without shewing in what inference.

year, that is good enough ; for the certainty may be found out by

the style of the sessions. Lamb. 491. Time alleged

But though the day or year be mistaken in the indictment, need not be

yet if the offence were committed in the same county, though proved.

at an other time, the offender ought to be found guilty. 2 Hale, 179.

It is best in indictments to set down the times as truly as can be, though it be not of absolute necessity to the defendant's conviction. 2 Hale, 179.

It is not necessary that the time should be laid according to the truth ; for if it be stated previous to the finding of the indictment, and the place be within the county, or the extent of the court's jurisdiction, a variance between the indictment and evi

dence in the time when the offence was committed will not be material. Keb. 16. 2 Inst. 318. Archbold's Crim. Pl. & Ev. 14.

If the day laid be uncertain or impossible, or if it make the in- The day imdictment repugnant to itself, it is void. — But if the day laid be possible or such as may be made certain, or be a day known, it will be good, repugnant. though not laid expressly. 2 Haw. c. 25. $77.

Where the indictment charged the offence (horse-stealing) to Year of the have been committed " in the 4th year of the reign of king George king may be the fourth,” and the indictment was found at the Sum. Ass. rejected as

. 1 G. H.; after conviction, the judges, on ca. res., held that the words " 4th year of the" might be rejected as surplusage. H. T. 1821, R. v. Gill, C. C. R. 431. But see 7 G. 4. c. 64. $20., infra, and p. 392. R. v. Treherne, p. 382.

If divers offences be laid to have been committed on divers days between such a day and such a day, it is utterly bad. 2 Haw. 6. 25. 82.

In indictments for assaults there need not be either a repetition Adtunc et ibiof the time, or a reference to it by the word adtunc, as the time dem in misfirst laid will be connected to all the subsequent facts. 2 Hale, demeanor. 178.

But in indictments for felony it is otherwise, and especially where In felony. the crime consists of a combination of facts: as in murder, which consists of the assault and stroke; and in robbery from the person, and in other cases. 1 Hale, 178.

Indictment in the time of one king shall serve in the time of Indictment another, and the offender shall be arraigned upon it. 14 Vin. Abr. found in time tit. Indictment. (H. 10.) pl. 5.

of a former

king. And this the rather, because the jury are to find the indictment upon their oaths. Dalt. c. 184.

Upon which ground, namely, because the jury are sworn to The facts had present the truth, it is best to lay all the facts in the indictment better be laid as near to the truth as may be, and not to say, in an indictment according to the

truth. for a small assault (for instance), wherein the person assaulted received little or no bodily hurt, that such an one, with swords, staves, and pistols, beat, bruised, and wounded him, so that his life is greatly despaired of: nor to say in an indictment of an highway being obstructed, that the king's subjects cannot go thereon, without manifest danger of their lives ; and the like: which kind of words, as they are not at all necessary, so they may stagger an honest man upon

his oath to find the fact as so laid. At the hour of nine in the afternoon of the same day.] But it is The hour. not necessary to mention the hour in an indictment.2 Haw. c. 25. $ 76., and if it be stated, no exception is allowed to it. Combe v. Pitt, 3 Burr. 1434. Clarke's case, 1 Bulstr. 203.

Excepting in cases of burglary, where it must be laid, for the Burglary. purpose of shewing that the offence was in the night-time.

In short, every material fact which is issuable and triable must Every material be laid with time and place. It must be laid with a venue for the fact must have sake of trial ; and wherever a venue is necessary, time must also be time and place. mentioned. 5 T. R. 620.

By 7 G. 4. c. 64. $ 20., no judgment upon any indictment or 7G. 4. c. 64. information for any felony or misdemeanor, whether after verdict s. 20. or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved, nor (int. al.) for omitting to state the time at which

S. 20.

to be within a

the time

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7 G. 4. c. 64. the offence was committed, in any case where time is not of the

essence of the offence, nor for stating the time imperfectly, nor Omission, or defective aver

for stating the offence to have been committed on a day subment, of time;

sequent to the finding of the indictment, or exhibiting the inform

ation, or on an impossible day, or on a day that never happened, or of venue.

nor for want of a proper and perfect venue, where the court shall appear by the indictment information to have had jurisdiction over the offence. See the section at large, post, p. 392.

If a statute make an offence committed after a given day triable in the county where the party is apprehended, and authorises the laying it as if committed in that county, and does not vary the nature or character of the offence, it is no objection that the day on which the offence is stated to have been committed in the indictment is before the day the statute mentions, if the offence

were, in fact, committed after that day. E. T. 1831. Time of offence

By 11 G.4. & 1 W. 4. c. 66. $ 24., forgeries may be dealt with, may be proved &c. and laid and charged in any county or place in which the statute, though

offender shall be apprehended or in custody, as if the offence

had been actually committed there. That stat. took effect 21st averred be not July, 1830. On an indictment in Caermarthenshire for a forgery

in the county of Glamorgan, the forgery was alleged to have been committed on the 23 July, 1830, but it was in proof, that it was not committed until after the 21st; and the judges (twelve), on a case, held, that as the forgery was the same offence before the 21st July, 1830, as afterwards, and this statute only entitled the prosecutor to charge in one county what before he must have charged in another, but made no provision for varying the charge, or introducing any additional statement, whatever charge would before the statute have been sufficient in the county in which the offence must then have been laid, will be sufficient in the other county. E. T. 1831, R. v. Treherne, MS. Bayley B. S.C.

