several hares on the same day incurs only one forfeiture and is a single offence only, and so likewise exercising trade on the Sabbath day, although several sales had taken place (Marriott v. Shaw, Cowp. 278; R. v. Lovett, 7 T. R. 152; Cripps v. Durden, Cowp. 540).

offence.

By s. 10, "Every such information shall be for one offence Stating the “only, and not for two or more offences;" which puts an end offence only one to the old practice of joining two or more counts in the information, and if it be desired to state the offence in different counts there must be separate informations, as also when the same offender commits offences against different statutes; but Accessory may where one is charged as principal and another as aiding, abet- be joined with principal. ting, couselling or procuring him to commit the offence, they may be jointly charged in the same information; for procurers, &c. in all offences less than felony are deemed in law principals, and the offence of the person who actually committed the act, and that of the person who counselled or procured him to do it, or aided him in doing it, may fairly be deemed but one offence (Arch. 126).

The time of committing the offence should be stated (R. v. Time and place Pullen, 1 Salk. 369; 14 East, 272); but the precise day need of offence. not be named if the offence be alleged to have been committed between such a day and such a day, provided the first of the days be within the limited time for laying the information or the conviction taking place (2 Hawk. c. 25, s. 82, 8th ed. by Curwood; Paley, 85; R. v. Crisp, 7 East, 389; R. v. Huggins, 3 C. & P. 602; R. v. Simpson, 10 Mod. 248). As to the place of the offence, the parish, &c. and the county should be correctly stated, to show that it was committed within the jurisdiction (q) of the magistrate receiving the information (Paley, 87, 164; R. v. Hazel, 13 East, 139; Kite and Lane's case, 1 B. & C. 101), for the statement of the venue in the margin will not supply the want of statement in the body (R. v. Austin, 8 Mod. 309; see also Deybell's case, 4 B. & Ald. 243, 247; R. v. Fletcher, 13 Law J. (N. S.) M. C. 16). Vide also s. 9, ante, p. 52, as to variance in the time and place laid and the evidence in support of the information not being material; but in informations for offences under the Night Poaching Act (9 Geo. 4, c. 69), the Beerhouse Act (3 & 4 Vict. c. 61, s. 15), and Alehouse Act (11 & 12 Vict. c. 49), where fractions

(9) Vide Introduction, ante, pp. 4-20, as to jurisdiction.

The act constituting the offence (r).

Certain.

Positive.

of a day are in question, time is of the essence of the offence, and in those cases is material, and must be proved as laid (1 Phil. Ev. 861, 9th ed. 514), for the hour stated in the calendar will not be judicially noticed, but must be proved as a fact (Collier v. Nokes, 2 C. & K. 1012; 15 Law T. 189).

The information or conviction must contain an exact description of the offence, which, in order to give the justice a jurisdiction, must appear to be within both the letter and the spirit of the statute that creates it, and which must be exactly described, that the defendant may know what charge he has to. answer (Bosc. 25), and it should contain the same certainty as an indictment (Ex parte Pain, 5 B. & C. 251; 7 D. & R. 678; 3 D. & R. M. C. 517, S. C.; Re Elmy and Sawyer, 1 Ad. & Ell. 843; R. v. Marsh, 4 D. & R. 267, per Bayley, J.); for being a summary proceeding and conclusive on the defendant, it ought to have the greatest certainty on the face of it (R. v. Jukes, 8 T. R. 544). The description of the charge in the information must include in express terms every ingredient required by the statute to constitute the offence; for nothing must be left to intendment, or inference, or argument, for helping out the description (R. v. Denman, 1 Chit. Rep. 152; Rex v. Jukes, 8 T. R. 536; Rex v. Fuller, 1 Ld. Raym. 509; R. v. Trelawny, 1 T. R. 222; Rex v. Bradley, 10 Mod. 155; Rex v. Pereira, 2 Ad. & Ell. 375; Ex parte Smith, 3 D. & R. 464; R. v. Marriott, 1 Str. 66; Charter v. Greame and another, 18 L. J. Rep. (N. S.) M. C. 73). For it is a rule with respect to summary proceedings before justices on penal statutes, that after a conviction nothing can be intended, so as to get rid of any defect in point of form; for everything necessary to support the conviction must appear on the face of the proceedings, and must be established by regular proof, or by the admission of the party of that which is proved (R. v. Daman, 2 B. & Ald. 378). A direct and positive charge must be stated against the defendant; a mere statement of facts amounting to a presumption of guilt is not sufficient (Rex v. Bradley, 10 Mod. 155); and all the facts must be expressly alleged, and not left to be gathered by inference or intendment (R. v. Fuller, 1 Ld. Raym. 509). The offence must not be stated by way of

