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ment (), pleas (g), verdict (h), judgment (1), writs of error (k).
To these is added a collection of Precedents, illustrated with a few notes. I have examined these forms with attention, and have intimated such doubts concerning them as they oc
How far the Indictment should shew the Offence to be within the Jurisdiction of the Indictors.
I. Of the Locality of Crimes at Common Law, p. 1. to 5. II. Statutable Exceptions, and general Rules as to Indictments founded upon them, p. 5 to 19.
III. In what County the Indictment should be laid in par- . ticular Cases at Common Law, p. 19 to 26.
IV. Of noticing the Jurisdiction, when it depends upon some other particular Circumstances, p. 26.
THE power of jurors and others to inquire concerning offences, is usually circumscribed (a) and local; it is therefore essential to the validity of an indictment, to to shew that the offence (b) was committed within the jurisdiction of those by whom the inquiry is made. And as an indictment will be defective which does not shew this, a fortiori it will be vicious, if it allege that the of fence was committed in some place beyond the jurisdiction of the indictors.
By the simple rule of common law, the attention of jurors was confined with great strictness to the county or division for which they were returned;-a rule productive of so much inconvenience, that it was found neces sary to introduce those statutable exceptions to it which will presently be noticed.
(a) 3 Ins. 49. Summ. 203.
Eliz. 237. Dyer, 69, 2 Keb. 302. Cro. J. 276. Keilw. 89.
Lord Hale says, "The grand (c) jury are sworn to inquire pro corpore comitatús, and therefore cannot regularly inquire of a fact done out of that county for which they are sworn, unless specially enabled by act of parliament, except in some particular cases." Too strict an adherence to this doctrine produced an enormous failure of justice it frequently happened that an offence begun in one county was consummated in another; the consequence was, that the offender escaped with impunity, since he could not be indicted by a jury of either.
In Danby's (d) case, under the statute 8 H. 6. c. 12. against stealing records, &c. it was held, that if the offence were to be committed partly in one county and partly in another, the offender could not be punished in either. But Lord Hale says, he might in such case be punished for the misprision of the felony in either county (e).
So under the (f) stat. 3 H. 7. c. 2., against the forcible abduction of an heiress, and afterwards marrying her, &c. it was held, that if the forcible abduction were confined to one county, and the marriage took place in a second, the offender could not be tried in either.
But if, in such case, the forcible abduction had been continued into the county where the marriage took place, the offence would have been complete in that county, and the offender might have been tried there (g)
(c) Hale, 163. Bell's case, 9 Car. B. R.
(d) Hale, 651, 2. (e) Ib.
(f) Fulwood's case, Cro. Car. 488.
(g) So if a man commit a robbery in the county A., and carry the goods into the county B., he is indictable of the lar
ciny in B. at common law, though not of the robbery; for it is theft wherever he car
ries the goods. 7 Co. Bulwer's case, 2 Hale, 163. Br. Ind. pl. 26. Br. Cor. pl. 171. Hence an acquittal of the larciny in any one county ought to serve him for plea in any other. Br. Cor. 140. 4 H. 7. 5.
In these instances the several acts, constituting the offence, were personally committed by the offenders in different counties: but the mischief resulting from the general rule was far more extensive; for it seems to have been held, that no collateral circumstance could be inquired of, if it happened in a second county, though the facts in which the offender was personally concerned, were confined wholly to the first; so that (h) if A. inflicted a mortal wound on B. in one county, of which B. died in the adjoining one, A. could be indicted in neither; for a jury of the first could not take notice of the death in the second, and a jury of the second could not inquire of the wounding in the first (i).
But it has been held, that if the common law does not take cognisance of the original taking, the offence cannot be inquired of at common law, though the goods be afterwards carried by the offender into a county. 3 Ins. 113. 13 Co. 53. And to remedy this supposed defect, an act was passed to authorize such trials in certain cases. Vide infra, p. 10. and the stat. 44 G. 3. c. 92, s. 7. Where goods stolen in Scotland or at sea, are brought into the body of a county, the case seems to embrace every ingredient of larçiny at common law; the property in the goods remains unaltered, and there is a caption.
and asportation, animo furandi, within the county.
(h) See pr. to stat. 2 and 3
E. 6. c. 24. Staun. 89. 2 Hale, 163. 6 H. 7. 10. 10 H. 7. 28. 10 H. 7. 20. Fitz. Ind. 23.
(i) Though it appears from the preamble to the st, 2 and 3 E. 6. c. 24., that such was the law at that time with respect to indictments of homicide, yet it was otherwise with respect to appeals of death, which, when the blow was struck in one county and the party died in another, used to be tried by a jury from both counties. 4 H. 7. 18. Br. Cor. pl. 141. 1
Haw. c. 31. s. 13. 2 Haw. c. 23. s. 35. 2 Ins. 49. But when the counties could not join, the appealfailed. 2 Ins. 49.
But it was held, that an indictment must be taken in one county only. 4 H, 7, 18. And the difficulty was fre
And the same nicety applied to the case of all accessories in one county to a felony committed in another, who, on account of the same difficulty, escaped unpunished (k).
quently avoided by carrying the dead body back into the county where the blow was struck, and there a jury might inquire both of the stroke and of the death. 6 H. 7. f. 10. 1 Haw. c. 31. s. 13. 7 H. 7. f. 8. And even without such removal it seems to have been doubted, whether a jury of the county, where the stroke was given, might not inquire of the felony. See 7 H. 7. 8. where Tremaile and Hussey, justices, were of opinion, that an indictment, which laid the blow in Middlesex, and the death in Essex, was good, because the striking is the principal act, and they who can take notice of the principal, may take notice of the debt, as an accessory, though in another county; but Fairfax, J. differed from them, and Sir Robert Brooke, in his abridgment of this case, agrees with Fairfax. Br. Ind. 31; and see 2 Haw. c. 25. s. 36.
And at common law the coroner, super visum corporis, might inquire of all accessories or procurers before the fact, though the procurement were in another county. 1 Hal. 427. 43 E. 3. f. 17.
(k) Staunf. b. 1. c. 46. 2 and 3 E. 6. c. 24. 1 Hale, 623. A man was indicted in Middlesex, for that he in the county of Middlesex procured J. S. to kill T. B.; by means of which, the said J. S. did kill T. B. in the county of Berks; and the defendant appears to have been discharged, not because such an indictment would not lie, but because the justices and coroner of the county of Berks certified, that the principal had not been indicted before them of the said felony. 9 E. 4. 48. Staunford, b. 1. c. 46. lays it down generally, that if A., committing a felony in one county, be received before attainder by B. in another, it is not felony in B., because those of the county where he offended, cannot notice the felony in the other county: and he cites the above case, 9 E. 4. 48. which does not warrant his position, and also 43 E. 3. f. 17., which was an appeal by a widow against two in the county of Kent, for receiving a third in the county of Dorset, who had killed her husband in Kent; and assuming those defendants to have been discharged, which,