1 M. 298. Vi et armis, not With force and arms.] By stat. 37 H. 8. c. 8., it is enacted, that necessary whereas it hath been commonly used in indictments to put in

the same words vi et armis, and in divers of the same indictments to declare the manner of the force and arms, viz. baculis, cultellis, arcubus et sagittis, or such like, where in truth the parties had no manner of such weapons at the time of the offence committed, therefore, for the future, these words or such like shall not of necessity be put in any inquisition or indictment.

But yet where such words are proper and pertinent, it is safe and advisable to insert them, if it be to no other purpose than to

aggravate the offence. 2 Haw. c. 25. g 91. 7 G. 4. c. 64. By 7 G. 4. c. 64. $ 20., the omission of the words “ with force

and arms" is not to be a ground for staying or reversing judg" with force and ment either after verdict or outlawry, or by confession, default, or

otherwise. See post.

S. 20.

arms.

IX. (4.) Df the allegation of place. Averinent of At Appleby aforesaid in the county aforesaid.] No indictment place necessary. can be good, without expressly shewing some place where the

offence was committed, which must appear to have been within the jurisdiction of the courts, and laid in a manner free from all repugnancy. 2 Haw. c. 25. s 83.

con

county, bad.

day of

If a man be stricken in one county and carried into another, Offences partly the indictment shall be found where the death happens. 2 East's in two counties. P. C. 373.

If goods be stolen in one county and carried into another, it may be found in either. By 7 G. 4. c. 64. 5 12., where any felony or misdemeanor shall 7 G. 4. c. 64.

Crime combe committed on the boundary of two or more counties, or within

mitted within the distance of five hundred yards of any such boundary, or shall

boundary of be begun in one county and completed in another, every such county, felony or misdemeanor may be dealt with, inquired of, tried, de begun in one termined, and punished in any of the said counties, the same as if county, comit had been actually and wholly comunitted therein.

pleted in anIn bigamy, the indictment was found in Middlesex, and stated other. the first marriage to have taken place in the county of Indictment, and the second marriage in the county of

and at the

blank left for clusion it stated, “ and the jurors aforesaid, &c. further say, that she said J.J. F. was apprehended on the at - leaving a blank for the place. Judgment being respited after conviction, the judges held unanimously that the indictment was bad, for the Middlesex grand jury upon the face of it had no jurisdiction. H. T. 1834, R. v. J.J. Fraser, cor. Arabin Serjt. 0. B. Sept. Sess. 1833. MS.

But a mistake of the place will not be material upon the evi- Within the dence, on not guilty pleaded, if the fact be proved at some other county suftiplace in the same county. 2 Haw. c. 25. § 84.

cient, and

variance not And it is not sufficient that the county be expressed in the

important. margent, but the vill where the offence was committed must be alleged to be in the county named in the margent, or in the county aforesaid, which seems to be sufficient where but one county is named before ; but to be uncertain where a county is named in the body of the indictment different from that in the margent. 2 Hale, 180. 2 Haw. c. 25. § 34.

In a case for riot, where two parishes had been named in the Parish aforepreceding part of the indictment, it proceeded to charge defendants said, held to re

late to parish with beginning to demolish, &c. a certain house, situate in the

last mentioned. parish aforesaid." An objection having been taken for this cause, it was held by Park J., after consulting with Gaselee J., that the parish aforesaid must relate to the last-mentioned parish, and sentence of death was recorded against the prisoner.

West. Spr. Cir. 1832, R. v. Richards, 1 Mood. 8; Rob. 177.

Anciently the fact must have been laid in some place whence a visne may come; and a visne may come from a ward, parish, hamlet, burgh, manor, castle, or even a forest, or other place known out of a town: but it cannot come from a thing incorporeal, and therefore not from a liberty. But see 7 G. 4. c. 64. § 20., suprà, p. 381.

The place must be correctly stated, if the statute on which the Place, where indictment is framed gives the penalty to the poor of the parish penalty goes to where the crime was committed, for in such case the parish laid in poor of parish. the indictment must be proved. 2 Russ. 717.

So, in a road indictment against a parish, the part of the road Road indictout of repair must be proved to be within the parish as laid in the ment.

So, where offence is connected with a particular place, as in Offence, local. burglary, arson, &c., the place must be truly stated, so that the proof may correspond with it.

indictment. 16.

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