(r) The mode of describing technically all offences will be found in the author's other work, just published, The Magisterial Formulist;" and in Chap. 2 of this part of the present work the page where the form to be used in each case will be found.

defendant.

recital, nor in the alternative or disjunctive, nor in an argumen- Not in the tative way (R. v. Catherall, 2 Stra. 900; R. v. Crowhurst, 2 alternative. Ld. Raym. 1363; R. v. Middlehurst, 1 Burr. 399; R. v. Marshall, 1 Mo. C. C. 158; 2 Hawk. c 25, s. 58; R. v. Morley, 1 You. & Jer. 22; R. v. North, 6 D. & R. 143; R. v. Pain, 7 D. & R. 178; R. v. Sadler, 2 Chit. Rep. 519; 1 Salk. 373; Rex v. Stocker, 1 Salk. 342, 371). Where the gist of the offence is a guilty knowledge, there must be a direct averment of its existence (R. v. Jukes, 8 T. R. 536; Rex v. Marsh, 2 B. & C. 717; Chaney v. Payne, 2 Q. B. 712; R. v. Llewel lyn, 1 Show. 48; Ex parte Hawkins, 2 B. & C. 31). So the Description of defendant must be brought within the description of the statute (R. v. Turner, 4 B. & Ald. 510; R. v. Little, 1 Burr. 913). So the information should not state the legal result of facts, but the facts themselves, in order that the court may judge of whether or not they amount to a legal offence, as where a conviction under the swearing act omitted to set forth the oaths and curses (R. v. Popplewell, 1 Str. 686; R. v. Chaveney, 2 Ld. Raym. 1368; R. v. Sparling, 1 Str. 497; R. v. Daman, 1 Chit. 147; 2 B. & Ald. 379; Mould v. Jennings, Cowp. 642; R. v. Roberts, 1 Str. 603; and see Reg. v. Rowed, 3 Q. B. 180). Though in general it may be sufficient to state the fact in the Particular facts. words of the act of parliament, yet it is not always safe to convey the description of the offence in those words (Paley, 68, 100, 102, 108, 118); for where the words of a statute are general, as where it states merely the legal effect, it will nevertheless be necessary to specify the particular facts constituting the offence (R. v. Jarvis, 1 East, 643, n.; 1 Burr. 148; R. v. Neild, 6 East, 417; R. v. Ridgway, 5 B. & Ald. 527; 1 D. & R. 123; R. v. James, Cald. 458; R. v. Mallison, 2 Burr. 679; R. v. Speed, 1 Ld. Raym. 583; 10 M. & W. 464; R. v. Daman, 2 B. & Ald. 379; R. v. Chapman, S. C. 1 East, 647, n.; and the recent case of Fletcher v. Calthrop and Tharp, 14 Law J. Rep. (N. S.) M. C. 49; 6 Q. B. 880; and see 11 J. P. 1; New S. C. 529; In re Fletcher, 13 Law J. M. C. 16; 1 Dow. & L. P. C. 726). It is not necessary to use the actual words of a statute, provided those used are equivalent (Stamp v. Sweetland, 2 New Sess. Ca. 90). Where the question turns Sums or quanupon particular sums or quantities, they must be particularized tities. (R. v. Catherall, Str. 900; R. v. Marshall, 2 Keb. 594); particularly as the justices are in many cases empowered to award compensation according to the amount of damage (R.

