INDICTABLE

OFFENCES.

Private injury.

Breach of bye law.

Offences against public statutes.

Offence against private statutes.

Statutes pointing out remedies.

fore cognizable by that jurisdiction." And in the case referred to, Lawrence, J., said, "All offences of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable. Then the question is, whether an attempt to incite another to steal, is not prejudicial to the community? of which there can be no doubt. The whole argument for the defendant turns upon a fallacy in assuming that no act is charged to have been done by him; for a solicitation is an act. It is an endeavour or attempt to commit a crime. The doctrine laid down by Lord Mansfield in R. v. Schofield, Cald. 397, 403, comprises all the principles of the former decisions, that so long as an act rests in bare intention, it is not punishable by our laws. That case is ably reported, and contains every thing convincing that can be said on the subject.'

A person may be indicted for unlawfully and injuriously carrying a child infected with the small pox along a public highway, in which persons are passing, and near to the habitations of the King's subjects. R. v. Vantandillo, 4 M. & S. 73.

And it has been held an indictable offence in an apothecary unlawfully and injuriously to inoculate children with the small pox, and, while they are sick of it, unlawfully and injuriously to cause them to be carried along a public street. The defendant in this case was sentenced to six months imprisonment. R. v. Burnet, 4 M. & S. 272.

But an indictment will not lie for a mere private injury against an individual: as, for enticing away his apprentice; Reg. 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 Burr. 1698, 1731; excluding commoners by inclosing; Cro. Eliz. 90; for selling short measure; R. v. Osborn, 3 Burr. 1697; 2 Stra. 793; pulling the thatch off a dwellinghouse of which he was in peaceable possession; R. v. Atkins, 3 Burr. 1706, 1707; or the like: the remedy for injuries of this description is by action only. If, however, there were any conspiracy in the case, then an indictment might be supported for it. See Conspiracy, Vol. I.

So, an indictment will not lie for a mere breach of the bye laws or customs of a corporation. 4 T. R. 777; 3 Salk. 188. See Com. Dig. Indictment, (E).

And it does not follow that, because an action cannot be supported, an indictment lies. Richards, 8 T. R. 634.

R. v.

See further as to what offences are indictable, the different titles of offences throughout this work.

Also, it seems to be a good general ground, that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject; or commands a matter of public convenience, as the repairing of the common streets of a town; an offender against such statute is punishable, not only at the suit of the party grieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. Yet, if the party offending hath been fined to the king in the action brought by the party, (as it is said that he may in every action for doing a thing prohibited by statute), it seems questionable whether he may afterwards be indicted, because that would make him liable to a second fine for the same offence. 2 Hawk. c. 25, s. 4.

But if a statute extend only to private persons, or if it extend to all persons in general, but chiefly concerns disputes of a private nature, as those relating to distresses made by lords on their tenants; it is said that offences against such statutes will hardly bear an indictment. Ib.

Also, where a statute makes a new offence, by prohibiting and making unlawful any thing that was lawful before, and appoints a particular method of proceeding, without mentioning an indictment, it seemeth to be settled at this day that no indictment can be maintained. 2 Str. 679; 2 Burr. 803; 2 Hawk. c. 26, s. 4; 1 Rep. 67.

But Lord Hale (2 Hale, 171), distinguishes upon this, and says, that if a statute prohibit any act to be done, and by a substantive and distinct clause give a recovery by action of debt, bill, plaint, or information, but mentions

not an indictment, the party may be indicted upon the prohibitory clause, and thereupon fined, but not to recover the penalty. But then it seems the fine ought not to exceed the penalty; but if the act be not prohibitory, but only that, if any person shall do such a thing, he shall forfeit so much, to be recovered by action of debt, bill, or plaint, or information, then he cannot be indicted for it, but the proceeding must be by action, bill, plaint, or information. Vide R. v. Harris, 4 T. R. 202.

Also, where a statute adds a further penalty to an offence prohibited by the common law, and prescribes a partial remedy by a summary proceeding, there, either method may be pursued. 2 Hawk. c. 25, s. 4; 2 Burr. 803. Therefore, it is indictable to disobey an order of sessions for the maintenance of relations under the stat. 43 Eliz. c. 2, though that statute gives a penalty; for, before the statute of Elizabeth, disobedience to an order of sessions was an offence indictable at common law. R. v. Robinson, clerk, 2 Burr. 799; and see R. v. Carlisle, 3 B. & A. 161; R. v. Hollis, 2 Stark. C. N.P.536.

