PLEADING AND EVIDENCE, GENERALLY. PART I. PLEADING, GENERALLY. CHAPTER I. INDICTMENT. SECT. 1. What, and in what Cases it lies, 1. 2. Against whom it lies, 3. 3. Form of it, 16. 4. Joinder of two or more Defendants in one Indictment, 54. 6. Within what Time the Bill must be preferred, 57. 8. In what Cases quashed, 60. SECT. I. Indictment, what, and in what Cases it lies. AN indictment is a written accusation of one or more persons of a crime, preferred to, and presented upon oath by, a grand jury. It lies for all treasons and felonies, for misprisions of treason and felony, and for all misdemeanors of a public nature at common law. 2 Hawk. c. 25, s. 4. If a statute prohibit a matter of public grievance, or command a matter of public convenience (such as the repairing of highways, or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode or proceeding. Ib. R. v. Davis, Say. 133. and see R. v. Sainsbury, 4 T. R. 457. And if the statute specify a mode of proceeding different from that by indict B ment; then, if the matter were already an indictable offence at common law, and the statute introduced merely a different mode of prosecution and punishment, the remedy is cumulative, and the prosecutor has still the option of proceeding by indictment at common law, or by the mode pointed out by the statute; R. v. Robinson, 2 Burr. 799. R. v. Wigg, 1 Ld. Raym. 1165, 2 Salk. 460. R. v. Balme, 1 Cowp. 648. R. v. Carlisle, 3 B. & A. 161. and see 2 Hale, 191. 1 Saund. 195, n. (4); or even if a statute prohibit, under a penalty, an act which was before lawful, and a subsequent statute, R. v. Boyal, 2 Bur. 832, or the same statute in a subsequent substantive clause ordain a mode of proceeding for the penalty different from that by indictment, the prosecutor may, notwithstanding, proceed by indictment upon the prohibitory clause, as for a misdemeanor at common law; or he may proceed in the manner pointed out by the statute, at his option; 2 Hale, 171. R. v. Wright, 1 Burr. 543; and see R. v. Jones, 2 Str. 1146. R. v. Harris, 4 T. R. 205; but if the manner of proceeding for the penalty be contained in the same clause which prohibits the act, the mode of proceeding given by the statute must be pursued, and no other. R. v. Robinson, 2 Bur. 805. R. v. Buck, 2 Str. 679. If a statute make that felony which before was a misdemeanor only, the misdemeanor is merged, and cannot be prosecuted; but, if a new punishment, or new mode of proceeding merely be directed, without altering the class of the offence, the new punishment, or new mode of proceeding, is cumulative, and the offender may be indicted as before for the common law misdemeanor. R. v. Carlisle, 5 B. & 4. 161. Where a statute enabled the King in council to make certain orders relating to quarantine, a disobedience of these orders was holden to be a misdemeanor at common law, and indictable as such. R. v. Harris, 4 T. R. 202. So, where a corporation were authorized by a public statute to make a towing path on the side of a river, was holden to be a misdemeanor at common law to obstruct the corporation in the execution of the powers given them by the statute, and of course indictable. R. v. Smith, Doug. 441. See Com. Dig. Indictment, (D). 1 Russell, 44—49. But an indictment will not lie for a mere private injury against an individual: as for enticing away his apprentice; R. v. Daniel, 1 Salk. 380; entering his close, digging the ground, erecting a shed thereon, expelling him and keeping him out of possession; R. v. Storr, 3 Bur. 1698. R. v. Bake, Id. 1731; pulling the thatch off a dwelling-house of which he was in peaceable possession; R. v. Atkins, 3 Bur. 1706, 1707; or the like: the remedy for injuries of this description is by action only, unless they be accompanied by circumstances which amount to a breach of the peace. Anon. 3 Salk. 187. So, an indictment will not lie for the infringement of rights which are merely private, though regulated by a public statute; R. v. Richards, 8 T. R. 634; nor for an act prohibited by a private statute, which tends merely to the damage of a particular individual; R. v. Parkin, 1 Sid. 208, 209; nor will it lie for a mere breach of the bye laws or customs of a corporation. R. v. Sharpless, 4 T. R. 777. R. v. Gorge, 3 Salk. 188. See Com. Dig. Indictment, (E). 1 Russ. 49-52. SECT. 2. Against whom an Indictment lies. AN indictment lies against all persons who actually commit, or who procure or assist in the commission of crimes, or who knowingly harbour an offender; for each, in contemplation of law, is guilty, and liable to punishment according to the part which he takes in the perpetration of the offence. The capability of committing crimes, however, pre-supposes an act of understanding, and an exercise of will; and, therefore, as no person can be excused from the penalties attaching upon the disobedience of the law, unless expressly designated and exempted by the law; the law has defined what persons and actions are privileged or exempted from the severity of the general punishment of penal laws, in respect of their incapacities or defects, whether natural, affected, accidental, or in respect of civil subjection. We proceed to consider the liability of the respective parties to an offence, and the several grounds of exemption from punishment, under the following heads: Principals in the first degree]-The general definition of a principal in the first degree is, one who is the actor or actual perpetrator of the fact. 1 Hale, 233. 615. But it is not necessary that he should be actually present when the offence is consummated; for if one lay poison purposely for another, who takes it and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree. Vaux's case, 4 Co. 44 b. Fost. 349. So, it is not necessary that the act should be perpetrated with his own hands; for if an offence be committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal in the first degree. See R. v. Giles, R. & M. 166. Thus, if a child under the age of discretion, or any other instrument excused from the responsibility of his actions by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of murder, or any other crime, the inciter, though absent when the fact was committed, is, ex necessitate, liable for the act of his agent, and a principal in the first degree. Fost. 340. 