Addition of place.

Hamlet.

Parish.

Of a wife.

Place.

Addition of present estate, &c. necessary.

Late place of residence suffi

cient.

Voidable on

dictus only, and not to the first name, the fault will be fatal; and it is so great a fault to put no addition to the first name, that where several are indicted, such an omission, in respect of one of them, makes the indictment vicious as to all. 2 Haw. c. 25. § 70. Semple's case, 1 Leach, 420. Ante, p. 376.

If there be two towns in a county of the same principal name, with different additions to distinguish them from one another, as Great Dale and Little Dale, or Upper Dale and Lower Dale, and the defendant named only of the principal town without any addition, as of Dale only, the defendant may plead that there are two Dales in the same county, and none without an addition. But if there be two towns of the same name in a county, without any addition to distinguish them, it may be sufficient in such case to name the defendant generally of either of such towns, without adding any thing to distinguish it from the other. 2 Haw. c. 23. § 121. 1 Chitt. Crim. L. 209.

If the defendant live in a hamlet of a town, it is said to be in the election of the party to name him either of the hamlet or of the town. 2 Haw. c. 23. § 122.

But the addition of a parish, if there be two or more towns in it, is not good; but if there be but one town, the addition of parish is good; and a parish shall be intended to contain no more than one town, unless the contrary be shewn. 2 Inst. 669. 2 Haw. c. 23. $120.

The addition of the place of habitation of a wife is sufficiently shewn by shewing that of the husband; because it shall be intended that the wife lives where the husband does. 2 Haw. c. 23. § 124.

If the defendant live in a place known by a special name, and lying out of any town or hamlet, he may be well named of such place but if he live in any place known within a town or hamlet, it is said to be safest to name him of the town or hamlet. 2 Haw. c. 23. § 123.

The addition of the estate, degree, or mystery, ought to be as the defendant was of at the day of the indictment brought, and not late of such a degree or mystery; but it is a good addition to name the defendant late of such a town or place, because men do often remove their habitation. 2 Inst. 670.

So, in the case of Lord Balmerino, after the rebellion in the year 1745, the indictment charged that Arthur Lord Balmerino, late of the city of Carlisle, in the county of Cumberland, did so and so; Lord Balmerino objected, that this was no title belonging to him upon which the Lord High Steward informed him, that these words were not made part of his title, but only the addition of place which the law for good reasons requires to be inserted by way of description of defendants in all indictments, and is most commonly taken from that place where the crime is by such indictment charged to have been committed. Lord Balmerino's Trial, 18 Howell's St. Tri. 461.

Shall be void.] This being a judgment in law, is interpreted to writ of error or be made void by a writ of error, or by the plea of the party plea. coming in upon a capias utlagatum: for though the statute saith they shall be void, yet they are but voidable by a writ of error or plea. 2 Inst. 670.

By the exception of the party.] But if a trader be sued by his degree, the writ shall not abate, unless he shew that he has a higher degree. Horsepoole v. Harrison, 1 Str. 556. Smith v. Mason, 2 Str. 816. 2 Ld. Raym. 1541.

How writ shall abate for want

of addition.

So, if the defendant appear upon process, and plead, taking Defendant no advantage thereof by exception, he hath lost the benefit must take the hereof: but it seemeth that the bare appearance of the party, exception in without plea, doth not solve the want of a good addition. 2 Haw. time. 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 misnomer of the defendant's Christian name, the court will not dismiss him, but cause him to be indicted de novo by his true name, and arraign him again on such new indictment: for regularly a defendant shall not be dismissed for an insufficiency in an indictment, or an appeal for a capital crime; but that as he that pleads a misnomer of either his surname or Christian name must in the plea set 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.

Defendant not

to be discharged on account of

the insufficiency of the

indictment, but may be indicted afresh.

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 dignity. by 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.

forth.

In indictments of treason, felony, &c. against the greater nobi- How the addility, (dukes, marquises, earls, viscounts, and barons,) the estate tion shall be set 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: -J. S. pannarius de London in com' civitatus 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.

G. 4. c. 64. s. 19.

No misnomer nor want of

addition or

The proceedings in regard to the misnomer of a defendant, or the omission or mistake of his addition, are now much simplified; for by 7 G. 4. c. 64. § 19., for preventing abuses from dilatory pleas, it is enacted, that no indictment or information shall be 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 in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and shall

to abate indictment;

but to be forthwith amended.

Misnomer of one, where

several are joined.

Time.

Where an omission only is charged. Night.

Year.

Year of the king.

Year set out by inference.

Time alleged need not be proved.

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 indictments. 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.

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 limited for the prosecution, or time itself be material to the constitution of the offence; these averments, therefore, convey, in general, little of informa tion 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.

But where an indictment charges a man with a bare omission, as not scouring such a ditch, it is said that it needs not shew any time because it affirmeth a present evil. 2 Haw. c. 25. §79.

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.

Although the day be inserted, yet, if the year is not likewise inserted, the indictment is insufficient. 2 Hale, 177.

year

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

And if it say, on such a day last past, without shewing in what year, that is good enough; for the certainty may be found out by the style of the sessions. Lamb. 491.

But though the day or year be mistaken in the indictment, yet if the offence were committed in the same county, though 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

repugnant.

Year of the

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, though not laid expressly. 2 Haw. c. 25. § 77. Where the indictment charged the offence (horse-stealing) to have been committed "in the 4th year of the reign of king George the fourth, and the indictment was found at the Sum. Ass. 1 G. 4.; 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. c. 25. § 82.

king may be rejected as surplusage.

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.

found in time

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. tit. Indictment. (H. 10.) pl. 5.

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 present the truth, it is best to lay all the facts in the indictment as near to the truth as may be, and not to say, in an indictment 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, with out 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.

of a former king.

The facts had better be laid according to the

truth.

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 be laid with time and place. It must be laid with a venue for the sake of trial; and wherever a venue is necessary, time must also be mentioned. 5 T. R. 620.

Every material fact must have time and place.

By 7 G.4. c. 64. § 20., no judgment upon any indictment or 7 G. 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

7 G. 4. c. 64. s. 20.

Omission, or defective aver

the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subment, of time; sequent to the finding of the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened, nor for want of a proper and perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence. See the section at large, post, p. 392.

or of venue.

Averment of

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.

By 11 G. 4. & 1 W. 4. c. 66. § 24., forgeries may be dealt with, &c. and laid and charged in any county or place in which the offender shall be apprehended or in custody, as if the offence had been actually committed there. That stat. took effect 21st 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 2d 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.

With force and arms.] By stat. 37 H. 8. c. 8., it is enacted, that 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. § 91.

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 judgment either after verdict or outlawry, or by confession, default, or otherwise. See post.

IX. (4.) Df the Allegation of Place.

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. § 83.