absolutely necessary to repeat it in the body of the caption, though it is usual and more correct to do so (). If the county named in the margent be not repeated in the body of the indictment, express reference must be made to it by the words in the county aforesaid (m). If the cap. tion state no place, or an uncertain one, it will be vicious(n): as if it set forth, that the indictment was taken at a ses sions holden at B. without shewing in what county B. is (o). So if, by act of parliament, the quarter sessions shall be holden at a particular place, and not elsewhere, the caption. must shew the sessions to have been holden at that place (p). But in Long's case (q), a coroner's inquest was stated to have been taken at Cossam, before W. S. the queen's coroner, within the liberty of her town of Cossam aforesaid; and this was holden to be sufficient, without expressly shewing that Cossam was within the liberty of the town of Cossam.

Conclusion of the caption.

It seems formerly to have been the custom to conclude in this form, "it is presented that A. B. &c.;" but the more correct form seems to be this, "It is presented in manner and form following, that is to say, Lancashire, to wit, the jurors for our lord the king, &c." and then to copy the whole of the indictment verbatim.

And where the county or division is mentioned in the margent of the indictment, and the place mentioned in the body of the indictment is referred to the county in the margent by the words in the county aforesaid, it seems to be necessary to introduce the indictment according to the

(2) 1 Will. Saund. 308. R.

v. Kilderley, n. 1.

(m) 2 Hale, 180. 3 P. Wms,

439.

supra, p. 60.

(n) Cro. J. 276.

(0) Cro. Eliz. 137. 606. 738.
(p) 1 Haw. c. 25. s. 128.
(q) 5 Co. 120.

latter method; for otherwise the indictment would ap pear to be insufficient, for referring the place mentioned in it to the county aforesaid, no county having been previously mentioned (r). But regularly the county mentioned in the margent is not an essential part of the record, unless it be made so by an express reference to it in the body of the caption, or of the indictment itself (s).

(r) See p. 60, and 1 Saund. (s) 2 Hale, 165, 166.

CHAP. XIV.

Defective Indictment.

1. Language of Indictments, p. 242.

II. Indictment, uncertain, double, and indefinite Allega

tions, p. 244.

IIJ. Repugnancy-Doctrine of Surplusage-Use of a Videlicet, p. 247.

IV. Variance, p. 355.

IN favour of life great strictness has at all times been required in point of indictments; and the truth is, that it is grown to be a blemish and inconvenience in the law and the administration thereof; more offenders escape by the over easy ear given to exceptions in indictments than by their own innocence; and many times, gross murders, burglaries, robberies, and other heinous and crying of fences, escape by these unseemly niceties, to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonour of God. And it were fit, that by some law this over-grown curiosity and nicety were reformed, which is now become the disease of the law, and will, I fear, grow mortal, without some timely remedy (a)."

Such were the observations of Lord Hale upon the niceties and refinements, which a mistaken and misplaced humanity had ingrafted upon this branch of the law.

But although this disease has not been cured by any general and amending statute, the courts have relaxed much from their former strictness in construing Indict

(a) 2 Hale, 193.

ments; and many exceptions, formerly holden fatal, would in later times have been disregarded (b).

The salutary maxim, "nimia subtilitas in jure reprobatur," has been applied to criminal as well as civil pro ceedings, and trifling exceptions have been frequently overruled (c).

Every indictment, must, indeed, contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy ; but, except in particular cases, where precise technical expressions are required to be used, there is no rule that any other words shall be used than such as are in ordinary use, or that, in indictments or other pleadings, a different sense is to be put upon them than that which they bear in ordinary acceptation. And if, where the words may be ambiguous, it is sufficiently marked by the context, or other means, in what sense they are to be used, no objection can be made on the ground of repugnancy which never exists but where a sense is annexed to words, which is either absolutely inconsistent therewith, or being apparently so, is not accompanied by any thing to explain or define them (d).

According to Lord Coke (e), certainty, to a certain intent in general, is required in a charge or accusation. This definition, it must be confessed, is not very intelligible; but, as explained by Lord C. J. De Grey (ƒ), "The charge must contain such a description of the crime, that the defendant may know what crime it is, which he is called upon to answer; that the jury may appear to be

(b) See 2 Ld. Ray. 1169. (c) 2 Haw. c. 25. s. 61. (d) Per Ld. Ellenborough, C. J. in giving judgment in

R

the case of R. v. Stevens and Agnew, 5 East, 259.

(e) 1 Ins. 303. 5 Co. 121. (f) Cowp. 682.

warranted in their conclusion of guilty or not guilty, upon the premises delivered to them; and that the court may see such a definite crime, that they may apply the punishment which the law prescribes."

It is essential to the formal validity of an indictment, 1. That it be couched in plain and intelligible language

and characters.

2dly. That it contain a direct, positive, single, and definite charge.

3dly. That such charge be described without inconsistency, or repugnancy, or material variance from the facts of the case.

In the first place, the charge must be conveyed in plain and distinct language and characters.

By the stat. 4 G. 2. c. 26, all writs, process, pleadings, rules, indictments, records, and all proceedings, in any courts of justice within England, shall be in the English tongue, and shall be written in such common hand as acts of parliament are usually ingrossed in; the words and lines to be written at least as close as the said acts usually are, and not abbreviated.

And by the stat. 6 G. 2. c. 14. all pleadings, rules, orders, indictments, and informations, &c. may be written or printed in a common hand, and with the like manner of expressing numbers by figures as have been commonly used in the said courts, and with such abbreviations as are used in the English language.

Whilst such proceedings were in Latin, the courts seem to have been very jealous of the introduction of English words into indictments; and it was holden, that if the description could properly be made by means of a Latin word or phrase, the latter could not be supplied by English words under an Anglicé (g); and therefore an in(g) 2 Hale, 169.