three years after the offence committed; the time, as averred in the indictment, should appear to be within the limit; but it is not necessary expressly to aver that the death happened, or that the offence was commited, within the temporal limit (f). In general it seems that an uncertainty in the day or year, will vitiate the indictment. A. was indicted for that on the 1st & 2nd days of May, he made an assault upon B. and a certain cloak of the said B. then and there found, feloniously took, &c. and the indictment was holden to be vicious, because two days had been before mentioned (g). So an indictment for the killing of B. on the feast of St. Peter, is bad, since there are two feast days of St Peter, each of which is distinguished by an addition (h). So if an indictment lay the offence to have been committed on an (i) impossible day, as if it lay it on a future day (k), or lay one and the same offence on different days, (1), or on such a day as makes the indictment repugnant (m) to itself, it is void, and no defect of this nature can be aided by verdict. The word until is capable of either an exclusive or inclusive sense in the case of the King v. Stephens and Agnew, the information alleged, that the defendants held 5 East, 259. Where in delivering the judgment of the court, Lord Ellenborough held, that in an appeal it was unnecessary to aver, that the party died within a year and a day after the stroke, if the fact appeared from a comparison of of dates. (g) 2 Hale, 178. (h) Ibid. (i) Moore, 555. R. v. Fearnly, 1 T. R. 316. 2 Haw. c. 25. s. 77. (k) 2 Haw. c. 25. s. 77. Rastal, 263. (1) 2 Haw. c. 25. s. 77. 2 H. 7. 7. (m) 2 Haw. c. 25. s. 77. certain offices in the service of the East India Company, from, &c. until the 29th of November, 1795, and afterwards charged that each of the defendants, whilst he held and exercised the said office as aforesaid, did, to wit, on the 29th of November, 1795, receive a certain present, &c. And it was holden upon motion in arrest of judgment, that the word until was capable of an inclusive meaning, and that it appeared from the context to have been intended in that sense (n). But though time must always be alleged in pleading (0) every material fact, it is never necessary to prove the allegation, unless time be a material ingredient in the (n) 5 East, 244. See also the stat. 40 G. 3. c. 50. which enacts, that persons entering any forest, &c. in the night, i. e. between the hours of eight at night, and six in the `morning, from the first of October to the first of February, or between the hours of ten at night, and four in the morning, from the first of February to the first of October, having any gun, &c. to kill game, &c. shall be deemed rogues and vagabonds, &c. It clearly was not the intention of the legislature to exempt persons committing those acts on the first of Feb. and on the 1st of Oct. and therefore either to or from must have been used inclusively; it must however, be acknowledged, that this enactment is loosely (0) 5 T. R. 620. R. v. Holland. offence. So that an overt act of treason may be proved to have been committed on a day different from that laid in the indictment (p). And therefore upon a second indictment, the defendant may, by proper averments, shew that he has been already acquitted of that offence upon the first, though the two indictments allege the offence to have been committed on different days; for it would be hard indeed if the prosecutor might vary from the day laid in the indictment for the purpose of conviction, and the prisoner could not do the same in order to shew a previous acquittal (9). II. Averment of Place. The necessity of shewing that the offence was committed within the local jurisdiction of those who have power to inquire, has already been considered; and it is essential to shew that every material fact, which is issuable and triable, was done at some particular vill (r), or hamlet, or place, within the county or other division (s), not only for the sake of shewing the authority to inquire, but also for the purpose of procuring a jury to be returned from the neighbourhood (t). (p) Foster, 8. See also Lord Balmerino's case, 9 St. Tr. 587. 3 Ins. 230. Syer's case, Keb. 16. 1 Hale, 361. 2 Hale, 179. 291. 2 Ins. 318. 5 T. R. 620. case, 4 Co. 45. where an indictment, before the coroner of the household, &c. was quashed, because it laid the stroke and the death at S. in the county of Middlesex, without alleging (q) 2 Ins. 318. 2 Hale, 179. that S. was within the verge, In appeals of death, the statute of Gloucester directs that the offence shall be laid within the proper vill; but since the statute is directory, it does not seem to be absolutely essential to lay it within a vill (u). In other cases a material fact may be laid at any place, from the visne or neighbourhood of which a jury can be returned. A venire may be awarded to any place which is of so limited a compass that all who live in and near it, may reasonably be presumed to have some knowledge of the persons resident, and facts done, within its limits (v). (u) St. of Glou. c. 9. 2 Haw. But not from London, both on c. 23. s. 92. may (v) Ibid. A visne come from a town. 2 Haw. c. 23. s. 92. a ward, Yelv. 159. 1 Sid. 178. Cro. J. 222. parish, 6 Co. 14. Burr. 333: hamlet, 2 Haw. c. 23. s. 92. 6 Co. 14. burg, Cro. Eliz. 866. forest, Co. Litt. 125. 2 Roll. account of its great extent and because it has been the constant practice to shew the parish and ward 2 Haw. c. 23. s. 92; and the offence may be laid in a parish without the ward. But it should be laid either in a parish, or in a ward, 7 H. 6. 36. Burr. 333. 9 Co. 66. 2 Haw. c. 25. s. 283. Harris's case, Leach, 928. In this last case judgment was arrested, because the offence was alleged to have been committed at the Guildhall of the city of London. So a visne cannot come from a liberty, for it is a thing incorporeal, and not a place, 1 Sid. 326.: nor from the scite of a manor, because it does not signify a place but the limits of a place, 2 Roll. Ab. 618.; nor from a weald, Whenever the place is generally alleged, the law will intend it to be a vill, unless the contrary appear upon the record (x). If, therefore, a fact done in a vill, within a parish which contains several vills, be alleged to have been done at the parish generally, it will be intended, that the parish contains but one vill; and therefore to take advantage of the defect, the defendant must plead in abatement (y). If there be no such vill or place within the county, the defendant may plead in abatement (2); but the indictment or appeal in such a case is void, and so is all process founded upon it, by the express provision of the stat. 7 H. 5. 9 H. 5. c. 1. and 18 H. 6. c. 12. It must be shewn that the vill or place is within the county (a). But if the place be alleged in the body of the indictment, without the county, the indictment will still be good, if the place be referred to the county in the margent by the words," in the county aforesaid (b)." In civil pleadings, the place laid in the body of the declaration will be referred to the county laid in the margent, without the aid of any particular words; but in indictments it is otherwisé, and a mere allegation of the place, without reference to a county previously men 1 Sid. 88. 2 Roll. Ab, 617. tamen qu. and vide 2 Haw. c. 23. s. 93. (x) Salk. 59. 8 East, 174. 1 lnst. 125. b. 2 Haw. c. 23. s. 92. Burr. 333. . (y) 2 Haw. c. 23. s. 92. Salk. 69. (z) 2 Haw. c. 23. s. 92. Cro. Eliz. 200. 35. (a) 2 Hale, 180, Co. 84. (b) Com. Dig. Ind. G. 2. 2 Hale, 180. 3 P. Wms. 439. |