the statute of Ann, ought to be expressly negatived (t). In a penal action indeed, upon the same statute, it has been holden to be sufficient, to negative the qualifications generally; yet Mr. J. Foster, in the case of the King v. Jarvis, intimated his opinion that this was not sufficient (u). These, indeed, were cases of summary conviction, before justices of the peace, but there does not appear to be any distinction, in principle, between information before magistrates and convictions; for every thing essential to the true description of the offence, ought to be alleged in an indictment, and that which is not essential to such a description is unnecessary in a conviction; and the court, in the case of the King v. Jarvis, seem to have considered the same arguments as applicable to (a) indictments as well as convictions. Hence it may be inferred, that the position cited from Hawkins is too general, and that it does not extend to exceptions contained either in the enacting clause, or in a clause to which it immediately refers; and it is to be remarked, that in Baxter's and Pollard's cases, there was no necessity to call in aid so general a rule, for there the offence consisted in receiving stolen goods, knowing (t) In the case of R. v. Theed, which was the case of a convic tion under the stat. 8 Ann. c. 9. s. 10. it was not alleged that the search was made in the day time, or that the officer was attended by a constable, yet the conviction was holden to be good, for the court would not presume an illegal act. 2 Ld. Ray. 1375. tamen qu. (u) This has, however, been sanctioned by many precedents, under the stat. 5 Ann. c. 5.; but, in general, in a declaration under a penal statute, it is necessary to negative the exceptions in the purview, 1 T. R. 444. 7 T. R. 27. (x) See also the opinions of Lawrence and Le Blanc, justices, in the case of R. v. Stone, 1 East, 644. them to have been stolen; and though the authority of the court to try the offenders depended upon the negative circumstance that the principal felons had not been convicted, the definition of the offence itself remained just as it was before, wholly clear from any negative description. The instance cited by Serjeant Hawkins, in support of this very broad position, is the case of an indictment for not going to church, in which it is unnecessary to aver, that the party had no reasonable excuse, &c.; it is a full answer to this to observe, that the stat. 29 Eliz. c. 6. s. 5. has rendered such an allegation unnecessary, by prescribing a general form of indictment. And from analogy to the decisions in cases of convictions, it seems to be necessary in an indictment, not only to negative the exceptions in the purview of the statute, but also those to which the enacting clause immediately refers (y); and that, if exceptions be negatived, where it is not necessary they may be rejected as surplusage (z). In an indictment for not repairing a highway founded on a prescriptive liability with certain exceptions, by virtue of a statute, it must be alleged that the highway in question is not within the exceptions (a). (y) R. v. Pratten, 6 T. R. 559. (z) R. v. Hall, 1 T. R. 322. for further observations upon indictments founded upon sta tutes, see tit. Indict. on Statute. (a) R. v. Mayor of Liverpool, 3 East, 86. 177 CHAP. IX. Of averring the Defendant's Intention. To render a party criminally responsible, a vicious will must concur with a wrongful act (a). But though it be universally true, that a man cannot become a criminal, unless his mind be in fault, it is not so general a rule, that the guilty intention must be averred upon the face of the indictment. In cases of treason, the traitorous inclination and design is expressed by the word proditorié. And in all cases of felony the act must be alleged to have been committed felonicé, a word denoting the corrupt intention of the defendant to perpetrate the particular species of felony with which he is charged. But where a particular intention, either at common law, or by the enactment of a statute, is essential to the offence, that intention must be expressly and plainly averred. Thus, in an indictment for burglary it is necessary to aver, either that the defendant did break into the dwelling-house and steal certain property, or that he broke in with intent to commit a specific felony (b); and the technical averment that the act was committed burglariter, does not in the latter case supply the want of a direct allegation of the defendant's intention. And there seems in general to be a distinction between cases, where the attainment of a particular criminal object constitutes the (a) Haw, c. 73. s. 1. 5 Co. 125, 5 Mod. 165. Salk, 418. N 4 Bl. Comm. 125. R. v. Ld, crime, and offences resting merely in tendency. For where the end is actually accomplished, it must naturally be presumed, that the defendant had that end in view; but where the injurious consequence does not follow, the question of intention is more ambiguous, and therefore ought to be precisely averred on the face of the indictment. Thus, in all indictments for the publication of libels, it is necessary to aver, that the defendant published the illegal matter maliciously, or to describe his intention by some equivalent epithet (c). Where the statute creating a particular offence, or inflicting a heavier punishment upon one already existing, makes use of particular epithets as descriptive of the of fender's intention, it is in general necessary to adopt them in framing the indictment. Therefore, an indictment for the clipping and washing of coin, which offence was made treason by stat. 3 & 18 Eliz. must express (d) that it was done causá lucri. So an indictment in a præmunire, for aiding one being a principal maintainer of the see of Rome, is bad, if it omit "to the intent to set forth the authority, &c." which are part of the qualification of the offence contained in the sta tute (e); and in general, wherever a particular intent is part of the statutable definition of the offence, it should be averred in the terms of the act. Where a statute creating a felony or other offence, makes no mention of the intention accompanying the prohibited act, it does not seem necessary to make any averment respecting it in the indictment. Thus, in an indictment under the stat. 3 H. 7. c. 2. for the taking (c) Sty. 392. Per Ray. C. J. 1 Vin. Ab. 533. pl. 3. (d) 2 Hale, 189. away, &c. of an heiress, &c. though it is usual to aver the taking to have been eá intentione ad ipsam maritandam, yet it has been holden to be unnecessary to make that averment, because the statute has no such words as eá intentione; but, according to Lord Hale, it is safest to use those words (ƒ). With the exception of one particular species of treason, a mere guilty intention cannot constitute an offence against the law; but when an act has been done (g), then the law judges not only of the act itself, but also of the intention with which it was done; and though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable (h). But it seems to be a general rule, that in all such cases, where the act becomes criminal and punishable on account of the intent with which it was committed, the particular intention must be averred. Thus where several persons were indicted for carrying one infected with the small-pox from one parish to another, it was holden necessary to aver, that it was done with an ill intent (i). And in the case of the King v. Phillips (k), Lord Ellenborough, C. J. observed, "if any particular bad intention accompanying the act, be necessary to constitute it a crime, such intention should be laid in the indictment." In many cases the allegation of intent is merely formal, being no more than the result and inference which the law draws from the act itself, and which therefore requires no proof, but what the act itself sup (f) 1 Hale, 660. (g) See Parker's case, Leach, 48. indicted for having counterfeit money in his possession with intent to utter it. (h) R. v. Schofield, Cald. 897. R. v. Higgins, 2 East, 4. (2) Andr. 162. |