SAID," &c. 195 where the law has applied particular terms of art to the description of a crime (as "feloniously,” “wilfully," "of malice aforethought," &c.) they should be carefully inserted; fourthly, that where an indictment is founded (x) on a statute, the language of the statute should be accurately followed, and the offence stated to be " contrary to the form of the statute in such case made and provided" (y); fifthly, that all inconsistency and repugnancy should be avoided; for although an averment which is altogether superfluous may be rejected as surplusage, for utile per inutile non vitiatur (z); yet if an averment be part of the description of the offence, or be embodied by reference in such description, it cannot be so rejected, and its introduction will be fatal. It may, however, be observed, in the language of Lord Ellenborough, that "except in particular cases where technical expressions are required, there is no rule that other words should be employed than such as are in ordinary use, or that in indictments or other pleadings a different sense is to be put on them than what they bear in ordinary acceptation; and if, where the sense be ambiguous, it is sufficiently marked by the context or other means in what sense they are intended to be used, no objection can be made on the ground of repugnancy, which only exists where a sense is annexed to words, which is either absolutely inconsistent therewith, or being apparently so, is not accompanied by any thing to explain or define them. If the sense be clear, nice exceptions ought not to be regarded" (a): thus the word until may be construed to be inclusive or exclusive of the day to which it is applied, according to the context and subject (6), and the statement may be either according to the fact, or to the legal operation (c). Of the Words "said," " aforesaid," " same," " there," " then."]— The words said (d), aforesaid, same, and there, generally refer to the (x) See post, Ch. IV. s. 2. Indictments grounded on penal statutes must pursue the statute, so as to bring the party precisely within it; and the fullest description of the offence, were it even in the terms of a legal definition, would not be sufficient without keeping close to the words of the statute, Foster's Crown Law, 423, 424. (y) If the offence is indictable at common law, this conclusion will not hurt, and may be rejected as surplusage. See Index, tit. Indictment. (z) 1 Stark. Ev. 2nd ed. 372-377. (a) See R. v. Stevens and Agnew, 5 East, 259. Also 1 Chit. C. L. 173. Lord Hale inveighs against these un 66 seemly niceties," 2 Hale's P. C. 193. (b) R. v. Stevens, 5 East, 244. (c) Thus, under the repealed act, 3 & 4 W. & M. c. 9, s. 5, it was held no objection to state that the lodging stolen from was let by the owner's wife, though such a letting was in law a letting by the husband, R. v. Healey, 1 Mood. C. C. 1. (d) As to the words, "the said E. R." in a second count, see Reg. v. Martin, 9 C. & P. 215, ante. If the first count describe the wife of defendant, and the third mentions "the said wife" of defendant this sufficiently refers to this person mentioned as his wife in the first count, Reg. v. Dent, C. & Kir. 249. last antecedent, if the matter itself, viz. that which makes sense of the indictment, and is its reasonable construction, does not hinder (e). The last antecedent, says Tindal, C. J., is the last word which can be made an antecedent, so as to have a meaning (f). An indictment will be bad where a relative refers with equal uncertainty to two antecedents (g). Same is more explicit, and may be said always to apply to the last actecedent, though said does not necessarily do so (h). "Then," (ad tunc) means the very time at which the event referred to happened; it therefore involves the same day and such is the known sense of the word in pleading. But of "instantly," the more natural and usual sense is instantly after; the pleader may mean five minutes, an hour, some time on the succeeding day, or even a longer time. In precedents the words "instanter" and "incontinenter" do not dispense with a direct allegation of time (i). Though every crime should appear charged on the face of the record with scrupulous certainty (k), i. e. so as to support itself by its own expressions, yet an omission of a letter, which does not change the word into another of a different meaning, as undertood for understood, receivd for received, depaired of for despaired of, Segrave for Seagrave, &c. will not avoid an indictment (1). Enactments of 7 G. IV. c. 64, against staying or reversing Judgments on Indictments for certain specified Defects.]