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But notwithstanding particular instances to the contrary, such loose and general pleading seems to have been at all times inconsistent with the general policy and true spirit of the common law; and in very early times, exceptions, upon this ground, were both taken and allowed. Thus, in the reign of Edward III. indictments, which charged the defendants, generally, with being common misfeasors, or common thieves, without shewing the particulars, were holden to be insufficient (). So, indictments have been holden to be defective, which barely charged the defendant with being a common defamer, vexer, and oppressor (), a common disturber of the public peace (m), a common deceiver (n), a common forestaller (o).
The only instances in which general pleading seems to be allowable, are exceptions from the necessity of the case, where the offence is made up of a number of minute acts, which cannot be enumerated upon the record, without great prolixity and the danger of variance (p).
Thus in an indictment against a common scold, it is sufficient to aver that she is a common scold; and in an indictment for barretry, it may be averred, generally, that the defendant is a common barretor. (q).
So, according to Lord Hale, an indictment, charging the defendant to be noctivagus, is good (r).
With respect to the degree of certainty and minuteness,
in averring the facts and circumstances of any particular offence, it may be proper to premise the following autho rities. Lord Hale says (s), "An indictment is nothing else but a plain, brief, and certain narrative of an offence committed by any person, and of those necessary circumstances that concur to ascertain the fact, and its nature."
In the case of the King v. Horne (t), Lord Chief Justice De Grey, in delivering the opinion of the judges, observed, "The charge must contain such a description of the offence, that the defendant may know what crime it is which he is called upon to answer, that the jury may appear to be 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. This, I take to be what is meant by the different degrees of certainty mentioned in the books; and it consists of two parts; the matter to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed must be set out, and all beyond are surplusage; and therefore, in the instance for a prosecution for perjury, it is necessary to set out the oath, as an oath taken in a judicial proceeding, and before proper persons, in order to see whether it is an oath which the court had jurisdiction to administer. In the prosecution of a constable, for not serving the office, it is necessary to set out the mode of his election ; because, if he is not legally elected, he cannot be guilty of a crime in not serving the office. Where the circumstances go to constitute the crime, they must be set out. Where the crime is a crime independently of such circum
consists of a multiplicity of facts, per Grose, J. R. v. Mason 1 Leach, C. C. p. 548.
(s) 2 Hale, 169.
stances, they may aggravate, but do not contribute to make the offence."
In the case of the King v. Hollond, (u), the court held that three things ought to concur in every criminal proceeding 1st. That the party accused should be apprized of the charge he is to defend. 2dly. That the court may know what judgment is to be pronounced according to law. 3dly. That posterity may know what law is to be derived from the record. To which may be added: 4thly. That the accused may be enabled to plead his conviction or acquittal to another indictment, for the same offence. One count of the indictment, in the last case, alleged that the defendant, and other persons in office, "did not commence and prosecute the war against Tippoo Sultaun, with all possible vigour and decision;" and this count the court held to be vicious, because it did not sufficiently apprize the defendant of that which was intended to be proved against him.
In the case of the King v. Stevens (v) and Agnew, Lord Ellenborough, C. J. in delivering the judgment of the court, said, "every indictment, or information, ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repug nancy; and, except in particular cases, where precise technical expressions are required to be used, there is no rule that other words shall be employed, than such as are in ordinary use."
On the other hand, it is unnecessary, even in an indictment for treason, to detail the minutiae of those circumstances intended to be proved against the defendant. It is sufficient that the charge be reduced to a reasonable degree of certainty, so that the defendant may be apprized of the nature of it, and prepared to give an answer to it (x), (x) Fost. 194.
(u) 5 T. R. 623. (v) 5 East, 258.
The substantial description of the offence, will be considered under the following divisions;
1. Of alleging the nature and degree of the offence against one or more.
2. Of setting forth the means and manner of committing the offence, with the circumstances immediately connected therewith.
3. Of alleging circumstances collateral to the principal act, but which are essential to the offence.
4. Of alleging the defendant's intention.
5. Of the special description of persons, places, and things, connected with the offence, with names, quantity, number, and value.
Of alleging the Nature and Degree of the Offence in technical Terms.
I. As against the Principal in the first Degree, p. 69. II. Against Principals in the second Degree, p. 75.
1. THE law distributes crimes into three great classes, -treasons, felonies, and misdemeanors, inferior to felony. Each of these is attended with peculiar incidents, both before and after conviction. It is therefore one important office of an indictment to specify, in technical language, the particular genus of crime imputed to the defendant, that he may avail himself of those advantages which the law allows him, that he may be excluded from those which the law withholds, and that the court may be authorized, after conviction, to inflict the appropriate measure of punishment. This is done, by charging the treasonable act to have been committed proditorie, and the felonious act to have been done felonice (a); these words are absolutely essential to the description of these offences; and the intention to charge a bare misdemeanor, is ascertained by the omission of both the words descriptive of treason and felony; for it seems to be clear, that no offence, as described in any indictment, can amount to more than a misdemeanor (b), if it be not laid to have been committed either proditorie or felonice (c).
(a) Staunf. 96. a. 2 Haw. c. 25. s. 55.
(b) Note, the term misdemeanor is in general used to signify, in these pages, a
crime below the degree of fe lony.
(c) 2 Hale, 172. 2 Haw. c. 25. s. 55. 3 Ins. 15.