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Any repugnancy or inconsistency in the description of the person injured will vitiate the indictment, as where the defendant is charged with stealing the goods prædicti J. S. no such person having been previously mentioned (q). For though in civil actions the word prædictus has been rejected as surplusage (r), yet this is said to have been done by virtue of the statutes of jeofails, which, it is well known, do not extend to criminal cases.
And it may be laid down as an universal rule, that any variance from the name laid in the indictment will be fatal upon the trial.
The special exceptions to the rule, as already observed, rest upon necessity, and consist of cases where a particular description would be impracticable or highly inconve nient.
Thus it has been holden to be sufficient to aver, that the defendant murdered quendam ignotum (s), where a stranger, unknown to the country, is found slain or where the dead body is so mutilated, that the remains cannot be sworn to be those of a person formerly known by name.
So it is said, that if a stranger, unknown to the country, be robbed, and will not come in to prosecute, or discover his name, an indictment against the offender for having robbed quendam ignotum (t) is good. So (u) an in
(g) 2 Haw. c. 25. s. 72. (r) 3 Lev. 436. Cro. Eliz. 709. Qu. and see tit. Amend
(s) 1 E. 3. 20. 1 Ass. 7. F. Coron. 159. 23 Ass. 94. F. Ind. 10. 2 Hale, 181. Plowden, 85. 129. 9 H. 6. 45. b. Dyer, 99.
(1) F. Ind. 12. 17. 2 Hale, 181. Dyer, 99. Keil. 25. Plowden, 85. 129.
(u) So if a person steal the goods of an abbey during a vacancy, he may be indicted for stealing bona ecclesiæ. 7 E. 4. 14. F. Ind. 15.
dictment may be maintained for assaulting quendam ignotum (x), or against a highwayman, or other person notoriously suspected, who has been apprehended with a number of valuables in his possession concerning which he can give no satisfactory account (y).
And in such case it has been laid down, that the defendant may be charged with stealing the property of persons unknown, or with stealing them generally (z). But the latter branch of this position seems very dubious; for the indictment in that case would neither allege whose the property was according to the general rule, nor account for the omission, by saying that the proprietors were unknown.
For it seems perfectly clear, that the omission of the name of the party murdered or robbed is warranted by necessity only; and that, whenever the name can be ascertained, it ought to be specified (a). Therefore, in an appeal of death, the name must always be alleged; for since such a proceeding must be instituted by the nearest relation, the name must of necessity be known (b). And it was anciently holden, that whenever one was indicted for the death of another, the inquest ought to tell his name (e),a position certainly much too general for the purposes of justice, since it would ensure the escape of a murderer, whenever the name of the party could not be ascertained.
But, as already observed, it has long been perfectly
settled, that an indictment for the murder or robbery of a person unknown is intrinsically sufficient, whether exception be taken by demurrer, or upon motion in arrest of judgment (d). And the same reason extends to the case of a receiver of stolen goods, who may be indicted without naming the principal offender (e).
The proper limitation to this class of exceptions must, therefore, be applied by the court in its discretion upon the trial; for if it then appear, that the name was in fact known to the jurors, it must also appear that the statement was not warranted by the exigency of the case, and the petit jury cannot consistently find the defendant guilty of robbing a person unknown, when it plainly appears that he was known (ƒ).
And the opinion (g) of Serjt. Hawkins seems well warranted, that the want of such necessity (h) was probably the reason, why indictments, not shewing to whom the wrong was done, were disallowed in the old books.
It may be observed here, that a description of this kind does not deprive the defendant of his plea of autrefois acquit or autrefois convict; for if he be again indicted for the same supposed offence, he may plead his former acquittal, and aver the person to be the same (¿).
(d) Summ. 107. Dyer, 285. 99.
(e) Vide supra, R. v. Thomas, p. 158.