-As judgment will be arrested on an indictment for a defect which in a civil proceeding would only be ground of special demurrer (e. g. if a plea to an indictment against a parish for not repairing a way does not aver who is liable to repair by custom, tenure, &c. (m),) an attempt has been made by one of Peel's acts, 7 G. IV. c. 64, s. 20, "that the punishment of offenders may be less frequently intercepted in consequence of technical niceties;" after which preamble it is enacted, "that no judgment upon any indictment or information for any felony or mis (e) R. v. Wright, 1 Ad. & El. 434. See Co. Lit. 20; R. v. Countesthorpe, 2 B. & Adol. 487; Spyer v. Thelwall, Tyr. & Gr. 191; 4 How. St. T. 747; and cases collected, 3 Burn, by Chitty, 28th ed. p. 418, &c. tit. Indictment, sect. viii. 3. To make sense of a deed, the word there was held to refer to the last antecedent he, though placed in a parenthesis, Manchester v. Daper, cited, 1 Ad. & E. 445. See 2 Roll. Ab. tit. Parols, E. p. 252, 1. 12; Com. Dig. tit. Parols (A 14). (ƒ) 1 Ad. & E. 445. See 8 Bing. 75; Walford v. Anthony, 1 Moo. & Sc. 126. (g) R. v. Graham, 1 Leach C. C. 87. (h) See Woodford v. Ashley, 11 East, 513; Co. Lit. 385; 2 Lord Raym. 888, Reg. v. Rhodes. (i) Per cur. 11 Ad. & E. 119; Reg.v. Grand Junction Railway Co. (*) 1 Chitty's Cr. L. 172, 1st edit. (1) Id. 294; 1 Leach, C. C. 134, 135. (m) R. v. Eastrington (Inh.), 5 Ad. & El. 765, 770. demeanour, whether after verdict, or outlawry, or by confession, default, or otherwise (n), shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for the omission of the words, as appears by the record,' or of the words with force and arms,' or of the words 'against the peace, nor for the insertion of the words against the form of the statute' (o), instead of against the form of the statutes' or vice versá; nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened; nor for the want of a proper or perfect venue (p), where the court shall appear by the indictment or information to have had jurisdiction over the offence" (q). Stating Offence in Words of Statutes.]-Again, by 7 G. 4, c. 64, s. 21, no judgment after verdict upon any indictment, or information for any felony or misdemeanour, shall be staid or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer on an insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served on the jury who has not been returned as a juror by the sheriff or other officer; and where the offence charged has been created or subjected to greater degree of punishment by any. statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute. But this was held not to apply, where the objection was taken after plea, and before trial or verdict (r), though the indictment followed the words of the statute 7 & 8 G. IV. c. 29, s. 53: and error still lies, if (n) These words do not extend this enactment beyond cases in which the application is to stay or reverse the judgment, Archb. Crim. Pl. & Ev. 6th ed. 73; and see R. v. Holland, 4 T. R. 457. (0) This provision does not cure the want of these words in an indictment for an offence created by statute, e. g. stealing a bank note, R. v. Pearson, 1 Mood. C. C. 313; R. v. Radcliff, 2 id. 68. (p) Defects of venue are not intended to be cured unless the jurisdiction of the court in respect of locality (viz. of the county in this realm where the offence was committed) is made to appear, 13 L. J. (M. C.) 37; Reg. v. O'Connor. See post, p. 201. (g) 7 G. IV. c. 64, s. 20. (r) Reg. v. Norton, 8 C. & P. 196, Alderson, B., and Williams, J. the indictment, though following the words of the statute, is bad by the general rules of law (s). For there are many cases in which, if the statutory form of words was followed, no offence would be charged (t), e. g. if an indictment charged a man with destroying his own will (u), or with taking his own pigeons or house-doves (x), or with killing "cattle" without adding what sort (y). Terms of the same legal import as those used in the statute seem to suffice (z). Whatever may have been intended by these provisions, they appear not to apply to any objection which before they were enacted, might be taken at the trial, or raised on demurrer; but merely to objections made in