CHAP. VIII. Of the Averment of Circumstances collateral to the Act or Omission, which render that Act or Omission criminal. I. Situation or character of the Defendant, p. 161. III. Other Circumstances collateral to the principal Act, negative Averments, &c. p. 171. SINCE it is of the very essence of an indictment to specify the nature of the crime charged upon the defendant, it may be laid down as a general rule, that the criminal nature of the act must appear upon the face of the indictment, and that if the act or omission be not in itself illegal, it must be shewn to be so from the particular circumstances of the case, which cannot be supplied by any intendment whatsoever (a). Thus, an indictment charging a man with a nuisance in respect of a fact which is lawful in itself, as the erecting of an inn, and which only becomes unlawful from collateral circumstances only, is insufficient, unless it set forth some circumstances which make it unlawful (b). The criminality of an act, in itself innocent, may arise either from the situation or knowledge of the defendant himself, or from that of others, or from other particu (a) 2 Haw. c. 25. s. 57. (b) 2 Roll. Rep. 345. Pal. 36S. 374. lar circumstances contained in the definition of the offence. I. From the situation or character of the defendant. Where the offence consists in the omission of some duty which the law throws upon the defendant, the indictment must always shew the defendant's liability to perform such duty, unless it appear by a necessary implication of law; and in some instances must specify the circumstances which created the duty, with great pre cision. Thus, in an indictment against a parish for the nonrepair of an highway, or against a county for not repairing a bridge, it is sufficient to allege that the road is out of repair, or the bridge in decay; because the parish and county are severally bound, by the law, to the performance of such duties, and therefore an express averment of their obligation is unnecessary. But if a private person be indicted for not repairing a road, it must be shewn that he was under a legal obligation to repair it by reason of his tenure or otherwise (c). So where the inhabitants of a particular division of a parish are indicted for the non-repair of a road, since the obligation must arise from custom or prescription, and does not exist at common law, the indictment must shew the custom, prescription, or reason by which they are bound (d). An indictment set forth that the defendant being qualified to be constable, was debito modo electus to serve that office, at Islington, and that he had notice of it, but did not take the oath to execute that office. It was objected that the indictment did not set forth that the defendant had been chosen by one having sufficient authority, and (c) 1 Vent. 331. 1 Str. 187. (d) 5 Burr, 2700. R. v. M Broughton, 3 Keb. 301. 3 Bac. that it did not appear how he was chosen, and whether he had had notice, and for this exception the indictment was quashed (e). So an indictment for not receiving an apprentice is bad, unless it appear, on the record, that there was a binding within the 23d of Elizabeth, for otherwise it would not appear that the defendant acted illegally in refusing to take the apprentice (ƒ). So an indictment for a contempt in not executing a warrant, ought to set forth the nature and tenor of the warrant (g). In an indictment for the murder of a British subject in Portugal, it was held to be unnecessary to allege either the prisoner or the deceased was a British subject (h). How averred. Where it is necessary to aver the situation or character of the defendant at the time of the act or omission, it seems to be settled that it is sufficient to aver that he being such did the act (i). An information under the statute (k) which enacts, that if any person, &c. above the age of 14, shall unlawfully take a maid or woman unmarried, &c. charged, that the defendant, being above the age of 14 years, did take a young maid away, &c.; it was moved, in arrest of judgment, that the information did not aver that the defendant was above the age of 14 years at the time of taking, but only that he being above the age of 14 years, did take. (e) 5 Mod. 96. Comb. 328. See R. v. Burder, 4 T. R. 778. 1 Cowp. 683. (f) Str. 1268. R. v. Trevi an. g` 1 Vert. 305. Before all the Judges in the Exchequer Chamber. Easter Term, 55 G. 3. (i) 2 Haw. c. 25. s. 112 Cro. J. 610. 2 Mod. 128. 2 Roll. Rep. 286. Moor, 606. 2 Lev. 229. Ray. 378. Keb. 852. (k) 4 & 5 P. & M. c. 8. But the court held that the information was good, and distinguished between the case where the existens is added to the person acting, and where it is applied to the subject of the act; that if an indictment for a forcible entry should aver that the defendant on such a day, with force and arms, did enter into such a house, being the freehold of J. N. without saying, then being the freehold, the indictment would be bad; but that in the principal case the existens being added to the person, carried the sense to the time of the offence committed (7). So if a man be indicted for not coming to church, it is sufficient to say that existens of the age of 16 years, he did not come to church (m). And it seems to be a general rule, that where the criminality of the act or omission arises from the particular situation of the party, which operates as a disqualification, it is unnecessary to aver that disqualification with circumstances of time and place (n). So in an indictment against a defendant for misconduct in a particular office or situation, it is sufficient to allege, generally, that he was in such an office or situation at the time. In the case of the King v. Holland (o), the indictment stated that he was a counsellor in the room and place of R. M. during the period in which certain malversations in office were alleged to have been committed by him; but the court held that the allegation was sufficient, and observed, that in criminal prosecutions, and actions against justices of the peace and clergymen, for any offences committed by them in their respective situations, constant practice had settled that, as against them, the exercise of their office is proof of their obligation. Where a statute visits a second offence with an increased punishment, it is necessary to shew a previous conviction for the first offence, by setting out the record (p). And it should be shewn that the second offence was committed subsequently to the first conviction (q). From the criminal knowledge of the defendant. Where a particular knowledge on the part of the defendant renders what he did criminal, the fact of his knowledge must be expressly averred (r). And this important averment is the principal one in a very large class of offences, comprehending all accessories after the fact, all utterers of forged notes and counterfeit money, &c. for in such case the very essence of the crime consists in the guilty knowledge of the defendant. Staunforde, speaking of indictments against those guilty as accessories in receiving felons, after laying it down as a general rule, that the indictment must state the manner of the felony, and the knowledge of the party receiving the felon, excepts the case where the felon has been attainted in the same county, for then he says it is not necessary to make mention of the manner of the felony (s), for it is sufficient that he was attainted, though the attainder be erroneous; in which case it was not lawful for any one to receive him, for every one is bound to take notice of this attainder, which is matter of record in the same county. But this doctrine seems to have been materially contradicted (t). Lord Hale says, "I never thought that opinion of (p) East's P. C. 919. 1 Hale, 686. 1 Haw. c. 70. s. 25. 3 Tr. 172. (g) East, P. C. 919. (r) 2 Haw. c. 25. s. 66, 67. (s) Staun. 96. 8 E. 4. f. 3. (t) 3 P. Wms. 494. |