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A. and B. his son, being farmers, jointly purchased a stock of sheep; B. died, leaving children, A. continued to manage the farm,-the stock was stolen, and in the indictment was laid to be the property of A. and his grand-children; A. swore that he considered himself as agent for the grand-children in respect of one moiety. The judges held, that though in such case there was no jus accrescendi, yet, that since A. swore that he held one moiety for the grand-children, no person could controvert it, and he might make distribution amongst them; and some of the judges held, that the property might have been laid in the grand-father alone, as agent to the grandchildren (h).

It is provided by the stat. 26 G. 2. c. 19. that a person stealing part of a wreck, may be indicted and convicted, though the owner cannot be ascertained. It seems, however, upon the authority of the above cases, that an indictment at common law, stating such goods to be the property of some person, to the jurors, unknown, would have been sufficient.

It is sufficient to state the owner by the reputed name, though it be not the real name.

Thus, where the indictment charged the prisoner with having stolen the property of Victory Baroness Turkeim, the prosecutrix stated that her name was Selina Victoire, that Baroness Turkeim was her real title, and that she was generally known by the appellation of Ba

(h) John Scott's case, coram Chambre, Northd. ass. 1801. East. P. C. 654. Qu. whether it would not have been more correct to have laid the property in the grand-father, who had the legal custody of the

whole flock; though, in point of law, the property in one undivided moiety had vested in the son's representative. See Litt. s. 321. Fox v. Hanbury, Cowp. 445. 2 Bl. Comm. 399. Co. Litt. 182.

roness Turkeim, and the judges held the indictment to be sufficient (i).

In Mary Graham's case (k), the property was alleged to be of the goods and chattels of James Hamilton, esq. commonly called Earl of Clanbrassil, in the kingdom of Ireland. The owner was the Earl of Clanbrassil; and the judges were of opinion, that the description was sufficient, since the dignitaries of other nations are in England merely esquires, and that the words commonly called, &c. might be rejected as surplusage; but that the more correct description would have been James Hamilton, esq. Earl of Clanbrassil, in the kingdom of Ireland.

It is usual to aver the property to be of the goods and chattels of a particular person; and in Long's case (1), the indictment alleging that the defendant felonice cepit quandam peciam panni cujusdam J. S. was quashed, for not saying de bonis et catallis cujusdam J. S.

A nice distinction is made by the earlier writers, as to the allegation of property, between things animate and inanimate; an animated being, they say, ought to be described, as the ox, sheep, or horse of the person injured, simply; but the words bona et catalla ought to be used where the thing taken is inanimate (m). A distinction of this kind is truly what Lord Hale calls " but clerkship."

There are several precedents (n) which allege a living animal to be de bonis et catallis J. S.; and in Rastal's entries there is an appeal of sheep-stealing, which lays the property in the same way (o).

In general, an inaccuracy, or repugnancy in the allegation, or variance in the proof of ownership, will vitiate

(i) Sull's case, Leach, 1005.

(k) Leach, 619.

(7) Cro. Eliz. 490.

(m) Lamb. b. 4. c. 5. 496.

Dalt. c. 131.

(n) Cromp. 247. 248.

(0) Rast. Ent. 55.

the indictment: thus, as before observed, if it be alleged that the defendant stole the goods prædicti J. S. no such person having been previously named, the indictment will be vicious (p). So if a burglary be laid with intent to steal the goods of J. Wakelin, the indictment will not be supported by proof of a burglary, &c. with intent to steal the goods of J. Davis (9).

If the person, alleged to be the owner, be a feme covert, or appear to have no interest in the possession of the goods, the defendant will be acquitted (r); but he may be presently indicted de novo, for stealing the goods of the husband or other owner (s).

And, with respect to ownership, it may be observed generally, that the name of the owner of the property, in relation to which the offence is committed, should be truly stated. Thus, in an indictment for cutting trees, &c. under the stat. 6 G. 3. c. 36. it is necessary to specify the owner's name (t). And, as has already been seen, the same particularity is necessary in indictments for burglary, stealing in a dwelling-house, arson, and in all larcinies.

(p) 2 Haw. c. 25. s. 92. tam. qu.

(q) Jenks's case, East. P. C. 514. Leach, 896. See p. 177.

(r) 1 Hale, 513.

(s) R. v. Emes, 1 Hale, 513. (t) R. v. Patrick and Pepper, Leach, 287.

CHAP. XI.

Conclusion of the Indictment.

AFTER describing the substance of the offence, it is necessary in cases of homicide, and usual in those of perjury, for the jurors to draw the legal conclusion from the premises, and to aver it formally upon the indictment. In case of murder, the conclusion is generally drawn in these words, "and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said A. B. him, the said C. D. in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder," &c. In many of the older precedents it is specially alleged, that the defendant murdered the deceased, at a specified time and place; but the general form is sufficient, and is preferable, for if the day or place were to be mistaken, it seems the defect would be fatal; as, if the stroke be laid at A. and the death at B. and the indictment allege the murder to have been committed at A. (a).

When the indictment is founded upon some act or omission, which is punishable as a nuisance to the public in general, it is usually averred to have been done or omitted, ad commune nocumentum of the king's subjects; but these words are not essential, for they neither describe the crime itself, nor the facts which constitute it; and if the facts charged, must, from their very nature, have been a nuisance to society, it is unnecessary to aver that which the court cannot but infer.

And, therefore, though indictments against common scolds, and common barretors, usually conclude ad com

(a) Heydon's case, 4 Co. 44.

mune nocumentum, the conclusion has been deemed unnecessary (b).

At common law, the indictment in general concludes with the words, "against the peace of our said lord the king, his crown, and dignity." And, wherever the offence includes a breach of the peace, the indictment should conclude, contra pacem, for the necessity of these words is not taken away by the stat. 37 H. 8. c. 8. (c); but, where the offence consists in a bare omission, as the not performing the order of a justice of the peace (d), or rests in tendency, or partakes of the nature of a civil proceeding, as in case of an information for an intrusion, the averment appears to be unnecessary (e). But if these words be alleged in an indictment for a bare non-feasance, they may be rejected as surplusage (ƒ).

According to Lord Hale, "every offence against a statute, should be laid contra pacem," (g) and though there are precedents without this conclusion, they do not appear to be warranted by any resolution (h), except where the offence consists in a bare non-performance (i).

Where the averment is necessary, it must be alleged to have been committed, "contra pacem domini regis," and contra pacem alone is insufficient (k).

In different reigns.

The offence is confined wholly to a preceding reign, or having been committed in a preceding reign is continued into the present, or having been begun in a preceding

C. 25. s. 59. But

(b) 2 Haw. see Str. 1246. contra.

(c) 2 Hale, 188. (d) Vent. 108. 111. (e) 2 Haw. c. 25. s. 92. Rast. 409. 1 Keb. 360. 364 to 372. 390. Rast. 412. Salk. 380.

P

(f) Salk. 380.

(g) 2 Hale, 188. 2 Haw. c. 25. s. 92.

(h) 2 Haw. c. 25. s. 92.
(2) 1 Vent. 108. 111.
(k) 2 Hale, 188.

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