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tioned, either in the indictment or the margent, will be vicious (c).
If the offence be laid to have been committed in a city which is a county of itself, but the jurisdiction of the latter is not co-extensive with the former, the offence should be laid within both (d).
It is a general rule, that a defective venue is not aided by verdict, and may be excepted on demurrer, or by motion in arrest of judgment (e). And any uncertainty in the place or county, will avoid the indictment, as if an act be laid at such a place, in comitatu prædicto, two counties having been mentioned before (f). And the case is the same, though one of the counties be mentioned in the margent only (g).
So where the defendant is described as late of W. and the offence is laid in the parish aforesaid. (h).
So where the offence is laid at the town aforesaid, no town having been previously mentioned (i).
In an indictment, though it is unnecessary to aver a mere conclusion of law with either time or place, yet if it be averred with time and place, and improperly, the indictment will be defective.
If therefore, the stroke be laid at A. and the death at B. the indictment averring, in conclusion, that the defendant feloniously murdered the said C. D. at A. is vi
(c) 3 P. Wms. 439. 2 Hale, 165, 166. 2 Haw. c. 25. s. 128. Cro. Eliz. 137. Lenthal's case, ib. 606. Child's case, ib. 750. 101, 184, 618. 6 Sid. 345 3 Wils. 340.
(d) R. v. Bruce, Andr. 62. (e) 1 Roll. Ab. 781. 5 T. R. 162.
(f) 2 Hale, 180. Wingfield's case, Cro. Eliz, 739.
(g) Cro. Eliz, 739. 2 Hale, 180. aliter in civil cases. 3Wils, 340.
(h) 5 T. R. 162.
(i) 2 Haw. c. 25, s. 83. Cro. Car. 465,
cious, for the murder was completed at B. by the death of the party there (k).
The words from and unto, when applied to place, are construed in an exclusive sense (1). Thus from Hatley unto (m) Gamlingay, has been holden to exclude Gamlingay; so the words to and from the town of Battel (n), were holden to exclude Battel itself.
But though the place must be precisely laid in the indictment, it is not necessary to prove the offence to have been committed there; but it is sufficient to shew by evidence, that it was committed at any other place in the same county; and it is, in general, unnecessary to prove an offence to have been committed in any particular place, unless the place itself be of the essence of the crime, as in an indictment for striking in a church yard, or in indictments, where the situation of a house or road is specially described, as in an indictment for burglary or for the non-repair of an highway (0), or for a nuisance near an high road and dwelling-house (p).
The rules relating to the averment of time, apply, for the most part, to the averment of place: and where the time must be repeated upon the allegation of subsequent acts, the repetition of place is generally also necessary (q).
The allegation of any personal disqualification, necessary to bring the defendant within the purview of a penal statute, need not, in general, be pleaded with either time or place. Thus, under the statute which
(k) 2 Haw. c. 25.
() 2 Roll. Ab. 81.
(m) Leach, 596. R. v. Gamlingay, 3 T. R. 513.
(n) Burr. 376. Leach, 597. (2) See tit. description of
persons and things connected with the offence.
(p) R. v. White, Burr. 333. (7) 2 Hale, 180. per Buller, J. 5 T. R. 620.
made it treason for person born within the realm and in popish orders, to remain here, it has been holden, that the indictment need not shew any venue (r) for the birth or denization. So under the stat. 1 J. 1. c. 7. in averring that the wife was living at the time of attempting to contract the second marriage, it is sufficient to allege that she was then living (s) without laying any venue So in barretry a venue is unnecessary, for the offence is not confined to any particular place, and the offender is to be tried by a jury de corpore comitatus (t). And, in general, where the offence consists in a bare nonfeasance, it need not be alleged to have been committed any where, as where the defendant is indicted for not coming to church (u). In the statement of mere introductory cir cumstances, a venue seems to be unnecessary (x).
(r) 2 Haw. c. 25. s. 84. 112. (s) I have heard the objection taken twice and as often overruled.
(t) 2 Hale. 180. Qu. and see Mann's case, 3 Car. B. R.
(u) And, 139. Hob. 251. 2 Leon. 167. 1 Haw. c. 10. (x) R. v. Crossley, 7 T. R. 315.
Of the substantial Description of the Offence in the Body of the Indictment.
THE general rule has long been established, that no person can be indicted but for some specific act or omission, or punished, unless such act or omission be charged in apt and technical terms, with precision and certainty on the face of the record. Before this important part of the subject is resolved into its elementary divisions, it may be proper, briefly, to notice the principal reasons, on the ground of which the law exacts a certain particular description of the offence, for these, it is evident, supply the true test by which the sufficiency of any criminal charge is to be ascertained.
It is necessary then to specify, on the face of the indictment, the criminal nature and degree of the offence, which are conclusions of law from the facts; and also the particular facts and circumstances which render the defendant guilty of that offence.
1st. In order to identify the charge, least the grand jury should find a bill for one offence, and the defendant be put upon his trial, in chief, for another, without any authority. And this is further necessary (a).
2ndly. That the defendant's conviction or acquittal may enure to his subsequent protection, should he be again questioned on the same grounds; the offence, therefore, should be defined by such circumstances as will, in such case, enable him to plead a previous conviction or acquittal of the same offence (b).
3rdly. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims as incident to the nature of the case (c).
4thly. To enable the defendant to prepare for his defence (d) in particular cases, and to plead in all (e), or if he prefer it, to submit to the court by demurrer, whether the facts alleged, (supposing them to be true), so support the conclusion in law, as to render it necessary for him to make any answer to the charge.
5thly. Finally and chiefly, to enable the court looking at the record after conviction, to decide whether the facts charged, are sufficient to support a conviction of the particular crime (ƒ), and to warrant their judgment; and also, in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender (g).
Many instances are to be found in the older reports, of indictments, which have been supported, though they charged the defendants, in general terms, with being heretics, traitors, insidiatores viarum et depopulatores agrorum. (h). For the insidiatio viarum and depopulatio agrorum, were considered as hostile acts; and the offenders convicted upon such indictments, were for that reason, denied the benefit of clergy, notwithstanding the stat. 25 E. 3. c. 4. pro clero (i). But upon complaint made by the clergy, the stat. 4 H. 4. c. 2. was made, which enacts, "that these words shall no more be put into indictments, nor if they be, shall have such effect as to take from the prisoners indicted the benefit of clergy."
(c) Staunf. 181:
(d) R. v. Holland, 5 T. R. 623. Fost. 194.
(e) 3 Ins. 41.
(g) Ibid. 5 T. R. 623.
(h) 3 Ins. 41. 11 Co. 19. 2 Haw. c. 25. s, 59. 1 Hale 571. 2 Hale, 333.
(2 Hale, 338.