Offence sub modo.

v. Gibbs, 1 Str. 497), and in some cases their jurisdiction to convict depends upon the amount of damage. Where anything is declared to be an offence sub modo only, the fact must be Exemptions averred with the necessary modification. In Paley on Convicand exceptions. tions (3rd ed. 118) the rule as laid down by the learned author is thus stated: "The rule, therefore, and distinction resulting from these, and confirmed by the cases mentioned in the sequel, seem to be clear, viz. that all circumstances of exemption and modification, whether applying to the offence or to the person, that are either originally introduced or incorporated by reference with the enacting clause, must be distinctly enumerated and negatived; but that such matters of excuse, as are given by other distinct clauses or provisoes, need not be specifically set out or negatived (see Steel v. Smith, 1 B. & Ald. 94). It must be here particularly noticed, that it is immaterial whether the exception be in another section or in another act of parliament, if distinctly referred to and engrafted into the enacting clause" (R. v. Pratten, 6 T. R. 559; Reg. v. Matthews, 10 Mod. 27; R. v. Jarvis, 1 Burr. 148; 1 East, 643; R. v. Wheatman, Doug. 232; R. v. Silcot, 3 Mod. 281; R. v. Theed, 1 Ld. Raym. 1375). In the recent case of Van Boven (16 Law J. Rep. (N. S.) M. C. 4; 2 N. S. C. 492; 11 J. P. 105), which arose under the Smuggling Act, 8 & 9 Vict. c. 87, the same doctrine was held; it was decided that a commitment under the 50th section, describing the offence in the words of the 2nd section, was sufficient, without negativing the exception in the 4th Case admitting section. Where the case, however, would admit of some excuse, for want of which there would be no legal offence, as in the case of a servant proceeded against under the 4 Geo. 4, c. 34, for absenting himself from his master's service, there must be an allegation in the information and subsequent "proceedings that the absence complained of was without leave and lawful excuse, though the statute contained no such qualification, but made the servant liable to imprisonment for merely absenting himself (In re Turner, 15 Law J. Rep. (N. S.) M. C. 140; Written instru- 2 N. S. C. 403; 10 J. P. 570). Where a written instrument is referred to, it should be stated accurately (R. v. Powell, 2 East, P. C. 976; Wright v. Clement, 3 B. & Ald. 503).

of excuse.

ments.

Describing

statute.

Where the information is upon a local or private statute it should be recited as 66 a certain act passed in a session of parliament held in and years of the reign of her present Majesty, intituled 'An Act,'" &c.

property.

By s. 4 the ownership of property may be described similarly Describing to the manner in indictments under 7 Geo. 4, c. 64, ss. 14, 15, ownership of 16, 17, 18, as follows: of partners, joint-tenants, parceners or tenants in common, one may be named, as "A. B. and others," or "another;" of counties, ridings, &c., as of the inhabitants of the county, riding, division, liberty, city, borough, or place; in goods provided for the poor, as of the churchwardens and overseers of the poor of the parish, or of the overseers of the poor of the township or hamlet, or of the guardians of the poor of the union to which the same belong, without naming any of them; in materials, &c. for parish roads, as of the surveyor or surveyors, without naming him or them; in materials, &c. for turnpike roads, as of the commissioners or trustees of such road, without naming them; of commissioners of sewers of any district, as the property of the commissioners, without naming them.

If the information is for a second or subsequent offence, for Where a second which a higher fine or greater imprisonment can be adjudged, or subsequent it must be averred in the information and other proceedings, that the defendant has been previously convicted, with dates, &c. (s). (Vide Forms, Nos. 4, 5, post, pp. 63, 64). But although this formal manner of averring the former conviction is in practice adopted, it may be open to doubt, since now no objection can be taken to the information, whether stating the previous conviction in general terms is not sufficient in the information, i. e. "the same being his [second] offence," but an express and formal averment in the conviction must be made, although under the 12 & 13 Vict. c. 11, s. 4, (applicable to summary convictions,) a statement of the fact is sufficient in an

indictment.

FORMS (t).

day of

The information [or "complaint"] of C. D., of the parish of (1) Information to wit. C. in the county of C., labourer, taken [upon oath] before me or complaint the undersigned, one of her Majesty's justices of the peace in and for the with or without said county of C., at N, in the same county, this oath. A D. 1850, who saith [that he hath just cause to suspect and believe, and doth suspect and believe] that A. B., of the parish of L., in the said county of C., labourer, [within the space of the time within which the

(s) For the purpose of ascertaining this, a Minute Book or Register of Persons convicted should be kept at each petty sessions (vide form, No. 77, p. 62, “ Oke's Magisterial Formulist.")

(t) None of these are given by the 11 & 12 Vict. c. 43, but are taken from "Oke's Magisterial Formulist," pp. 23-26.