Page images
PDF
EPUB

case.

(Partly so). So, where an injury is partly local, and partly transitory, and a

precise local decription is given, a variance in proof of the place

is fatal. 2 Russ. 717. Place laid

In a case at Monmouth Sum. Ass. 1808, the prisoner's counsel which does not

proved that there was no such parish in the county of Monmouth exist.

as the parish of Saint Mary's laid in the indictment. It was contended, on the other side, that it is no longer necessary in such an indictment (a) to lay any parish, as the jury are to come from the body of the county. Lawrence J. said he would save the point for the opinion of the judges. The prisoner was acquitted on the merits. R. v. Phillips, 3 Campb. 77.

R. v. Leadbeater, Staffordshire Sum. Ass, 1818. MS. The indictment charged the burglary and larceny to have been com. mitted in the parish of Aldrewas, Com. Staff. Upon cross-examination of one of the witnesses for the prosecution, it appeared that that there was no such parish as Aldrewas within the county of Stafford, the parish in which the offence was committed being Alrewas. —Garrow B. held the indictment insufficient, and directed an acquittal, upon the authority of a case reserved from the western circuit, and cited by Campbell (Amicus Curie), in which the judges held (notwithstanding the doubt expressed by Lawrence J. in

R. v. Phillips, suprà), that it is necessary in every indictment to But see next state a parish or vill within the county, and that upon proof that

there is no such parish within the county as is laid in the indictment, the prisoner must be acquitted.

It is no objection on not guilty that there is no such place in the county as that in which the offence is stated to have been committed. H. T. 1832.

In an indictment for setting fire to a stack of pulse, a mistake as to the place where the offence was committed is immaterial:

the charge is transitory, not local. H. T. 1832. Non-existence One count in an indictment stated, that the prisoner, at the parish of a place laid, of Normanton-in-the-Woulds, in the county of N., maliciously, can be taken

&c. did set fire to a certain stack of beans of J. S.: on not guilty only by plea in pleaded, it appeared there was no such parish, and two points saved: abatement.

one, whether the offence was local; the other, whether, there being Burning a

no such parish, was an objection on not guilty; and the judges

(Ld. Lyndhurst and Bolland B. absent) were unanimous that the local offence. offence had nothing of locality in it, and that there being no such

place in the county can only be taken advantage of on a plea in abatement, and conviction right. H. T. 1832, R. v. Woodward, MS. Bayley B. S. C. 1 M. 323.

See also S.P., R. v. Dowling and another, being a case of high

way robbery, cited 2 Russ. 717. London too

if the offence be laid in London generally, it will be too genegeneral, ral, because of its largeness : there must be some parish stated,

with some addition, (as St. Mary, Wood Street,) but the ward need not be stated, because a ward is in London as a hundred is in a county, and the hundred need not be stated. 2 Haw. c. 23. $ 92.

Sid. 325. Mackalley's case, 9 Rep. 66. b. Mere name of The mere name of the place alone without the description will place not suf- be bad : as “ late of W. in the county of B. with force and arms ficient.

at the parish aforesaid” is bad: W. not having been described as

stack not a

(a) 43 G. 3. c. 58. (Ld. Ellenborough's Act), now repealed.

a parish; and no other parish having been before laid. R. v. Matthew, 5 T. R. 162.

It is stated above, that the offence must be proved to have been committed at some place within the county alleged in the indictment; but in the particular case of an offence being committed during a journey or passage, a certain degree of latitude is allowed by the following enactment:

By 7 G. 4. c.64. $ 13., where any felony or misdemeanor shall Offences to be committed on any person, or on or in respect of any property in persons or proor upon any coach, waggon, cart, or other carriage whatever, em

perty in or ployed in any journey, or shall be committed on any person, or on &c. employed

upon coaches, or in respect of any property on board any vessel whatever em- on journies, or ployed on any voyage or journey upon any navigable river, canal, vessels in inor inland navigation, such felony or misdenieanor may be dealt land navigawith, inquired of, tried, determined, and punished in any county, tried in any through any part whereof such coach, waggon, cart, carriage, or

county vessel shall have passed in the course of the journey or voyage through which during which such felony or misdemeanor shall have been com- the coach, &c. mitted, in the same manner as if it had been actually committed or vessel has in such county; and in all cases where the side, centre, or other passed ; part of any highway, or the side, bank, centre, or other part of any or, if the sides, such river, canal, or navigation, shall constitute the boundary of &c. of a canal; any two counties, such felony or misdemeanor may be dealt with, different couninquired of, tried, determined, and punished in either of the said ties, may be counties through, or adjoining to, or by the boundary of any part tried in either. whereof such coach, waggon, cart, carriage, or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.

So, where an offence is committed near the boundary of a county, A felony or or begun in one county and completed in another, the stat. 7 G. 4. misdemeanor c. 64. § 12. enacts, that where any felony or misdemeanor shall committed on

the borders of be committed on the boundary or boundaries of two or more counties, counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one county and com- or begun in one pleted in another, every such felony or misdemeanor may be dealt county and with, inquired of, tried, determined, and punished, in any of the completed in said counties, in the same manner as if it had been actually and tried in either. wholly committed therein.

