The property stated to have been received, should agree with that averred to be stolen; but, in Morris's case (u), where the indictment charged the principal with stealing two bank-notes, the property of S. S. and charged the accessory with receiving the said notes, the property and chattels of the said S. S. it was holden, that the word chattels might be rejected as surplusage.

Though, in general, the offence of high treason be of so heinous a nature, that all who participate in it are considered to be principals, yet it seems, that one who becomes a traitor, by receiving the principal traitor, is so far to be considered in the light of an accessory, that he cannot be convicted before the principal, and that he ought to be specially charged with the criminal reception of the prin cipal traitor (x).

Mrs. Lisle was indicted for "entertaining and concealing John Hicks, a false traitor, knowing him to be such," and was convicted; but her attainder was afterwards reversed, by an act of parliament, which declared her prosecution to have been irregular and illegal, since the said Hicks had not, at the time of the trial, been attainted or convicted of any such crime (y).

Where an homicide amounts to murder, because it is committed on the body of an officer in the execution of his duty, or of any private person specially protected by the law, it seems to be sufficient, in all cases, to charge the party with murder, in the common form, without any special averment as to the situation of the officer (z) killed, for the gist of the accusation is the killing with malice prepense, which constitutes the aggravation, and, as al

leged in the indictment, is an inference arising upon evidence, from the circumstances of the case. But if the office be alleged, it is sufficient to aver, generally, that the person was a constable, without setting forth any circumstances relating to his appointment (a).

III. From other circumstances.

It has already been observed, that no indictment is sufficient which alleges an act or omission in itself innocent, unless it proceed to disclose circumstances which render such act or omission illegal. But it seems, that whether the offence be of common law or statutable origin, if a prima facie illegality be shewn, the indictment will be sufficient, for it is in general unnecessary to negative any excuse or justification, the affirmative of which would be an answer to the charge; such averments would be unnecessary, since the prosecutor would be under no obligation to prove them, and therefore the allegation and proof of such circumstances as would avail by way of justification, come most properly from the defendant (b).

In the case of the King v. Baxter (c), the defendant was indicted under the stat. 22 G. 2. c. 58. s. 1. which enacts, that the receiver of certain stolen goods may be indicted as for a misdemeanor, although the principal felon be not before convicted of the said felony, and whether he is amenable to justice or not. It was moved, in arrest of judgment, that the indictment was defective, inasmuch as it had not stated, negatively, that the person who had stolen the goods had not been convicted. But all the judges held that the averment was unnecessary, for that it would

(a) Gordon's case, Leach, 381. R. v. Halland, 5 T. R. 607.

(b) R. v. Baxter, 5 T. R. 84.

R. v. Pollard, 2 Lord Ray. 1370. 2, Haw. c. 25. s. 112. 1 Sid. 303.

(c) 5 T. R. 85.

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be stating a mere negative averment which the prosecutor would not be bound to prove; that the fact was matter of evidence to be proved by the defendant, which, when proved, would entitle him to an acquittal; that this opinion was warranted by the case of the King v. Pollard (d), which was an indictment on the stat. 5 Ann, c. 31. s. 5.; and the objection was, that the prosecutor had not averred that the principal could not be taken, but the averment was not necessary; and that the principle was to be found in still older authority, 1 Sid. 303. and 2 Haw. c. 23. s. 112, where it is stated, that if there be any description in the negative, the affirmative of which would be a good excuse for the defendant, the proof of it lies on him, and need not be stated in the indictment.

But the above rule, as cited from Hawkins, is too general, for it has been holden, by great authorities, that a negative description must be averred, where it is an essential ingredient in the offence. According to Lord Hale, where an offence is made felony, or otherwise punishable by act of parliament, though the indictment must take in the circumstances which in the body of the act make up the offence, yet if by proviso in the same statute, or by any subsequent statute, some cases or circumstances are omitted out of the act, the indictment need not mention them, and qualify the offence so as to exempt it out of the proviso, but the party shall have the benefit of the proviso by pleading not guilty (e).

In Palmer's case, the prisoner was indicted under the stat. 8 & 9 W. 3. c. 26. s. 6. which enacts, that "if any person or persons shall take, receive, pay, or put off, any counterfeit milled money, or any milled money whatsoever, unlawfully diminished and not cut in pieces, at and for a lower rate and value than the same by its denomination

(d) Ld. Ray. 1370.

(e) 2 Hale, 170.

doth or shall import, or was coined or counterfeited for, they shall be guilty of felony." The indictment charged, that the prisoner had put off ten pieces of counterfeited milled money, made and counterfeited to the likeness and similitude of the current silver coin of the realm, called shillings, for 21 pieces of the current silver coin of the realm, called shillings, being a lower value than they by their denomination did import, &c. No count, in the indictment, stated that the counterfeit money, charged to have been put off, had not been cut in pieces, and the court was clearly of opinion that the indictment was bad, for the words not cut in pieces, are a material part of the description of the offence (ƒ).

In Jones's case, an information was holden to be insufficient for not averring, that certain goods, imported from Holland, were not of the growth of Holland (g).

In the case of the King v. Bell (h), which was an indictment under the stat. 8 & 9 W. 3. c. 26. for having a coining press in possession, every thing which shewed that the defendant had no authority was negatively set out, and Lord Mansfield (i) held that this was necessary, and a point settled by all the authorities. And Mr. Justice Dennison observed, " "there is a known distinction between exceptions in a statute, by way of proviso, which need not be set forth, and those in the purview of the act: and the case of R. v. Bell is very strong to this point, upon an indictment for having coining instruments in his custody.

It had been holden indeed (k), by all the judges, soon.

(f) Palmer's case, Leach, 120. coram Sir W. Blackstone.

(g) Hardr. 217. Vin. Ab. tit. Inf. 418.

(h) Foster, 430.

(2) Burr. 148.

(k) East. P. C. 167. Cro. Cir. Comp. 361. ed. 1. Fost. 430.

after the passing of the stat. 8 & 9 W. 3. c. 26. that the indictment ought to negative all the exceptions contained in the enacting clause, since the want of the authority mentioned in the exceptions, is part of the description of the offence. The same point was decided in the early part of the last century, in the case of a prisoner who had been convicted before Mr. J. Turton, at York (1).

And in the case of R. v. Jarvis (m), Lord Mansfield observed, "it is a known distinction, that what comes by way of proviso in a statute, must be insisted on by way of defence by the party accused; but, where exceptions are in the enacting part of the law, it must in the indictment charge that the defendant is not within any of them."

In the case of convictions, it has long been fully (n) settled, that the information must negative the exceptions contained in the purview of the statute upon which the conviction is founded (o). In the case of the Queen v. Matthews (p) indeed, it was holden, that in a conviction under the stat. 4 & 6 Ann. c. 14. it was sufficient to allege, generally, that the defendant, not being qualified according to law, &c.; but, in the subsequent cases of R. v. Hill (q), R. v. Pickles (r), and R. v. Jarvis (s), it was holden, that the several qualifications in a conviction, under