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scriptive of the offence, that they cannot be dispensed with (9).
And this rule applies equally to offences created by a statute and to common law offences, for which the offenders are by a statute either subjected to a new pu nishment or deprived of a common law benefit; in the former case, if such a material word be omitted, the of fender cannot be punished at all; in the latter, he is liable to the common law penalty only.
For example, in an indictment for perjury under the stat. 5 Eliz. c. 9. the word wilfully is essential, and must be inserted; because the word wilful in the statute is a material description; but in an indictment at common law, and not on the statute, the words, falsely, maliciously, wickedly, and corruptly, imply that the offence was committed wilfully, so that an indictment at coinmon law would be good without such an allegation (r).
An indictment (s) under the Black Act stated, that the defendant with a certain pistol, &c. did unlawfully, maliciously, and feloniously shoot at one A. B.
The words of the statute are, "If any person or persons shall wilfully and maliciously shoot, &c." The question for the judges was, whether the indictment was not defective for having omitted the word wilfully.
According to the report of this case, the point was much debated; some of the judges thought, that the word wilful was implied in the word malicious; but a great majority were clearly of opinion, that as the legis
(9) Fost. 424. Cro. J. 607. Stowe's case.
(r) R. v. Cox, Leach, 82. See Hetl. 12. Cro. Eliz. 147. 201. 2 Hale, 187. Show. 190. 3 Ins. 167.
(s) R. v. Davis, Leach, 556. See also Emmot v. Fulwood, 1 And. 49. Hinton v. Roffey. 3 Mod. 35. Foster's case, 11 Co. 58. R. v. Remnant, 5 T. R. 170. R. v. Jukes, 8 T. R. 536.
lature had, by the special penning of the act, used both the words wilfully and malicious, they must be understood as a description of the offence; and that the omission in the indictment before them was fatal to its validity (t).
So necessary has it been deemed to pursue precisely the language of the statute, that the indictments against the regicides alledged the compassing and imagining of the king's death as the treason, in the terms of the statute, and merely alledged the actual destruction of the king as the overt act (u).
In some instances, however, the use of the identical words used by the legislature has been dispensed with, and their place holden to be supplied by expressions deemed to be equivalent. Thus it has been holden, that the words "wilful murder" might be supplied by laying the killing to be of malice aforethought. So in Lodowick v. Grevil's case(x) it was holden, that the words of the indictment, "excite, move, and procure," were, equivalent to the words of the statute (y), "counsel, hire, or command."
And in a proceeding founded upon a remedial statute, it has been holden to be unnecessary to follow the words of the statute so precisely as in an indictment (z).
In Mr. Justice Foster's report of the case of the King v. M'Daniel and others, he says, in the case cited (a), the
(t) See also 1 Show. 190. 11 Co. 58. 2 Hale, 192. 2 Haw. c. 25. s. 110. Cro. Eliz. 147. 201. And. 49. Dyer, 363. 2 Burr. 679. 5 T. R. 170. 2 Leon. 211. Hale, 517. 525. 535. 2 Hale, 336. Hard. 21. "8 T. R. 536.
(u) Kel. 8. 1 Hale, 107. 119. 167. Fost. 193. 196. 3 Ins. 12, (x) And. 195.
(y) 4 & 5 Ph. & M. c. 4. (z) 2 Bl. R. 842. 3 Wils. 318. 3 East. 244.
(a) 1 And. 195.
indictment was holden to be sufficient, though the words of the statute of Ph. & M. were not pursued: the words, excitavit, movit, et procuravit, being deemed tantamount to the words of the statute, "counsel, hire, or command (b)."
"I take this to be good law, though I confess it is the only precedent I have met with where the words of the statute have been totally dropped; and I the rather incline to this opinion, because I observe that the legislature, in statutes made from time to time concerning accessories before the fact, hath not confined itself to any certain mode of expression, but hath rather chosen to make use of a variety of words, all terminating in the same general idea."
But if the words of the statute may be abandoned in describing an accessory before the fact, and can be supplied by equivalent words, there seems to be no sufficient reason, why the doctrine of substitution should not extend to other cases.
The reasoning used by Mr. Justice Foster seems carried a great length, and to support it, two steps are necessary: first, the words of a whole class of statutes are construed to be descriptive of an accessory before the fact; and, secondly, it must be contended, that such an accessory may be described in the language of the common law, without reference to the terms of the statute. It appears, indeed, that the part of the report, from which the above extract is taken, was not delivered in court; so that the dictum which has been cited, does not bear the same stamp of authority with a position publicly and judicially advanced by so able a judge (c).
Great difficulty exists in drawing the precise line, which
(b) 4 & 5 Ph. & M. c. 4.
(e) Vide 6 East, 417;
shall ascertain at once the latitude which ought to be permitted in the description of offences for the purposes of justice, and that wholesome caution and strictness, which ought to be observed for the avoiding of confu sion, and the exhibiting of the defendant's guilt with certainty upon the face of the record; in order that substantial justice may not be frittered into empty form on the one hand, and that the life and liberty of the subject may not be placed in jeopardy by ignorance or carelessness on the other. But, at all events, where an indictment is founded upon a statute, reason and convenience seem to require, that the terms and expressions used by the legislature, as descriptive of the offence, should be adopted in framing that indictment; the insertion of others does not seem justifiable on any principle; for a substituted word or phrase can never so directly and pointedly support the charge as the one used by the legis lature.
III. Of the averment that the offence was committed against the form of the statute.
'The necessity for this averment may be considered, 1st. In cases affected by one statute only.
2ndly. In those affected by more than one statute.
If an offence did not exist at common law, but is entirely created by a statute, it seems, from all the authorities, to be necessary to aver the offence to have been committed contra formam statuti (d), and that, in default of such an averment, no judgment can be given against the defendant(e). And the rule is the same where an offence at
(d) 2 Haw. c. 25. s. 117. 2 Hale, 192. 1 Saund. 135. n. 3. Doug. 428. 5 Mod.
(e) 2 Haw. c. 25. s. 116. 2 Hale, 192. 251. 1 Saund. 135. n. 3. Doug. 428.
common law is made an offence of an higher nature, by a statute, as where a misdemeanor is made a felony, or a felony treason (ƒ).
Where the offence existed at common law, but the offender is, under particular circumstances, deprined by a statute of some benefit to which he was entitled at common law, the averment is unnecessary, for the statute does not inflict a new punishment, neither does it alter the nature of the offence (g). But the averment in such case would not be improper; for though the statute does not inflict a new penalty, it takes away an old privilege (h).
So under the statute 21 J. 1. c. 27. it was holden to be unnecessary to conclude against the form of the statute, for the act created no new crime, but only introduced a new rule of evidence (i).
Where the offence existed at common law, and an additional punishment is inflicted by the statute, the offender, if this averment be omitted, is liable to the common law punishment, but not to the new penalty under the statute (k).
Where the offence existed at common law as declared by a statute, such as the stat. 25 E. 3. de proditionibus, the averment may be either used or omitted (1).
Where an offence, as described in the indictment, is pu