The true rule of distinction seems to be, that where the offence intended to be guarded against by a statute, was punishable before the making of such statute prescribing a particular method of punishing it, there such particular remedy is cumulative, and does not take away the former remedy. But where the statute only enacts-"That the doing any act not punishable before shall for the future be punishable in such and such a particular manner, there it is necessary that such particular method, by such act prescribed, must be specifically pursued; and not the common law method of an indictment." Per Lord Mansfield, C. J., 2 Burr. 805.

In R. v. Balme, 2 Cowp. 648, the defendants were indicted for disobeying an order of justices on the statute 13 Geo. III. c. 78, for the widening of a highway. It was objected, that a summary method of proceeding before the justices being directed by the statute for the recovery of a penalty, the prosecution ought to have been in that form, and not by way of indictment. But, by the Court-Disobeying an order of justices is an offence at common law; and, therefore, the prosecutor might proceed either penalty given by the statute is only accumulative.

way; the

And it is a general rule, that subsequent statutes, which add accumulative penalties, do not repeal former statutes. R. v. Jackson, 1 Cowp. 297. Wherever there is a prohibitory law, if it be still in force, the proper remedy under it is by indictment: and where a statute forbids the commission of any act, the doing it wilfully is indictable, although it be done without any corrupt motive. 1 Cowp. 297; 4 T. R. 457; 5 T. R. 607.

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. 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, it 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. 2 Doug. 441; see Com. Dig." Indictment," (D).

III. Time of Endicting.

By stat. 31 Eliz. c. 5, all indictments upon any statute penal, whereby on penal statutes. the forfeiture is limited to the King, shall be sued within two years after the offence committed; if the forfeiture be limited to the King and prosecutor, the suit shall be in one year: and in default thereof, the same shall be sued for the King within two years after that year ended. But where a statute limits a shorter time, the suit shall be brought within such time limited. See this enactment, post, title Enformation, Vol. III.

In general no li

But for indictments of felonies and other misdemeanors, where there is no forfeiture to the King, or to the King and prosecutor, no time is limited mitation to indict

ments.

WHO MAY BE

JOINED AS DEFENDANTS.

Who may be joined as defendants.

by any statute, though, in some cases, the several acts of general pardon have the effect of a like limitation. The last act of which kind was that of the 20 Geo. II. c. 52, for certain offences committed before June 15, 1747.

No length of time can legalize a public nuisance, although it may afford an answer to an action by a private individual. 7 East, 199; 3 Camp. 227; 4 Esp. 109; Peake, C. N. P. 91.

Some offences, indeed, must, by particular statutes, be prosecuted within specified periods. See the titles of offences, Treason, Vol. V.; Church, Vol. I. &c.

IV. Who may be joined as Defendants in same Endictment.

WHERE the act is such that several may join in it, all the offenders may be included in the same indictment; 2 Hale, 173; 2 Burr. 984; 2 Hawk. c. 25, s. 89; or may be indicted separately; thus

Where several keep a common gaming or other disorderly house, or are guilty of deer stealing, maintenance, libelling, extortion, trespass, or other offences, which admit of the agency of several, they may be either jointly or severally indicted. 2 Hale, 173-4; 2 Hawk. c. 25, s. 89; 1 Chit. C. L. 267. So, if several commit a robbery, burglary, or murder, they may be so joined or separated. 2 Hale, 173.

On the other hand, several offenders cannot be joined in an indictment for perjury, because the assignment must be of the very words spoken, and the words uttered by one cannot possibly be applied to those which proceed from another; besides, one of the defendants may be desirous of obtaining a certiorari, while the others are anxious for an immediate trial. 3 T. R. 103-4; 2 Stra. 921; 2 Hawk. c. 25, s. 89; 1 Chit. C. L. 268, and other cases there cited.

