dictment was quashed, because the English word witchcraft was substituted for the Latin word incantatio (h).

But even then, when more slender exceptions were allowed to prevail than in later times, it appears that neither inelegant, nor even ungrammatical or false Latin, would vitiate an indictment if it did not render it unintelligible (i).

So that where duo justiciariis was inserted for duobus justiciariis (k), the indictment was still holden to be sufficient; and so was an indictment, which alleged that the defendant super caput suum proprium did forge, meaning that he did it of his own head (7).

But the misspelling of a word of art was generally considered to be fatal, as burgariter for burglariter, feloniter for felonice, or murdredavit for murdravit; and in numerous other instances, indictments were quashed upon very trivial exceptions to their language, as where destrictionem (m) was used for destructionem; in others, the fault was holden to be cured by an explanation under an Anglice, as pellices, Anglice (n) skins; ollis ariis (0), Anglice brass pots. But the consideration of this class of cases is rendered useless by the statutes above cited. With respect to faulty or ungrammatical English, the courts have relaxed from that strictness, which was formerly so prejudicial to the administration of justice. If the objectionable word or sentence be wholly superfluous, it may be entirely rejected (p), according to the

(h) Dr. Lamb's case, 2 Hale.

169.

(i) 2 Hale, 169.

(k) Cro. Eliz. 108. 2 Hale, 169.

(1) 2 Lev. 221. 2 Haw. c. 25.

s. 87.

(m) Parker's case, Hutt, 56. (n) 1 Sid. 318.

(0) Cro. J. 129. 2 Haw. c. 25. s. 88.

(p) 2 Haw. c. 25. s. 87.

maxim, utile per inutile non vitiatur; and if one or more material words be misspelt, still the indictment will be good; unless by the alteration the word be changed into another of a different signification (q). But the misspelling of a name in setting out a record is fatal, although the word be idem sonaus (r).

It seems that before the statutes 4 G. 2. c. 26. and 6 G. 2. c. 14. it was not allowable to express the year by means of common figures (s); but in setting forth the tenor of any writing in an indictment for forgery or libel, it is still necessary to copy the figures (1).

The charge must be direct and positive.

It has frequently been holden, that it is insufficient to allege a material part of the charge by way of recital, prefacing it with the words, "for that whereas, &c."; therefore, where an indictment against the defendant, for having disobeyed an order of two magistrates, averred, that whereas the justices made an order, &c. the indictment was holden to be insufficient, for not directly averring that such an order was made, for without the order there could be no offence (u). But where the matter laid under a quòd cum is merely introductory, the allegation will be sufficiently certain: thus an indictment for forgery, which alleged quòd cum testatum existit per quandam indenturam, that J. S. demised, &c. and then averred, that the defendant falsely forged an assignment in writing

of that lease, setting out the tenor was holden to be sufficiently certain (x).

In Long's case (y) it was holden, that the averment quòd exoneravit tormentum dans plagam, without saying purcussit, was insufficient; and in Vaux's case (z), an indictment, alleging quòd nesciens potum fore venenatum bibit, was holden to be vicious, for not saying expressly venenum bibit.

Where the character or situation of the defendant is an essential ingredient in the offence, it is sufficient, as has already been seen, to aver that he being so and so did the act, since no ambiguity can arise; but to allege that A. disseised B. of land eristens liberum tenementum of B. would be bad, because it would be ambiguous whether the land was or was not B.'s freehold at the time of the disseisin (a), and no defect can be supplied by inference or intendment (b).

The charge must be single.

In a great number of instances it has been holden, that a charge in the disjunctive will avoid the indictment. As that A. murdravit vel murdrari causavit, verberavit B. vel verberari causavit, fabricavit vel fabricari causavit, for the charge is ambiguous (c). So it is insufficient, in an indictment for extortion, to allege that A. existens servus sive deputatus took, &c. (d).

But it has been holden, that circumstances necessary

(x) R. v. Goddard and Carleton, 3 Salk, 171. Ld. Ray. 1194. 2 Str. 904. Com. Dig. Ind. (y) 5 Co. 122. but see Ld.

Ray. 1363.

(z) 4 Co. 44.

(a) Bac. Ab. Ind. 556. See

p. 151.

(b) Bac. Ab. Ind. 556. R. v. Hazell. 13 East, 139. Staund. c. 31. p. 96.

(c) 5 Mod. 137. Salk. 371. 2 Haw. c. 25. s. 58, 2 Str. 900. Rep. temp. Hardwicke, 370.

(d) 2 Roll. 263.

to bring th defendant within the purview of a statute depriving him of the benefit of clergy, may be disjunctively alleged. As where an indictment for robbery alleged it to have been committed in or near the king's highway (e).

And it is the usual practice to allege offences cumulatively, both at common law and under the description contained in penal statutes. As that the defendant published and caused to be published a certain libel, that he forged and caused to be forged, &c. In Fuller's case (ƒ), it was objected that the second count of the indictment comprehended two distinct offences, viz. an endeavour to seduce, entice, and stir up M. L. to commit mutiny and also an endeavour to seduce, entice, and stir M. L. to commit traitorous and mutinous practices. But as the first count of the indictment was holden to be sufficient, the judges gave no opinion upon the second; Mr. Baron Perryn, however, observed, that it would probably be found to be a sufficient answer to this objection that though this charge might have been branched out into separate offences, the whole might be but the parts of one fact of endeavour, which must be stated as it is.

And it is the common practice to allege, in the same count of an indictment, the stealing of several articles, though the taking of each would constitute a distinct felony. And if any of these be uncertainly or improperly expressed, the indictment will still be good as to the rest; and in general where an indictment is defective as to some particulars, but sufficient as to the rest, it will be void only as to the first, and remain good as to the residue (g).

On the other hand it is necessary that every distinct

(e) 1 Hale, 535.

(f) Leach, 916.

(g) 2 Haw. c. 25 s. 47. 4 St.

Tr. 718. Fost. 194.

count in an indictment should contain a distinct and complete charge; and, therefore, where a statute inflicts a heavier punishment on an offender who commits the offence a second time within a limited period after the commission of the first offence, the indictment (h), to subject the offender to such heavier punishment, must allege the commission of the two offences in the same count (¿).

A second charge in the same indictment ought to be prefaced by an ulterius præsentant which must be alleged to be on the oath of the Jurors. (k)

Without inconsistency or repugnancy,

It seems to be clear, that any inconsistency in material allegations, will vitiate the indictment. Thus, an indictment was holden insufficient which alleged the forgery of a writing, by which A. was bound to B. ();" "that A. disseised B. who had no freehold (m);" "that A. murdered J. S. at B. where he was wounded, the death having been laid at C. (n);" "the selling by false weights and measures;" "the being absent from church for six months between two specified days, which comprised an interval of eleven days only (o)."

It frequently happens that an averment is faulty, because it is either inconsistent with the fact, or is repugnant to other parts of the indictment, or is in itself insensible and absurd, will not be fatal. For, according to the salutary and equitable maxim, "utile per inutile non vitiatur;" and the general rule is, that if the defec

(h) R. v. Tandy, Leach, 970. (i) For instances of indefinite allegations, see chap. X.

(k) Per Holt, C. J. Cranburn's Case, St. Tr, 8 W. 3. Trobridge's case cited by Shower in Cranbury's case,

(2) 3 Mod. 104. Bac.. Ab. Ind. 556.

(m) 2 Haw. c. 25. s. 62, Bac. Ab. Ind. 556.

(n) 2 Haw. c. 25. s. 62. 2 Haw. c. 23. s. 88, 89. 2, Hale, 188.

(0) Ib,