It has been held, that the provisions of $12., as to boundaries of counties, apply only to county trials at the assizes or sessions, and not to trials before courts of limited jurisdiction. The prisoner was brought to trial before the sessions for the Town and Borough of Southwark, but it appeared the crime was committed in London, though within five hundrcd yards of Surrey and the Southwark jurisdiction : it was adjudged, that this case did not fall within the statute, and that the prisoner was properly acquitted. R. y. Welsh, 1 R. & M. 175.

IX. (5.) The Description of the Indictor, or other

Person named in the Indictment, In and upon one George Harrison.) Wherever the person injured Name of person is known to the jurors, his name ought to be put in the indictment. injured. 2 Haw. c. 25. $71.

VOL. III.

C C

R. v.

Person un- But if they know not his name, an indictment for the murder of known.

a person unknown, or for stealing the goods of a person unknown,

is good. 2 Hale, 181. See h. v. Robinson, post, p. 388. Designation of Prisoner was convicted on an indictment for the murder of infant,

“ a certain female child whose name is to the jurors unknown.” It appeared that prisoner was delivered of an illegitimate child at her lodgings without any secrecy, and when the child was twelve days old she carried it away, and drowned it by throwing it into a canal. The child had not been baptised. It appeared, that during her confinement she had more than once called the child “ Mary Anne,” and also "little Mary," and had said that she should like it to be named Mary Anne. The prisoner's master (who was the father) was stated to be a Baptist. An objection was taken, that the child had acquired a name by reputation, and therefore that the indictment was not proved; and R. v. Walker, 3 Camp. 264.

Clarke, C. C. R. 358., and R. v. Sheen, 2 C. & P., were cited. Judgment being respited, and a case reserved, the judges held unanimously that the indictment was proved, and the conviction right. M. T. 1833, R. v. Mary Smith, cor. Gurney B., Stafford

Sum. Ass. 1833. MS. No addition Also, there is no need of an addition of the person upon whom necessary.

the offence is committed, unless there be a plurality of persons of the same name; neither then is it essential to the indictment, though sometimes it may be convenient for distinction sake to add it. 2 Hale, 182.

On an indictment for assaulting A., if there are two persons, father and son, named A., and the assault is upon the son, it need not be stated in the indictment that the assault was upon A. the younger.

Indictment for assaulting Elizabeth Edwards. It appeared that there were mother and daughter of that name, and that the assault was upon the daughter: it was urged that the description Elizabeth Edwards, without addition, applied only to the mother ; but Holroyd J. at the trial, and the court of K. B. afterwards, thought otherwise, and defendant was convicted and sentenced.

R. v. Peace, 3 B. & A. 579. False descrip

Adding a false description to the name of a person who must tion of person

be named is fatal, though it were not necessary to give him any named in in- description. E. T. 1831. dictment.

In bigamy, the second wife was called Elizabeth Chant, widow; she was in fact and by reputation a spinster, and the judges held this misdescription fatal, though it was not necessary to have stated more than her name. E. T. 1831, R. v. Deeley, MS.

Bayley B. $. C. 1 M. 303. h G. 4. c. 64. By 7 G.4. c. 64. 820., the designation of any person mentioned Designation of in the indictment or information by a name of office or other

descriptive appellation, instead of their proper name, is not to be in indictment.

a ground for staying or reversing judgment after verdict or outlawry, or by confession, default, or otherwise. See post, p. 392.

In the peace of God and of our said lord the king then and there being.] It is usual to allege this, but not necessary, and possibly not true, for he might be breaking the peace at the time. 2 Hale, 186. See tit. Larceng.

person named

In the peace,

&c.

IX. (6.) The Description of the Dffence. The aforesaid George Harrison not having any weapon then drawn, Indictment on nor the aforesaid George Harrison having first stricken the said offence created John Armstrong.] An indictment grounded upon an offence made by statute must by act of parliament must by express words bring the offence

be brought subwithin the substantial description made in the act of parliament, it.

stantially within and those circumstances mentioned in the statute to make

up
the

Offence must offence shall not be supplied by the general conclusion against the be brought form of the statute. 2 Hale, 170.

within the By 7 G. 4. c. 64. \ 21., where a statute has created an offence, statute. or increased the punishment, the indictment or information shall, Following after verdict, be held sufficient if it describe the offence in the words of statute

sufficient after words of the statute.

verdict. But there is no necessity in an indictment on a public statute

Statute need to recite such statute ; for the judges are bound ex officio to take

not be recited. notice of all public statutes. 2 Haw. c. 25. $ 100.

Although the indictment need not recite a general penal statute, yet it must bring the fact within the express prohibition of the statute, otherwise the conclusion contra formam statuti, and the implication thereof, will not aid the indictment, but it will be insufficient. 2 Hale, 192.