In all cases of high treason, petit larceny, mayhem, and offences inferior to felony, the act of one being in law the act of the rest, they may all be charged as having jointly committed the offence. 7 East, 65; 1 Hale, 615, 521-2; except in the case of becoming a traitor by harbouring another traitor, in which case the indictment must be specially framed. Fost. 345.

Where the principal in the second degree is charged as an aider or abettor, it is not necessary to set forth in the indictment the means or manner by which he became thus guilty, but merely to describe him generally as being present, aiding and abetting at the felony and murder, (as the case may be), committed in manner and form aforesaid. 2 Ld. Raym. 846; 1 Hale, 521-2; 2 Hawk. c. 25, s. 64; Ib. c. 29, s. 17; R. & R. C. C. 314. But merely to charge him with being present will not suffice, because he may possibly be innocent. 2 Hawk. c. 25, s. 64; Fost. 351; 4 Co. Rep. 42. See further as to Principals and Accessaries, title Accessary, Vol. I. Principals in the first and second degree, and accessaries before and after the fact, may all be joined in the same indictment; 2 Hale, 173; or the principals may be indicted first, and the accessaries after the conviction of the principals. See Accessary, Vol. I.

On an indictment against two charging them with a joint offence, either may be found guilty, but they cannot be found guilty of the separate parts of the charge, subjecting the prisoners to distinct punishments. R. & R.

C. C. 344.

Several offenders may also, for different offences of the same kind, be in some cases included in the same indictment, the word "severally" being inserted, which makes it several as to each of them, though the Court will, in its discretion, quash the indictment if any material inconvenience appear to rise from the mode in which it is preferred. 3 T. R. 106; 8 East, 46.

In cases of conspiracy and riot, where one cannot be indicted for an offence committed by himself alone, the acquittal of so many as shall render it impossible for the rest to have committed the offence must of course extend to him. 1 Stra. 193; 12 Mod. 262; 2 Salk. 593; 13 East, 412.

Misjoinder of defendants may be made the subject of a demurrer, motion

in arrest of judgment, or writ of error; or the Court will in general quash the indictment. 3 T. R. 103-6; R. v. Clarke, 1 East, 46; 2 Camp. 132.

If, however, two be improperly found guilty separately on a joint indictment, the objection may be cured by producing or entering a noli prosequi as to the one of them who stands second on the verdict. R. & R. C. C. 344.

JOINDER OF
OFFENCES.

V. How many, and what Offences may be joined in same

Indictment.

In Felonies]-IN treasons or felonies no more than one distinct offence or In felonies. criminal transaction at one time should regularly be charged upon the prisoner in one indictment, because, if that should be shewn to the Court before plea, they will quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge to the jury; for he might object to a juryman's trying one of the charges, though he might have no reason so to do in the other; and if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge he will proceed. Young v. The King, 3 T. R. 105-6; 2 East's P. C. 515; 2 Camp. 131; 3 Camp. 132; 3 M. & S. 539.

But this is only matter of prudence and discretion, which it rests with the judges to exercise. Id. For, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender; 2 Hale, 173; 2 Leach, 1103; and it is no ground either of demurrer or arrest of judgment, Id. 1 Chit. C. L. 253, and authorities and instances there cited.

And although a prosecutor cannot thus charge a defendant with different felonies in different counts, yet he may charge the same felony in different ways in several counts, in order to meet the facts of the case; as, for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was commiteed, be the goods or house of A. or of B., they may be stated in one count as the goods or house of A., and in another as the goods or house of B. See 2 B. & P. 508; and in R. v. Johnson, 3 M. & S. 539, a count for embezzling bank notes upon the statute was considered might be joined with a count for larceny, at common law. And see Cald. 218; 2 Leach, 1103, 1108; 1 Leach, 473.

The statute 7 & 8 Geo. IV. c. 28, s. 6, which abolishes the benefit of clergy in cases of felony, provides, that nothing therein contained shall prevent the joinder in any indictment of any counts, which might have been joined before the passing of that act.

