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reign, is consummated in the present, or is confined wholly
to the present.
Where the offence is confined wholly to a preceding reign, it must be laid against the peace of the late king (1), but if it conclude also against the peace of the present king, the latter branch of the conclusion may be rejected as surplusage (m).
If a man be indicted for erecting a weir in one reign, and continuing it in a second, and conclude that it was erected and continued against the peace of the then king, without adding against the peace of the late king, it will be defective, for the gist of the indictment is the erecting, which wrong was done in the reign of the former king (n), and the offence should be laid against the peace of both.
But, thirdly, if in that case the erection had been made mere inducement, and the continuance of the nuisance had formed the gist of the indictment, the conclusion, contra pacem regis nunc, would have been good (o).
If an indictment be found against a man for an offence, laid contra pacem domini regis nunc, he may be arraigned upon that indictment after the demise of the king; for the indictment is not discontinued by the demise of the king, though in some instances process is (p).
With respect to the averment, that the offence was committed in contemptum regis, the only authority for it appears to be a solitary dictum in the year book, 4 H. 6. pl. 7. which seems to admit that the averment is necessary in an indictment on a statute.
The averment contra coronam et dignitatem is used in
many precedents (q), but there does not appear to be any decision in which they have been deemed essential to an indictment, and in Holbrook's case it was adjudged that an indictment for a riot was good without them (r).
Although every count of an indictment professes to contain a description of a distinct offence, and therefore it is proper to add to each a separate conclusion; yet since, in many precedents, each of which comprises a number of offences, there is no more than a general conclusion, such a conclusion appears to be sufficient (s).
In a conviction for deer-stealing, several offences were laid to have been committed on different days, and it was holden, that the general averment illicité occidit applied to all.
(9) Most of the precedents of indictments in Coke's Ent. and Tremaine's Ent. conclude so. (r) 2 Roll. Ab. 82. 2 Hale, 188.
(s) R. v. Speed, Ld. Ray. 583. and see R. v. Broughton, Trem. 111. Ib. 227. 248. 45.
Indictments founded upon Statutes.
I. Recital of the Statute and Effect af a Variance, p. 200.
II. Description of the Offence:-1st. in Reference to the
Circumstances mentioned in the Purview, p. 206;
and 2dly. in Reference to the Language of the Statute, p. 211.
III. Conclusion against the Form of the Statute, p. 215.
IN describing the averments essential to indictments, according to the division which was proposed, no distinction has been made between those which are framed upon the common law definition of an offence, and those founded upon the purview of a prohibitory statute. Neither, with propriety, can any distinction be made as to the degree of particularity and precision essential to the description of the two classes of offences; for a statute, in general, merely dèfines the offence, without prescribing the technical language in which a charge of that offence is to be expressed on the face of the indictment; and in principle, the same degree of certainty is requisite in the description of both statutable and common law offences, for, though the definitions are of different origin, whatever particularity is useful and necessary in the one case, must be equally so in the other.
Many instances have already been cited which prove that a description, closely following the words of the sta
tute, is not in itself sufficiently minute and specific. As where the indictment is founded on the stat. 33 H. 8. against obtaining money by means of false tokens, or upon the stat. 30 G. 2. c. 24. against obtaining money or goods by false pretences.
In these and numerous other instances, it has been holden to be necessary to specify the false tokens, the false pretences, and other means by which the offence has been committed, upon the face of the record (a).
It may, therefore, be assumed that there is no difference between common law and statutable offences, as far as regards the general rules, according to which the expanded description of the offence should be expressed upon the record, except, indeed, in those instances (and the exception confirms the observation) where the legislature has peremptorily directed that some general form of words shall be used.
In convictions indeed, Lord Holt held it to be sufficient to pursue the words of the statutes on which they are founded (b); but the contrary has frequently been decided since (c).
But though the same general rules apply to the description of both statutory and common law offences, there are some observations and technical rules peculiar to the former, which it will be proper to consider.
Where the statute is of a public nature, the court is bound (d) to take notice of it; and, therefore, such a statute ought never to be specially pleaded, since, by plead
(a) See chap. 7.
(b) Ld. Ray. 583.
(c) See R. v. Pemberton, Burr. 679.1037. 2 Haw. c. 25. s. 111. Mallinson's case, 2 Burr. 679. Boscawen on Con
victions. Chapman's case, ib.
42. 2 East, 340.
(d) Dyer, 155. 346. 5 H. 7. 17. 6 Mod. 140. Cro. Eliz. 187.236.
ing it, the danger of a material and fatal variance (e) is incurred.
But a private statute, if indicted upon, must be pleaded, and a mis-recital, if shewn to the court in a proper manner, will be fatal (f); and, therefore, it becomes necessary to consider with what degree of accuracy it is necessary to set forth a private statute. This kind of certainty relates to the time and place of making the statute, its title, or to the purview of the statute on which the indictment is founded.
In the first place, it has been adjudged that the total omission of the day on which the parliament was holden, is no fault in the recital of a statute (g); and, therefore, it is better to omit the day, for the purpose of avoiding a mis-recital, which would be fatal.
Thus, if a parliament was first holden on the 28th day of April, in the 32d year of Henry the eighth, and afterwards holden on the 12th day of April in the next year, and a statute, then made, be recited as made at a parliament holden on the 28th of April, in the $2d year, the variance would be fatal (h).
So if parliament be summoned for the 23d, and afterwards be prorogued to the 25th, it would be a mis-recital to describe it as of the 23d (i).
So, in some cases, an averment that a parliament was
(e) Bac. Ab. Ind. H. 2 Haw. c. 25. s. 100. Plow. 79. 83. 84. Cro. Eliz. 236. 245. 4 Co. 48. 1 Roll. 50. Cro. Car. 135. 2 Hale, 172. 1 Jones, 194.
(f) 4 Co. 3.
(h) Plow. 79. 83. 84. Cro. Car. 136. 232. 3 Keb. 468. 2 Jones, 50. Hob. 310. Cro. J. 139. Cro. Eliz. 245. 2 Buls. 53. 1 T. R. 224. 2 T. R. 654. Cowp. 674.
(i) Bac. Ab. tit. Ind. H. 2. 2 Haw. c. 25. s. 104.