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plies but where the act is indifferent in itfelf, the inten tion with which it was done then becomes material, and requires, as does any other substantive matter of fact, specific allegation and proof.
It is frequently advisable to state specially the intention with which a particular offence was committed, though the offence itself, which is the foundation of the prosecution, be entirely independent of the particular intention charged. Thus, in an indictment for an assault, it is usual, for the purpose of aggravating the punishment, to aver, that it was made with intent to commit murder or rape, according to the fact, in order to guide the court in their infliction of punishment.
The same burglarious entry may be laid, in several counts of the indictment, to have been made with different intents; as, with intent to steal the goods of J. D. in the first count, and with intent to murder him in the se cond; for the facts and evidence are the same (7).
With what particularity.
When an evil intent, coupled with a particular act, is criminal, it does not appear to be essential to state the particular way in which the act was intended to produce the mischief: thus, as has already been noticed, it is unnecessary, in an indictment for forgery, to shew the particular method by which the defendant intended to render his fraud profitable; but it is sufficient to allege, that he forged the note, &c. with intent to defraud a particular person. But, in such cases, the intent must be proved as laid (m), and a variance would be fatal; therefore, in case of burglary, if the entry be alleged to have been made with intent to commit a specific felony, the indictment
(1) R. v. Thompson, Norfolk, Summ. Ass. 1781. East, P. C.
(m) R. v. Powell, Leach,
will not be supported by evidence of an entry with intent to commit another kind of felony (n): so, if A. be indicted for a burglary, with intent to steal the goods of J. W. he cannot be convicted upon evidence that he intended to steal the goods of J. D. (o); for the averment is material, and cannot be rejected as surplusage. So an averment of an intent to steal goods, is not supported by proof of an intent to rescue goods from an excise officer (p). And though where the burglary includes a larciny, it is sufficient to lay it to have been done with intent to steal, &c. the converse of the proposition is not true; for a burglary laid with a larciny, will not be supported by proof of a burglary with intent (q) only, for these are different offences, and an acquittal of the latter cannot be pleaded in bar of an indictment for the former (r). If an act be charged to have been done with a felonious intent to commit a crime, and it appear upon the face of the indictment that the crime, though perpetrated, would not have amounted to a felony, the word felonious being repugnant to the legal import of the offence charged, may be rejected as surplusage (s).
(n) 1 Hale, 561.
(0) R. v. Jenks, East, P. C. 514. See the same case, Leach, 896. from which it appears, that the objection was taken at the trial, but over-ruled, and the prisoner was convicted.
(p) R. v. Dobbs, &c. E. P. C. 513.
(q) East, P. C. 514. (r) R. v. Vandercomb and Abbott, Leach, 816.
(s) R. v. Scofield, East.
P. C. 1029. Cald. 397. But qu. whether the word can be rejected as surplusage where the defendant is charged with having feloniously committed an act which is not felony, and not merely, as in the above case, with having attempted (with a felonious intent) to do that which is not felony. See R. v. Holmes, Cro. Car. 376. Kel. 29. aflir. 2 Hale, 172.
Of the Description of Persons, Places, and Things, connected with the Offence, with Names, Quantity, and Value.
I. Certainty of Persons, p. 182. II. Of Places, p. 188.
III. Of Things moveable, p. 192.
ACCORDING to Lord Hale, there must be a certainty in every indictment touching the thing wherein or of which the offence is committed (a).
This certainty seems to consist in the special description of the persons, places, and things mentioned in the indictment, with their respective names, situation, extent, nature, quantity, number, value, and ownership.
Certainty in the names of persons and things, the situation of places, and the names and ownership of property, is n general substantial, and the allegations concerning them must be strictly proved. Magnitude, quantity, number, and value, are, in some instances, essential to the description of the offence, and should, it is said, be stated with certainty, to enable the court to judge of the heinousness of the offence, and to inflict a proportionate punishment; but it seldom happens that a variance from these allegations is material.
I. Of the description of persons with certainty of names. In an indictment for murder, it is in general essential to state the name of the deceased, and inquests, for the want (a) 2 Hale, 182;
of this particularity, have frequently been holden to be defective (b).
And though indictments have formerly been allowed, which charged the defendants with suffering divers bakers to bake, &c. against the assize, for distraining divers persons without cause, without specifying the manner of those so suffered to bake or distrained upon: yet, according to latter authorities (c), such indictments are insufficient, for they do not enable the court to judge of the measure of punishment which the offence calls for, neither do they apprise the defendant of the facts relied upon, so that he may be prepared for his defence; and an acquittal upon so general a charge, would not enure to his defence. upon a subsequent indictment founded upon the same circumstances. So, according to Staunford, the person murdered ought to be named, in order to enable the party charged to vouch for his acquittal (d).
So, in burglary, the dwelling-house must be laid to be the dwelling-house of the real occupier (e).
So in an indictment for stealing in a dwelling-house to the amount of 40s. (f) the name of the person in whose house the larciny was committed must be averred (g).
And the rule seems to be the same in indictments for arson (h).
And though the averment burglariter domum cujusdam Ricardi fregit (i) has been held sufficient, the authority of this case has been much doubted, and indeed with great reason, for the two cases cited in support of it are directly
(b) 2 Haw. c. 25. s. 71. (c) Br. Ind. 21. 2 Roll. Ab. 80. 38 Ass. 11. 22.
(d) Staun. 181. b. 2. c. 18. (e) Leach, 104. 272.
12 Ann, c. 7.
(g) Leach, 270. 257.
(h) Leach, 270. Qu. et vid. Leach, 261. 11 Co. 29. 6 Bac. Ab. 652.
() Moor, 466.
against it (j) and the third proves no more than that an indictmem for stealing the goods cujusdam ignoti (k) is sufficient, which is no authority for the principal case, since there is a wide difference between an averment that the person is unknown, and an imperfect description of one who can be ascertained.
So, in general, the name of the owner of property stolen must be specified (/).
Next, with what certainty the name should be stated. It has been holden, that an indictment for an assault upon John, parish priest of D. in the county of C. is sufficient, for it is such a description of the person that it can apply to one only (m).
Next the description by the name of baptism only, without any further description, is insufficient; for though in a note of a case in Moor's Reports, it is said to have been adjudged that an indictment against one Cole, quod burglariter domum cujusdam Ricardi fregit, was good without the surname, yet, as has already been observed, this case does not appear to have been warranted by the authorities cited in support of it.
But there is no necessity for any addition to the name of the person robbed or murdered, it is sufficient if the indictment be true, that is, that J. S. was robbed or murdered, though there be many of the same name (n).
It is usual to describe the person injured to be in the peace of God and of the king, but these words are not necessary (o).
The person may be described by the name by which he is usually known (p).
(j) 18 Ass. 15, F, Ind. 27. (k) 9 E. 4. 1.
(2) 1 Hale, 512. 2 Haw.
c. 25. s. 71. Leach, 578.
(m) 2 Haw. c. 25. s. 72.
(n) 2 Hale, 182.
(0) 4 Co. 41. 2 Haw. c. 25.
(p) Leach, 1006. 2 Haw. c. 25. *. 72.