Yet, if the prosecutor take upon him to recite it, and materially Varying from vary from a substantial part of the purview of the statute, and the words of conclude against the form of the statute aforesaid, he vitiates the the statute, if

recited, is fatal. indictment. 2 Haw. c. 25. 100. Aliler, where the mistaken words may be rejected as surplusage. R. v. Haworth, 3 Stark. 27. antè, tit. Ebeat.

Also, it seems to be generally agreed, that a misrecital of the place or day at which the parliament was holden vitiates an indictment. 2 Haw. c. 25. § 104.

And it hath been adjudged, that a misrecital of the title of a statute is fatal. 2 Haw. c. 25. § 101.

There is no need to allege in an indictment that the defendant In indictment is not within the benefit of the provisoes of the statute ; although not necessary the same may be necessary in a conviction ; for since no plea can

to negative an be admitted to a conviction, and the defendant can have no remedy in a proviso;

exception, &c. against it, but from an exception to some defect appearing in the face of it, and all the proceedings are in a summary manner, it is but reasonable that such a conviction should have the highest certainty. 2 Haw. c. 25. $ 113. 2 Hale, 170, 171.

And even in a conviction, where the benefit is given by a pro- nor in convicviso in the statute subsequent to the enacting clause, it is not tion, where the necessary to negative the benefit. 2 Str. 1101.

excep.ion is on There are several words of art which the law hath appropriated a subsequent for the description of the offence, which no circumlocution will sup- Feloniously. ply, as feloniously, in the indictment of any felony ; burglariously, in an indictment of burglary; and the like. 2 Hale, 184.

And if a man be indicted that he stole, and it is not said feloniously, this indictment imports but a trespass. 2 Hale, 172,

With a certain sword drawn.] Yet if the party were killed Weapon. with another weapon, it maintains the indictment; but if it were with another kind of death, as poisoning or strangling, it doth not maintain the indictment upon evidence. 2 Hale, 185.

Death from The indictment charged the prisoner, that with a certain piece being knocked of brick, &c. he struck and beat deceased, thereby giving him a down on a

mortal wound, of which he died. It appeared that prisoner struck brick, averment deceased with his fist, who therepon fell upon a piece of brick, of a blow with a brick, bad.

which was the cause of his death. On case reserved, the judges were unanimous, that the means of death were not truly stated, and a pardon was recommended. M. T. 1825, R. v. Kelly,

1 R. & M. 113. Death from a Indictment that prisoner assaulted deceased, and gave him divers fall by being mortal blows, &c. of which he died. The evidence was, that priknocked down, soner knocked deceased down, and that in falling on the ground averment of

deceased received a mortal wound: a case was reserved, and the death from blows, bad. judges held, that the cause of death was not truly stated, there

being no charge of knocking the deceased to the ground, from which the mortal wound proceeded. E. T. 1826, R. v. Thomp

son, 1 R. & M. 139. Its value.

Of the value of five shillings.] Regularly it ought to set forth the price of the sword or weapon, or else say, of no value; for the weapon is a deodand forfeited to the king, and the township shall be charged for the value, if delivered to them; but this seemis not

to be essential to the indictment. 2 Hale, 185. The hand in Which he the said John Armstrong in his right hand then and which it was. there had and held.] It must shew in what hand he held his sword.

2 Hale, 185. The manner of In and upon the right side of the belly near the short ribs of him the offence.

the said George Harrison.] There must be a certainty of the offence committed, and nothing material shall be taken by intendment or implication; but the special manner of the whole fact

ought to be set forth with certainty. 2 Haw. c. 25. $ 57. The part

In the case of murder it ought to shew in what part of the body wounded; the person was wounded : and therefore, if it be on his arm, or

hand, or side, without saying whether right or left, it is not good.

2 Hale, 185. and no repug

In stating the substance of the fact, there must be no repugnancy in the material part; but if there be enough well Jaid to maintain the indictment, judgment may be given on so much as is good. 2 Haw. c. 25. $ 55. et seq. Reg. v. Ingram & ux. 1 Salk.

384. Benfield v. Saunders, 2 Burr. 985. Disjunctive The offence must not be laid disjunctively, as, he murdered or allegations bad. caused to be murdered. 2 Haw. c. 25. $ 58. Value of goods If theft be alleged in any thing, the indictment must set forth stolen.

the value of the thing stolen, that it may appear whether it be

grand or petit larceny. 2 Hale, 183. What goods. In like manner, an indictment that the defendant took and

carried away such a person's goods and chattels, without shewing

what in certain, as one horse, one cow, is not good. 2 Hale, 182. Number.

So 20 sheep and ewes is bad; it ought to be how many of each

sort. 2 Hale, 183. The owner. The owner should be named : and if the thing stolen be a Goods and

living thing, it should be named by its name only; if it be a chattels.

dead thing, it should also be laid bona et catalla. Lamb. b. 4.

c. 5. 476. Owner must R. v. Robinson, Durham Sum. Ass. 1817, 1 Holt's Rep. 595. be named, if On an indictment, laying the property in persons by name, and in known.

another count in persons unknown, the evidence failed in shewing

nance.

« PreviousContinue »