"for

had his clergy, for the words of the (s) statute are robbery in or near the highway, he shall be ousted of his clergy," and therefore the indictment and conviction must be of a robbery in vel propè altam viam regiam (t).

So an indictment in a præmunire, for aiding one being a principal maintainer of the see of Rome against the form of the statute, the words being omitted, "to the intent to set forth the authority, &c." which were part of the qualification of the offence contained in the statute, was holden to be insufficient and not aided by the conclusion (u).

An indictment under the stat. 7 G. 2. c. 21. stated, that the defendant in and upon one A. Gillespie, unlawfully, maliciously, and feloniously, did make an assault; and him the said A. G. then and there unlawfully and maliciously did menace, by then and there threatening and menacing to blow the said A. G.'s brains out, with a fe lonious intent, the monies of the said A. G. from the person and against the will of him the said A. G. feloniously to steal, &c.

The statute enacts, that if any person shall, with any offensive weapon or instrument, unlawfully and maliciously assault, or shall by menaces, or in any forcible or violent manner, demand any money, goods, or chattels, from any person or persons, with a felonious intent to rob or commit robbery, &c. then, &c.

The judges were of opinion, that the indictment was insufficient in not having stated, that the assault was made with an offensive weapon, or that any demand was made; and that, therefore, no judgment could be given on it, for that it is necessary in point of law, that an indictment on any particular act of parliament should

(s) 23 H. 8. c. 1. (t) 1 Hale, 535.

(u) Dyer, 363. 2 Hale, 193.

strictly follow the words of the act, and that the court cannot supply from any other circumstances a sufficient description of the offence (x).

And the same rule applies with equal or greater force to the pleading in convictions; as where a conviction charged the defendant with killing deer in a certain place where they have been usually kept, without saying inclosed place (y); or with unlawfully killing fish, omitting to add," without the consent of the owner of the water" (z); or with insuring a ticket in the lottery, without saying "in the state lottery" (a); or with having a gun in his house, where the words of the statute are, his or her house” (b).

use to keep in

By 3 & 4 W. & M. c. 1. if a man be indicted of stealing any goods or chattels, he shall be excluded from the benefit of clergy, if it appear upon evidence or examination before the justices, that the said goods or chattels were taken by robbery or burglary, or in any other manner, in any other county, whereof if such person had been convicted by a jury of the said other county, he or they are excluded by virtue of this or any other act from having the benefit of his or their clergy (c).

It is not necessary (d) under this statute to make any entry upon the record, that it appears by such evidence or examination that the felony was originally commenced in a different county, and was of such a nature that the offender could not have his clergy; but it is usual to write

(x) R. v. Jackson and Randall, Leach, 303. See also 2

Hale, 189, 190.

(y) Ld. Ray. 791.

(z) 2 Burr. 679.

(a) 1 T. R. 22. R. v. Tre

lawney.

(b) 1 Show. 48.

(c) See also 25 H. 8. c. 3. and 5 & 6 Ed. 6. c. 10.

(d) And 114. 1 Hale, 518. 2 Haw. c. 33. s. 82. E. P. C. 776.

in the margent of the indictment, that it is for a robbery, &c. in another county (e).

But it has been holden, that the offence laid in the indictment and proved, must be one in which the offender stands in need of clergy; for otherwise, having no need to demand clergy, he cannot be hurt by being excluded from it.

So that if he be indicted of petit larciny, he is not ousted of clergy, though the goods be proved to have been burglariously stolen by the offender in the foreign county (f).

It has already been considered, how far it is necessary to bring the defendant within any mere negative description contained in a statute (g).

With respect to provisos and exceptions, the rule is clearly laid down by Lord Hale, "Where an offence is made felony, or otherwise punishable by act of parliament, though the indictment must take in the circumstances which, in the body of the act, make up the offence, yet if, by proviso in the same statute, or by any subsequent statute, some cases or circumstances are excepted out of the act, the indictment need not mention them, and qualify the offence so as to exempt it out of the proviso; but the party shall have the benefit of the proviso by pleading not guilty, and in the same manner shall have advantage of the subsequent statute to excuse him by virtue of that statute (h). And this has been adjudged even in cases where the proviso is noticed in the purview of the sta

(e) Semble, it should be made to appear by way of counterplea.

(f) Moor, 550. 1 Hale, 536. 2 Hale, 349.

(g) Vide supra, 159.

(h) 2 Hale, 170. Popham, .93, 94. 1 Jones, 157. 1 Lev. 26.

tute (i); in a convictien (k) it has been holden necessary to notice the provisos of the statute; yet even there if the benefit be given by a proviso subsequent to the enacting clause, it is unnecessary to notice it (l).

It has been said, that if the statute, whereon an indictment is founded, be particularly recited, the general conclusion contra formam statuti, after the allegation of the fact, will supply an omission in it of a circumstance mentioned in the statute, which omission would otherwise have been fatal; for that since the statute is particularly recited, and the defendant is charged with having committed the offence against the form of it, and it is impossible that he could have so done, if any circumstance expressly required by the statute had been wanting, the of fence may be said to be as fully set forth in the very words of the statute, as if such words had been repeated in the allegation of the offence (m).

But this reasoning appears to be defective; for if the omission of one material circumstance could be supplied by the recital, why might not the omission of a second, and where could the line be drawn? the principle once admitted, would lead to the conclusion, that an indictment would be sufficient which barely recited the statute, and then averred that the defendant at such a time and place transgressed it.

It would also be left to the jury to say, whether the fact omitted on the record, but proved in evidence was a fact the doing of which could be an ingredient in the offence, which is a pure matter of law and ought to appear judicially to the court. And besides this, there could be

(2) Popham, 93, 94. 2 Haw.

c. 25. s. 113.

(k) 2 Haw. c. 25. s. 113. Doug. 531.

(7) 2 Str. 1101.

(m) Savil, 33. 2 Roll. 227. 2 Haw. c. 25. s. 114. Roll. 81.

contra.

no averment of time and place annexed to the circumstance omitted. Now, if the circumstance had been averred, it must have been averred with time and place; and if the omission of time and place to the averment would have vitiated the indictment, it can scacely be contended, that the omission of the averment altogether would improve the indictment.

Where the prohibiting statute is recent, it is usual to allege expressly, that the offence was committed after the making of the statute; but where the statute is not recent, this averment is unnecessary (n). Where a particular time is limited for the prosecution, it should appear, on the face of the indictment or conviction, that the prosecution was commenced within the time, but a special averment is not necessary (0).

Where several circumstances are mentioned disjunctively in a statute, any one of which is sufficient to oust the offender of his clergy, it is sufficient to charge the defendant disjunctively in the indictment. Thus, it was holden to be sufficient, in an indictment for a highway robbery, to aver in the words of the statute, that it was committed in or near the highway; because, as has been said, the words are only descriptive of the manner. (p).

2dly. As to the terms and phrases used in the statute. The general rule is, that the defendant must be brought within all the material words of the statute; for many of these have been holden to be so peculiarly de

(n) 1 Saund.
(0) 2 East, 333.

1 Burr. 366.

(p) 1 Hale, 535. It is not necessary now to allege, that the robbery was committed in or near an highway, since

clergy is ousted generally; and if the averment be made, a variance from it will not be fatal. Wardle's case, East, E. P. C. 785. Pye's case, ib.