Information should be read over to the informant. General form of information on oath. It is strongly recommended that the Magistrate should on all occasions, when taking informations, either upon oath or otherwise, (especially from unlettered persons,) carefully read over and explain them to the informants, so as to satisfy himself that they are perfectly understood; because it not unfrequently happens that ignorant persons undesignedly mistake and confuse the facts, so as to mislead the Magistrate's clerk, and cause the information, in the hurry of business, to be incorrectly prepared. Many cases have failed at the hearing from this simple cause; the prosecutor finding out, when too late, that he had put in a word too much, or a word too little; and the necessity of beginning the proceedings de novo, with a certain loss of time and expense, is very injurious to a poor man, and could rarely happen if due attention were paid to the above suggestion. A general form of information upon oath, as well as by way of exhibit, is given herewith:- :- New South to wit. No. 1. The information and complaint of A. B., of in the Colony of New South Wales, yeoman, taken and made upon oath before me, the undersigned, one of Her Majesty's Justices of the Peace for the said Colony (or City, as the case may be,) this at day of in the year of our Lord one thousand eight hundred and in the said Colony, day of who saith that on the last, at in the Colony aforesaid, C. D., in the said Colony, laborer, did unlawfully, &c., (here state the offence committed, so as to come within the terms of the statute under which the information is laid,) contrary to the statute in that case made and provided; and thereupon the said A. B. prayeth that the said C. D. may be summoned to answer the said charge according to law; (or, in the case of a warrant being issued in the first instance, may be apprehended for the said offence, and dealt with according to law.) Taken and sworn before aforesaid, the day and year (Informant's signature.) (Justice's signature.) in the year of our Lord one thousand at eight hundred and the said C. D., on the at day of last, in the said Colony, did unlawfully, &c., (here state the offence committed, so as to be within the terms of the statute under which the information is laid,) contrary to the statute in that case made and provided; and thereupon the said A. B. prayeth that the said C. D. may be summoned to answer the said complaint. Exhibited before me, on the day and year and at the place first above mentioned. (Informant's signature.) (Justice's signature.) Within what should be laid. Information before Justices of the Peace under time information modern Acts, are for the most part required to be laid within three calendar months after the commission of the offence; but where no time is specially limited for laying the information, it must be laid within six calendar months from the time when the matter of such information arose. (a) In cases where three calendar months have already expired, the statute under which the information is proposed to be laid, should be carefully consulted, as any mistake upon this point, which should cause the proceedings to be delayed beyond the period allowed by the particular statute, would render them liable to be overturned at any stage. The term month in a penal statute, unless expressly stated otherwise, is construed by the superior Courts to mean lunar month. (b) And with respect to the day on which the offence is committed, the latter opinion appears to be, that (a) 11 & 12 Vict., c. 43, s. 11. Interpretation of "month" and day." By whom com ation should be made or laid. it is not included in the calculation of the time. But it is obviously improper to delay the proceedings until the last day, if it can possibly be avoided. There are some few old statutes which require the conviction to be made within a specified period; in which case it will of course not be sufficient to lay the information merely within the limited time. In general the party injured should be the plaint or inform- person to go before the Magistrate and make the complaint or lay the information; it may however be laid by the counsel or attorney of the informant, or any person authorised in his behalf. The statute which authorises two Justices to try cases of common assault expressly requires the complaint to be made by the party aggrieved: (a) but it has been considered that, even under this statute, the information may be laid by another person under particular circumstances: as in the case of an assault upon an infant of tender years, an idiot, &c., where there must be a failure of justice if the parent, guardian, or next friend of the party is precluded from taking the necessary steps to bring the offender to trial. When informer is entitled to a portion of the In cases under penal statutes, where the informant is entitled to a portion of the penalty, penalty, the in- and where the proceedings are in the nature of be laid by another qui tam informations, it is proper for the informaperson not inter- tion to be laid by some person whose evidence is formation should ested. not necessary to prove any part of the case, as the fact of his being interested in the penalty might affect his testimony as a witness. (b) For although it may be considered that the "Act for improving the Law of Evidence," commonly called "Lord Denman's Act," (c) has obviated this objection by providing, that no person offered as a witness shall be excluded from giving evidence by reason of incapacity from crime or (a) 9 Geo. 4, c. 31, s. 27. (b) 11 & 12 Vict., c. 43, s. 15. (c) 6 & 7 Vict., c. 85. interest, notwithstanding such person may or shall have an interest in the matter in question, or in the event of the proceedings; yet as it is also provided, that the Act shall not render competent any party to any proceeding individually named in the record, it will at all times be the safer course not to rest the case upon the testimony of the informer. In many local Acts, incompetency, on the ground of being interested in the penalty, is expressly cured; but as those Acts display so much variety in their forms, and in their mode of getting over legal difficulties, it is hardly necessary to remind the practitioner that he should, in no case, initiate a proceeding under a Local Act, without a careful examination of its provisions. When summary be taken again It is said that a summary proceeding can only be instituted against a person who is actually proceedings ma present, and committing, or aiding in committing a defendant not the offence; but this rule admits of many excep- present. tions in cases of summary proceedings before Magistrates, where the principal though absent when the offence is actually committed, may yet be legally summoned and convicted (a). maxim qui facit per alium facit per se will clearly apply under these circumstances. The be convicted and Married Women and Infants above seven years Married women of age, may be the subjects of conviction and and infants may punishment, and may be prosecuted for penalties punished. in respect of any injuries committed by them, under the recent Acts before alluded to, and generally for all trespasses and wrongful acts they may be guilty of, if unconnected with contract. It is said, however, that an infant under the age of fourteen is presumed by law not to be doli capax, although that presumption may be rebutted by facts clearing shewing that at the time of committing an offence he was capable of distinguishing between good and evil, in which case he is liable to be convicted and punished. (b) (a) Mitchell v. Torup, Parker's Rep., 227; 1 Tent. 190. (b) York's case, Fost. 70. Several defendants joined in charge must be separately convicted. What the information should contain. But it has been doubted, whether as infants and married women cannot legally contract, they can be properly convicted, as servants refusing or neglecting to perform the duties or engagements entered into by them. For if an intended contract for service be, in fact, nugatory by reason of infancy or coverture, no legal proceedings can be taken to enforce such supposed contract, or to punish for its breach or non-performance. Some degree of doubt was entertained under the clause of "Lord Lansdowne's Act," (a) empowering two Magistrates to hear and determine case of common assault, as to their power of imposing separate penalties of £5, on each defendant where several were jointly guilty of an assault; and it was the practice at many Police Offices to make a joint conviction of two or more defendants, and to award one penalty with the costs of conviction to be jointly paid by such defendants: and when one of the defendants was ready to pay his share of the penalty, but one of the others were either unwilling, or unable to pay any part of it, the Magistrates were under the necessity of telling the former, that he must either pay the whole penalty for himself and his companions in guilt, or accompany them to prison. This, it will readily be admitted, was a very improper state of things; and a decision of the Court of Queen's Bench has settled the question, and made it imperative on Justices to make a separate conviction, and impose a separate fine, and amount of costs to be paid by each defendant, when two or more are found guilty of committing a joint offence. And although this decision was made upon a conviction for a common assault, yet the same principle will apply equally to all other offences under penal statutes (b). The complaint or information should contain an exact description or statement of the offence, (a) 9 Geo. 4, c. 31. (b) Morgan v. Brown, 6 Nev. & Man. 57 S. C. 4 Ad, & E. 515. |