In Misdemeanors]-In misdemeanors, the joinder of several offences In misdemeanors. will not, in general, vitiate the prosecution in any stage. Young v. The King, 3 T. R. 105; 2 Camp. 132; R. v. Saunders, 2 Burr. 984; 8 East, 41. For, in offences inferior to felony, the practice of quashing the indictment or calling upon the prosecutor to elect on which charge he will proceed, does not exist. 2 Camp. 132. But, on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment. Id. And see R. v. Levy, 2 Stark. C. N. P. 458, where, under several counts for a conspiracy, alleging several conspiracies of the same kind, on the same day, the prosecutor was allowed to give in evidence several conspiracies on different days. And see R. v. Broughton, Trem. P. C. 111, where the indictment charged no less than twenty distinct acts of extortion.

It appears to have been formerly holden, that a person could not be prosecuted upon one indictment for assaulting two persons, each assault being a distinct offence. R. v. Clendon, 2 Ld. Raym. 1572; 2 Str. 870. But in R. v. Benfield & Saunders, 2 Burr. 984, the Court held this case of Clendon not to be law, and said, cannot the King call a man to account for a breach of the peace because he broke two heads instead of one? It is a prosecution in the King's name for the offence charged; and not in the nature of an action, where each person injured is to recover separate damages.

GENERAL

REQUISITES.

Two offences in same count.

General requisites.
Certainty (a).

Degree of certainty.

Charge must not be too general.

It must be special.

Certainty to every intent.

If the legal judgment on each count would be materially different, as in felony and misdemeanor, then the joinder of such several counts would be bad on demurrer, in arrest of judgment, or on error. 3 T. R. 103, 435. But see 1 East's P. C. 408; 1 Chitt. C. L. 254-5. The objection might, it seems, be cured at the trial, by taking a verdict on the counts only that could be joined.

As to the objection against stating two offences in the same count, see post, 325.

VI. General Requisites.

(1) Certainty in, and what must be stated, and how. INDICTMENTS should be framed with sufficient certainty. For this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offence, and the defendant be put upon his trial in chief for another, without any authority. These precautions are also necessary, in order that the defendant may know what crime he is called upon to answer, and may be enabled to claim any right or indulgence incident to the prosecution of some crimes, as treasons, &c., as well as that the jury may appear to be warranted in their conclusion of 'guilty or not guilty' upon the premises to be delivered to them; and that the Court may see such a definite offence on record, that they may apply the judgment, and the punishment, which the law prescribes; they are also important, in order that the defendant's conviction or acquittal may insure his subsequent protection, should he again be questioned on the same ground, and that he may be enabled to plead his previous conviction or acquittal of the same offence, in bar of any subsequent proceedings. Cowp. 682-3; 5 T. R. 611, 623; 1 Leach, 249; 2 T. R. 586; 2 M. & S. 386.

With respect to the degree of certainty, the indictment must state the facts of the crime, with as much certainty as the nature of the case will admit. Therefore, an indictment charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insufficient. 3 T. R. 581; 2 M. & S. 287. And see further instances, 1 Chit. C. L. 171, 229.

An indictment that the defendant is a common highwayman, a common defamer, a common disturber of the peace, and the like, is not good; because it is too general, and contains not the particular matter wherein the offence was committed. 2 Hale, 182.

In like manner, an indictment for divers scandalous, threatening, and contemptuous words, spoken of a justice of the peace, is not good; it ought to set forth the words in special. 2 Str. 699.

But in certain excepted cases, it is sufficient to state generally, that the defendant is so and so, without specifying any particular instances; as in a charge of being a common scold, a common barrator, or of keeping a common bawdy-house. 2 Hawk. c. 25, s. 57, 59. And see further, 1 Chit. C. L. 229, 230.

The indictment ought to be certain to every intent, and without any intendment to the contrary. Cro. Eliz. 490. And that it ought to have the same certainty as a declaration; Comb. 460; for that all the rules that apply to civil pleadings are applicable to criminal accusations. 2 Stra. 904.

An indictment which may apply to either of two different definite of fences, and does not specify which, is bad. R. v. Marshall, R. & M. C. C.

158.

(a) As to certainty in general, see 2 Hale, 167; Cowp. 682-3; Com. Dig. "Indictment," 91; 4 Blac. Com. 306; Bac.

Abr. "Indictment," (G 1); Cro. C C. 37; 2 Woodes. 554; 1 Chit. C. L. 169.