law; for when an act is continued, every body is eftopped to fay (K) Uncertainty in the Offence too general. 1. A Common and turbulent brawler, a fower of difcord among her neighbours, so that she hath stirred, moved, and incited divers ftrifes, controverfies, quarrels, and difputes amongst his majefty's liege people, contra pacem, &c. is too general. None but a barretor and a common fcold are indictable by general words. Rex v. Cooper, H. 19 G. 2. 2 Str. 1245. 2. Indictment against defendant for a nuifance, charging that he femper levavit vel levari caufavit. And, on demurrer, judgment was given for the defendant, on account of the uncertainty of the charge. Rex v. Stoughton, E. 4 G. 2. 2 Stra. 900. 3. Charging an officer with a breach of order in not prosecuting a war with all poffible vigour and decifion," is too uncertain, even though the charge be made in the very words of the order given to him. Rex v. Hollond, E. 34 G. 3. 5 T. R. 607. 4. Indictment for words spoken of a justice in the execution of his office, muft fpecify what they were; and, if for obstructing him in his duty, muft fhew by what act. Rex v. How, E. 12 G. 2. Stra. 699. 5. On an indictment on 5 Eliz. c. 4. if it is averred a tráde ufed in Great Britain, instead of England, it is bad. Rex v. Lifter, M. 1 G. 2. 2 Stra. 788. 6. An indictment for perjury, not fhewing in what manner and in what court the falfe oath was taken, is infufficient; because, for what appears, it might have been extrajudicial. Rex v. Aylett, 1 T. R. 60. 7. If an indictment be for a forcible entry, there ought to be a pofitive charge of diffeifin. 1 Ld. Raym. 610. 8. Indictment quia male et negligenter fe geffit in execution of the office of conflable, quafhed for being too general. Rex v. Winteringham, Stra. 2. 9. So, for deceiving one D. of several lottery orders, viz. de fcriptis bonis et catallis of D. decipiebant et defraudebant. lb. 8. I. (N) Uncertainty. RANCIS Morris was indicted as a receiver. The indictment stated, "he the faid Thomas Morris, well knowing," . But the indictment was held good, and the words "the faid Thomas Morris" rejected as furplufage. Morris's cafe, Cafes in C. L. 103. 14 Vin. 38r. 14 Vin. 386. 2. But where an indictment contained two counts, one for ftealing a bank note, and the other for stealing a pocket book; and the fame indictment charged Mary Graham with knowingly receiving them, and the ftealers were found guilty; held bad on the lat count only, and Mary Graham was found guilty of the offence aforefaid. This was held bad; for it is uncertain to which offence this finding refers. Graham's cafe, Caf. C. L. 82. 3. So alfo an information charging two diftinct offences, if the offender is convicted of the faid offence, it is infufficient. Rex v. Salomons, T. R. 249. 4. Conviction under 22 Geo. 3. c. 47. for insuring a ticket in the lottery, authorised by 25 G. 3., quafhed, because the information did not ftate that it was a ticket in the fate lottery. Rex v. Trelawney, E. 26 G. 3. 1 T. R. 222. 5. In an information, the charge that the defendant, under colour of his office of clerk of the market, did illegally cause his agents to demand and receive of several other perfons feveral other fums of money, is too general, and for this the judgment was arrested. Rex v. Role, 2 Stra. 999. 6. An indictment for murder must aver that the prisoner gave the deceased a mortal wound. Lad's cafe, Cafes in C. C. 112. 7. It is an incontrovertible rule, that " in an indictment nothing material fhall be taken by intendment or implication." 4 Hawk. P. C. 31. f. 60. 8. In a criminal charge, there is no latitude of intendment to include more than is charged; the charge must be explicit enough to support itself. Rex v. Wheatley, 2 Burr. 1127. 9. In indictments figures mult not be used, especially in material parts. Rex v. Haddock, Andr. 145. 10. An indictment for felling bread, not having debitum pondus, is too general. Rex v. Flint, 1 Ld. Raym. 442. 11. In fome cafes, it is not neceffary to fpecify the particular acts which conftitute the offence. As, in Rex v. Eccles and others, M. 24 G. 3. B. R. the defendants, who had been found guilty of a confpiracy, moved in arrest of judgment, because the indictment merely stated that they had confpired together by indirea means to prevent one H. B. exercifing the trade of a tailor, without fetting forth the means used; but the court over-ruled the objection, faying that it was fufficient to state the conspiracy and its object. 