stay or reversal of judgment. In practice, therefore, it would not be safe to act on them in framing indictments; the requisites of which must be considered as before, though the above sections may be useful in preventing objections made after verdict, viz. in arrest of judgment. Objections to an indictment for defects on the face of it, which would thus be cured after verdict by 7 G. IV. c. 64, s. 20, 21, must be raised by demurrer before trial; and it will be too late to urge them afterwards, though before verdict (a); but a writ of error will lie to reverse a judgment on an indictment as insufficient, though the words. of the statute on which it is founded are followed as by s. 21 directed (b). Words merely tautologous will be rejected if the indictment is in other respects good in itself (c); and an indictment which is bad, from (8) Reg. v. Martin et ux. 8 Ad. & E. 481; 3 Nev. & Per. 472; and see the cases on the Polish notes, R. v. Moses, &c. 7 C. & P. 416-429; 1 Mood. C. C. 466-470. (1) See judgment of Coleridge, J., in Reg.v.Nott, 12 L. J. (M.C.) 143, T. 1843. (u) 7 & 8 G. IV. c. 29, s. 22. (x) See per Lord Denman, 8 Ad. & E. 486; 3 Nev. & Per. 475. "dis (y) R. v. Chalkley, post. See post, Chap. VI. tit. Cheats and False Pretences. Another instance in which it will not suffice to lay the offence charged in the words of the act which creates it, is that of a woman who endeavours to conceal the birth of her child by posing" of its body otherwise than by "secret burying" it; in which case, the way how it was "disposed of" must be stated. (Reg. v. Hounsell, 2 M. & Rob. 292, Maule, J.) So "entering land by night for the purpose of destroying game," is not completely laid without (a) Reg. v. Ellis, 1 Car. & Mar. 564, (b) Reg. v. Martin et ux. 8 Ad. & E. 481; 3 Nev. & Per. 472. (c) R. v. Morris, 1 Leach, C. C. 109. its sense being obstructed by particular words, may be made good by rejecting them as insensible and useless (d). Recitals.]-The indictment will be good, though after the words "in manner and form following,' ,"" that is to say," or "as follow, that is to say," an instrument be not recited verbatim (e). "Until" will be construed either inclusive or exclusive of the day to which it is applied, according to the context and subject-matter (ƒ). Allegation of Intent.]-Where an act is in itself unlawful, allegation of evil intent is matter of form not necessary to be proved by extrinsic evidence. But if an evil intent accompanying a particular act is necessary to constitute that act a crime, the intent must be laid in the indictment, and proved; but it is sufficient to allege it in the prefatory part (g). Chief Points relating to Indictments in general.]-The chief points common to all indictments are, 1. The commencement: (i. e. the venue, and presentment of grand jury.) 2. The description of the accused; (i. e. name, addition, mystery, &c.) 3. The statement of the time when the offence was committed; 4. The statement of the place where the offence was committed; 5. The description of the person against whom or whose property the offence was committed; 6. The statement of the offence itself; 7. The statement of the means by which the offence was committed; 8. The conclusion. 1. The Commencement, i. e. Venue and Presentment of Grand Jury].-An indictment commences thus :-"Berkshire (to wit).—The jurors for (h) our Lady the Queen upon their oath (or if any grand (d) R. v. Redmond, 1 Leach, 477. (e) R. v. May, 1 Leach, C. C. 193; R.v. Hart, id. 145; 2 East, P. C. 978; Doug. 193; Cowp. 229. (f) R. v. Stevens, 5 East, 544. (g) R. v. Phillips, 6 East, 464. (h) In Reg. v. Turner, 2 M. & Rob. 214, it was held by Parke, B., that an indictment beginning, "The jurors of our Lady the Queen," is not bad on arrest of judgment, for they may be rejected as surplusage. The usual expression, "the jurors for our Lady the Queen present, &c." does not mean that a particular class of jurors so present, but only that the jurors present for the Queen; and it is sufficient if it appears that the matters in the bill are presented by the jurors (i. e. the jurors spoken of in the single caption which there is to all the indictments found at the assize), and that those matters are the proper subject of indictment by those jurors. See 1 Ch. Cr. L. p. 327. In ancient times the caption concluded, "It is presented that A. B., &c. did so and so," without further mention of the jurors. |