1 East, P. C. 118. 1 Hawk. c. 31, s. 7. R. v. Palmer, 1 N. R. 96, 2 Leach, 978. But if the instrument be aware of the consequences of his act, he is a principal in the first degree, and the employer, if he be absent when the fact is committed, is an accessary before the fact; R. v. Stewart, R. & R. 363; or, if he be present, a principal in the second degree. Fost. 349. Principals in the second degree]-Principals in the second degree are those who are present aiding and abetting at the commission of the fact. Presence in this sense is either actual or constructive. It is not necessary that the party should be actually present, an ear or eye witness of the transaction; he is, in construction of law, present aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise. Thus, if he be outside the house watching to prevent surprise, or the like, whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree. Fost. 350. See R. v. Borthwick et al. 1 Dougl. 207. R. v. Gogerley, R. & R. 343. R. v. Owen, R. & M. 96. But he must be sufficiently near to give assistance; R. v. Stewart, R. & R. 363; and the mere circumstance of a party going towards a place where a felony is to be committed, in order to assist to carry off the property, and assisting in carrying it off, will not make him a principal in the second degree, unless, at the time of the felonious taking, he were within such a distance as to be able to assist in it. R. v. Kelly, R. & R. 421. So, where two persons broke open a warehouse, and stole thereout a quantity of butter, which they carried along the street thirty yards, and then fetched the prisoner, who, being apprised of the robbery, assisted in carrying away the property, it was holden that he was not a principal, but only an accessary. R. v. King, R. & R. 332. See R. v. M'Makin, Ib. And although an act be committed in pursuance of a previous concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance, at the time when the offence is com- . mitted, are not principals, but accessaries before the fact. R. v. Soares, R. & R. 25. R. v. Davis, Id. 113. R. v. Else, Id. 142. R. v. Badcock, Id. 249. But presence during the whole of the transaction is not necessary; for instance, if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are, nevertheless, all guilty as principals. R. v. Bayley, R. & R. 446. See 2 East, P. C. 768. There must also be a participation in the act; for although a man be present whilst a felony is committed, if he take no part in it, and do no act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or apprehend the felon. 1 Hale, 439. Fost. 350. It is not necessary, however, to prove that the party actually aided in the commission of the offence; if he watched for his companions, in order to prevent surprise; or remained at a convenient distance, in order to favour their escape, if necessary; or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions; in contemplation of law he was present aiding and abetting. So, a participation, the result of a concerted design to commit a specific offence, is sufficient to constitute a principal in the second degree. Thus, if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them, in the presence of the others, with the possession of the goods, and then another of the party entice the owner away, that he who has the goods may carry them off, all are guilty as principals. R. v. Standley, R. & R. 305. So, it has been holden that, to aid and assist a person to the jurors unknown, to obtain money by ring-dropping, is felony, if the jury find that the prisoner was confederate with the person unknown to obtain the money by means of this practice. R. v. Moore, 1 Leach, 314. And if two persons encourage each other to murder themselves together, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other. R. v. Dyson, R. & R. 523. So, likewise, if several persons combine for an unlawful purpose, or for a purpose to be carried into effect by unlawful means; see Fost. 351, 352; particularly, if it be to be carried into effect notwithstanding any opposition that may be offered against it; Fost. 353, 354; and one of them, in the prosecution of it, kill a man, it is murder in all who are present, whether they actually aid or abet or not, see the Sessinghurst-house case, 1 Hale, 461, provided the death were caused by the act of some one of the party in the course of his endeavours to effect the common object of the assembly. 1 Hawk. c. 31, s. 52. Fost. 352. R. v. Hodgson et al. 1 Leach, 6. R. v. Plumer, Kel. 109. But the act must be the result of the confederacy; for, if several are out for the purpose of committing a felony, and, upon alarm and pursuit, run different ways, and one of them kill a pursuer to avoid being taken, the others are not to be considered as principals in that offence. R. v. White, R. & R. 99. The purpose must also be unlawful; for, if the original object be lawful, and be prosecuted by lawful means, should one of the party in the prosecution of it kill a man, although the party killing, and all those who actually aid and abet him in the act, may, according to circumstances, be guilty of murder or manslaughter, yet the other persons who are present, and who do not actually aid and abet, are not guilty as principals in the second degree. Fost. 354, 355. 2 Hawk. c. 29, s. 9. A mere participation in the act, without a felonious participation in the design, will not be sufficient. 1 East, P. C. 257. R. v. Plumer, Kel. 109. Thus, if a master assault another with ma |