12. So in an indictment on ftat. 37 G. 3. c. 70. it is fufficient to charge the defendant with having endeavoured to feduce perfons ferving in his majesty's forces by fea or land from their allegiance, and to incite them to mutiny, without fetting forth the means employed. Rex v. Fuller, Bof. & Pull. 180. (0) Things of Form. 1. IF the offence be prohibited only by ftatute, the indictment ought to conclude contra formam ftatuti. But an indictment for that which is an offence at common law, as for obstructing the execution of an act of parliament, need not, and ought not to conclude contra formam ftatuti. Rex v. Smith et al. T. 20 G. 3. 2 Dougl. 445. 2. In an indictment for an offence at common law, a conclufion of contra formam ftatuti may be rejected as furplufage. Rex v. Matthews, H. 33 G. 3. 5 T. R. 262. 3. An indictment for a nuifance might conclude, ad commune nocumentum of all the king's fubjects. 2 Stra. 688. 4. Indictment for a riot, and riotoufly taking away two waterengines; after verdict pro rege, it was moved in arrest of judgment that there was no vi et armis. Sed PER CURIAM, The ristofe ceperunt, fregerunt, et preflraverunt, implies a force, and the indictment is well enough, Rex v. Wynd et al. 2 Stra. 834. 5. An indictment finding that a perfon hath feloniously broken prifon, without fhewing the caufe of his imprisonment, &c. by which it may appear that it was of fuch a nature that the breaking might amount to felony, is infufficient, 4 Hawk. P. C. c. 25. f57. and vide 2 Stra. 1226. 1268. 6. In an indictment for perjury, on the 5 Eliz. c. 9., the word wilfully is effential, and must be inferted, because the term wilful in the ftatute is a material description of the offence; but it is not neceffary in an indictment for perjury at the common law. Cox's cafe, Cafes in C. L. 82. 7. Indictment on the Black A&t for fhooting at any perfon, must pursue the words of the ftatute, and charge the offence to have been done "wilfully and maliciously;" the omiffion of thefe words is fatal to its validity. Davis's cafe, Cafes in C. L. 556. 8. An indictment of felony must allege the offence to be done feloniously. An indictment of burglary muft lay that the party "feloniously and burglariously did break and enter." High treafon must be laid to be done traiterously; petit treafon felonioufly and traiterously; for though a party be acquitted of petit treason, he may be convicted of murder or manslaughter. 2 Hale's P. C. 184. 14 Vin 389. (S) Quafhed. In what Cafes, and for what Faults. 14Vin. 396. 1. EDWARD Frith, a bankrupt, was indicted at the Old Bailey Seffion, 1738, for fecreting his effects. The prifoner's counsel raised four objections to the validity of the indictment, all which the court held to be good; and the indictment, confequently, vicious. The profecutor then moved, that the indict ment 14 Vin. 400. ment might be quafhed; but THE COURT faid, it was by no means proper to encourage the quashing of indictments after prifoners have pleaded. The motion was accordingly refused; and the prifoner being put upon his defence, an acquittal was entered. Frith's cafe, Cafes in C. L. 12. 2. The court will not give leave to quash an information filed ex officio by the Attorney General. He may ftop the proceedings upon it by noli profequi, and file another. Rex v. Stratton et al. 1 Dougl. 239. 3. The court may use a difcretion, either to quash an indictment on motion for infufficiency, or put the defendant to demur to it but after verdict they are bound to arrest the judgment, if they see the charge to be infufficient. 2 Burr. 1127. 4. Motion for the profecutor to quafh his own indictment is not of course, especially if he has put the defendant to expence, or been guilty of unneceffary or affected delay. Rex v. Webb, E. 4 G. 3. 3 Burr. 1468. 5. An indictment for perjury was removed by certiorari, and the defendant paid cofts for not going on to trial. The profecutor afterwards moved to quash it, which the court refused, unless he would fubmit to pay cofts. Rex v. Moore, 2 Stra. 946. 6. The court will not quafh an indictment for a nuisance, but leave the party to demur to it. Rex v. Bishop, E. 11 Geo. 2. Andr. 220. 