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ment is not criminal without something done in pursuance of it.
But in the case of the King v. Lady Lawly (n), the in dictment charged that the defendant, knowing that J. C. was indicted for perjury, endeavoured to keep away a material witness for the king, on which there was judgment for the crown.
In the case of the King v. Schofield, the attempt of the defendant to set fire to his own house was holden to be a misdemeanor (). And a case was cited which had been tried before Baron Adams, at Shrewsbury, where the indictment charged the defendant with an attempt to suborn one to commit perjury, which, upon reference to the judges, was unanimously holden to be a misdemeanor. So it was ruled in Johnson's case, where the defendant solicited a witness to commit perjury (p).
So in the case of the King v. Plympton (q), the promising money to a member of a corporation to induce him to vote for the election of a mayor, was holden to be indictable.
So in the case of the King v. Vaughan (r), an indictment was supported against the defendant for attempting to bribe the Duke of Grafton, who was then a cabinet. minister and a member of the privy council, to give the defendant a place in Jamaica.
In a recent case, R. v. Higgins (s), the defendant was charged with the soliciting and inciting of one I. D. a servant of J. P. to take, embezzle, and steal, a quantity of his master's goods; and, after conviction, it was objected for error, that no offence was sufficiently alleged on the
(n) Fitzgib. 263. (0) Cald. 397.
(p) 2 Show. 1.
(q) 2 Ld. Ray. 1377.
(s) 2 East, 4.
face of the indictment; and it was contended, that a mere intent to commit a crime, was not indictable; and an attempt was made to distinguish the case from some of those above cited, on the ground that no act had been done in pursuance of the unlawful intent; and many cases were quoted for the purpose of shewing, that a mere intent without any act was not indictable; but the court held, that this argument was a mere fallacy, for that the solicitation itself was an act. And Lawrence, J. said, that he had seen similar indictments,-one of the King v. Broom, in Northumberland, when at the bar, and another against Guy, and another drawn by Mr. Justice Ashurst for soliciting one to kill the Chevalier D'Eon.
With respect to the description of the solicitation or endeavour, it seems that general words are sufficient, be cause the endeavour, attempt, or solicitation, is in general made up of a number of petty circumstances, which cannot be set out on the record.
Therefore, though some of the old indictments for endeavouring to suborn, state an offer of money (t), yet it has been deemed sufficient to charge an endeavour to suborn generally, without stating the means. So in an indictment for endeavouring to keep away a witness (u). Tilley (a) was indicted under the stat. 16 G. 2. c. 31. against aiding and assisting prisoners to attempt to escape out of lawful custody;" the indictment stated, that the defendants were aiding and assisting one Isdaile Idswell, then and there being a prisoner, &c. After conviction, though a motion was made in arrest of judgment, on account of an informality in the indictment, it was not ob
(t) Trem. P. C. 168, 174. (u) Fitz. 263. See also Ld. Ray. 1377.
(x) Tilley's case, Leach, 759.
jected that the means used by the defendants, in aiding and assisting, ought to have been specified.
So under the stat. 23 G. 3. c. 13. against enticing artificers out of the kingdom, it is sufficient to aver, generally, that the defendant did contract with a certain artificer to go out of this country, (y) &c.
The defendant Fuller () was indicted under the stat. 37 G. 3. c. 70. which enacts, that "any person who shall maliciously and advisedly endeavour to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his majesty, or to incite or stir up any such person or persons to commit any act of mutiny, or to make, or endeavour to make any mutinous assembly, or to commit any traitorous or mutinous practices, &c. shall, on being legally convicted of such offence, be adjudged guilty of felony without benefit of clergy."
The first count in the indictment averred, that the defendant did feloniously, maliciously, and advisedly endeavour to seduce Matthew Lowe, he the said Matthew Lowe then and there being a person serving in his Majesty's forces by land, from his duty and allegiance to his said majesty. The second count stated, that he did feloniously, maliciously, and advisedly, endeavour to incite and stir up the said Matthew Lowe, he the said Matthew Lowe then and there being a person serving in his said Majesty's forces by land, as aforesaid, to commit an act of mutiny, and to commit traitorous and mutinous practices. After conviction, it was moved, in arrest of judgment, that the indictment ought to have stated the means by which the prisoner had endeavoured to seduce Matthew Lowe from his duty and allegiance, as charged in
(y) Myddleton's case, 6 T. R. 739.
(z) R. v. Richard Fuller, Leach, 916.
the first count, and to incite him to commit an act of mutiny, and traitorous and mutinous practices, as charged in the second count; but the judges were unanimously of opinion, that the case was similar to those of indictments for conspiracies, where the offence is holden to be sufficiently described by the words, "conspire, maintain, aid, and abet," without shewing in what manner, and by what means, the conspiring, maintaining, aiding, and abetting were produced; and that, as an endeavour to seduce, to intice, and to stir up, is a conclusion of fact arising from a variety of circumstances, which in itself is not capable of any precise definition or description, the fact is fully and only capable of being expressed by the word endeavour..
It is to be remarked, that the preamble of the statute, upon which the indictment was founded, recites, that "divers wicked and evil disposed persons, by the publication of written or printed papers, and by malicious and advised speaking, had of late industriously endeavoured to seduce persons serving in his Majesty's forces, by sea and land, from their duty and allegiance to his majesty,. and to incite them to mutiny and disobedience." And yet the indictment did not, in either count, specify whether the endeavour was made by these means, or by either of them.
In the case of the King v. Higgins (a), above alluded to, the indictment charged, that the defendant did solicit and incite one James Dixon, a servant of J. Phillips, to take, embezzle, and steal, a quantity of twist, of the goods and chattels of his master; and, upon this indictment, the judgment of the court below was affirmed upon a writ of error.
Where a defendant is indicted for a misdemeanor, committed by the soliciting another to do that, which, if done, would amount to a felony, and render the defen
(a) 2 East, 5.
dant, as an accessory before the fact, also guilty of felony, it is unnecessary to negative the commission of the felony, for it cannot be intended that a felony (b) has been committed where none is charged.
IV. Offences consisting of misconduct in office; as by extortion, or other breach of duty, &c.
In an indictment against a person, or body of persons, for misconducting themselves in office, whether the offence consist in misfeasance or nonfeasance, it is essential to set forth the particular instance of misconduct, with its circumstances. Hence it is sufficient to allege against a constable, generally (c), that he conducted himself improperly and negligently in the execution of his office. In the case of the King against Hollond and others (d), who were officers in the service of the East India Company, the indictment charged them with malversation in office; one count set forth a letter, requiring them to commence and prosecute war against Tippoo Sultaun with all possible vigour and decision, and then alleged, by way of breach, that the defendant Hollond did not commence and prosecute war against Tippoo Sultaun with all possible vigour and decision. The court, upon demurrer, held, that this count was defective, because it did not communicate to the defendant what was meant to be proved against him upon the trial.
And the court, in the same case, were of opinion, that every fact material to constitute guilt, should be alleged with averments of time and place.
Where an officer, under colour of his authority, extorts money or other property, it seems to be proper to set out the circumstances with a considerable degree of precision; for though in Cover's case (e) it was holden, that an in(d) 5 T. R. 607.
(b) R. v. Higgins, 2 East, 5. (c) R. v. Winteringham, Str. 2.
(e) Sid. 91. Keb. 357.