(f) It was so ruled in R. Walker, by Le Blanc, J. 3 Camp. 264. the indictment was for receiving goods stolen by a person, to the person unknown, and the principal felon was called as a witness. See Sum. 95. Plow. 85. 6. 45. Dy. 99.
Keil. 25. 9 H.
(g) 2 Haw. c. 25. s. 71. 30 Ass. 37. 18 Ass. 15. 2 Leon. 39.
(h) Note, Ld. Dyer held, that an indictment, quod felonicè cepit bona cujusdam ignoti, was sufficient; because the goods may be carried into another county, and so not known who had the property. Dyer, 99.
(i) Plowden, 85 b. Dyer, 97.285. 2 Hale, 181.
And as the name of the principal individual, to whom the injury has been done, may in cases of necessity be omitted, so, for the same reason, may the names of others by means of whom the offence has been committed.
The defendant (k) was indicted for selling divers quantities of beer to divers faithful subjects, to the jurors unknown, in unlawful measures. Upon demurrer the defendant objected, that the indictment did not state to whom the beer was sold; but the court held, that the indictment was sufficient, for the informer might not know the name of the person to whom it was sold; and that it was an offence, let it be sold to whom it would (7).
In the case of the regicides it was holden, that the fact of beheading the king was well laid to have been done by some person unknown, with a vizor on his face (m).
In an indictment for harbouring thieves, it has been holden to be unnecessary to specify their names.
So an indictment stating, that the defendant cum viginti septem aliis (n), engrossed, &c. has been holden to be sufficient.
II. Next as to the description of the place, &c. connected with the offence.
In indictments for burglary it must be averred, that the defendant broke and entered the dwellinghouse of another; and it is not sufficient to charge him with breaking and entering the house simply (0).
The house must be laid to be the dwelling-house of
(k) R. v. Gibbs, Str. 497. Str. 186. contra.
(2) Note, judgment was given fo the defendant on another exception. In R. v. Roberts, 4 Mod. 100. 3 Salk. 198. the
same objection was taken, but
(m) Kel. 10.
the real occupier (p), and a variance in evidence would be fatal (q). And the same rule applies to indictments for arson (r). And in an indictment for stealing in a dwelling-house to the amount of 40s. in order to oust the defendant of his clergy, his surname as well as the christian name of the person, in whose dwelling-house the offence was committed, should be averred (s). Also in an indictment under the stat. 3 W. & M. c. 9. for stealing property from lodgings, the name of the person, by whom the goods and lodgings were let, must be specified (t).
If several inhabit several rooms of a house, part of which house is also occupied by the owner, the house must be averred to be the dwelling-house of the owner, though the offence be committed in the several tenement of another occupier; but if the owner does not occupy any part. each separate tenement may be laid to be the dwelling-house of the tenant (u).
In an indictment for burglary, laid with an intent to steal, a variance in evidence from the ownership laid in the indictment, will be fatal.
Jenks was indicted for burglariously breaking and entering the dwelling-house of Joseph Davis, with intent
(p) Leach, 104. 272. In Cole's case, Moor, 466. the shop was stated to be the shop of Richard, without any surname; yet the indictment seems to have been deemed sufficient. Qu. et vide Leach, 286.
(q R. v. White, Leach, 286.. R. v. Woodward, ib.'
(r) R. v. Breeme, Leach, 261. R. v. Spalding, Leach, Spalding, Leach, 258. 11 Co. 29. R. v. Holmes, Cro. Car. 376. Rickman's
case, E. P. C. 1034. 1 Haw. c. 36. s. 8. White's case, Leach, 286. Woodward's case. ib. M'Cabes' case, May Sess. O. B. 1785.
(s) Leach, 286. Thomson and Macdamil's case. Leach, 379. (t) R. v. Pope, Leach, 377.
(u) R. v. Rogers, Leach, 104. 272. Carrol's case. Lee v.
Gansel, Cowp. Rep. 2. East,
P. C. 499.