7. An indictment at the quarter feffions for perjury at common law, was quafhed for want of jurifdiction. Rex v. Bainton, 2 Stra. 1088. Rex v. Fearnley, 1 T. R. 316. 8. In the case of felony, if it appear, before the prisoner has pleaded or the jury are charged, that he is to be tried for separate offences, the Judge in his difcretion may quafh the indictment. 3 T. R. 106. 9. Indictment against fix jointly and feverally for exercising a trade, quafhed, because there ought to be diftinct indictments. Rex v. Wefon, 2 Stra. 623. (U. 3) Indulgence to Persons indicted. 1. BUT now, by 20 Geo. 2. c. 30. it is enacted, "That all "and every perfon and perfons whatsoever, who fhall be "impeached by the Commons of Great Britain of any high treafon, "whereby any corruption of blood may or shall be made to any "fuch offender or offenders, or to any the heir of heirs of any "fuch offender or offenders, or for mifprifion of fuch treafon, fhall be received and admitted to make his or their full defence "by counsel learned in the law, not exceeding two counsel, who "fhall be affigned for that purpose, on the application of the "party or parties impeached, at any time after the articles of "impeachment fhall be exhibited by the Commons." 2. It is also enacted, by 6 Ann. c. 21. f. 11. "That when any "perfon is indicted for high treafon, or mifprifion of treafon, a "lift of the witneffes fhall be produced on the trial for proving "the faid indictment, and of the jury, mentioning the names, pro"feffion, and place of abode of the faid witneffes and jurors (a), "shall be alfo given at the fame time that the copy of the indict "ment is delivered to the party indicted; and that copies of all "indictments for the offences aforefaid, with fuch lifts, fhall be "delivered to the party indicted, ten days before the trial, and "in prefence of two or more credible witneffes." (a) The cafe of Lord George Gor don, Hil. ter 3. was the firft which happened fince this act took effect. The Attorney-General, as the only method of complying with the directions of the act, moved the King's Bench for a rule upon the sheriff, to deliver to the profecutor a lift of the jurymen he intended to return upon the pannel, in order that the profecutor might be enabled to deliver ruch lift to the prifoner; and the rule was drawn up accordingly, for the terms of which vide Douglas, 591. 3. But it is enacted by 6 Geo. 3. c. 53. "That nothing con"tained in the above laft recited act fhall any wife extend to any indictment of high treafon for counterfeiting his majesty's "coin, the great feal, or privy feal, his fign manual or privy fignet, or to any indictment of high treafon, or to any pro"ceedings thereupon against any offender or offenders who, by any act or acts now in force, is and are to be indicted, ar"raigned, tried, and convicted, by fuch like evidence, and in "fuch manner, as is ufed and allowed against offenders for counterfeiting his majesty's coin." I. (W) Abated by what. Mifnomer or Addition. A T the Old Bailey, in July Seffion 1785, 7. G. Semple was put to the bar to be arraigned on an indictment of larceny. The indictment ftated, "That James George Harold, otherwise "Semple, otherwife Kennedy, LABOURER, one chaife, called a "poft chaife, of the value of 50l., the goods and chattels of John "Lycet, felonioufly did steal, take, and carry away," &c. Before the prifoner had pleaded, it was moved to quafh the indictment, on the ground of informality: the addition being placed after the alias dictus, and not after the first name. The Court, upon the authority of Staundforde, Hale, and Hawkins's Pleas of the Crown, directed the indictment and the prifoner to be detained till the next feflion. Semple's cafe, Cafes in C. L. 469. 2. But if the prifoner, on his arraignment, plead to the indictment, this error is thereby cured. Hannam's cafe, ib. (n). 3. To a plea of mifnomer, which may be pleaded ore tenus, the clerk of the arraigns may reply that the prifoner is known as well by the one name as the other. Dean's cafe, ib. 535. 4. Sir Matthew Hale fays, there is little advantage comes by thefe pleas to the prifoner; and as to the profecutor, he recommends, as the fafer way, to allow the plea both as to the furname and christian name; for he that pleads mifnomer of either must 14 Vin.403. |