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Next, in the description of the species of treason, felony, or misdemeanor, charged upon the defendant, it is frequently necessary to make use of technical and appropriate words, which are either generally descriptive of the offence itself, or of the particular facts connected with it. A strict adherence to such words, may, in some cases, appear too nice and critical to serve the end of justice; yet it seems founded upon many strong and substantial
For instance, by successive decisions, the legal value and weight of a term or phrase of art is ascertained; and, should a doubt arise as to its meaning, reference for the purpose of removing it, may be had to former authorities, whilst every new expression would introduce fresh uncertainty, and the benefit to be derived from precedent would be wholly lost.
In all indictments for treason, the offence must be laid to have been committed traitorously. But if the treason itself be laid to have been so committed, whether it consist in compassing and imagining the king's death, or otherwise, it is not necessary to allege every overt act to have been traitorously committed (d). In the case of treason against the king's person, the indictment, in conclusion, should allege the offence to have been committed against the defendant's duty of naturul allegiance, if he be a natural born subject, or simply against his duty of allegiance, if he be an alien; but the word natural, does not appear to be essential in the first instance, and would probably be fatal in the latter, if it turned out that the defendant was an alien (e).
(d) Cranbourn's case, 4 St. Tr. 701. Salk. 633. East, P. C. 116.
(e) Fost. 186. 4 St. Tr. 67, 9. Salk. 633. 4 Mod. 163.
1 Hale, 59. 77. 92. Dyer, 145.
In indictments for inferior treasons, such as relate to the coin, &c. it is usual to allege the offence to have been feloniously as well as traitorously committed; but this does not appear to be essential. So petit treason is usually alleged to have been feloniously as well as traitorously committed (f), and the indictment, in conclusion, alleges that the defendant did traitorously and feloniously kill and murder; in which case, the defendant, though acquitted of the treason, may nevertheless be convicted of the felony and murder (g).
It has already been observed, that every felony must be alleged to have been committed feloniously; and in indictments for particular felonies, technical and appropriate words are frequently essential to the description of the offence. Thus, in an indictment for murder, it is essential to state, as a conclusion from the facts previously averred, that the said defendant, him, the said C. D. in manner and form aforesaid, feloniously did kill and murder (h); a term of art, which can in no case be dispensed with. So it must also be alleged, that the offence was committed of the defendant's malice aforethought; words, which cannot be supplied by the aid of any other. And if any of these terms be omitted, or if the defendant be merely charged with killing and slaying the deceased, the - offence will amount to no more than manslaughter (i).
(f) Fost. 329.
(g) Fost. 328.
(h) 1 Hale, 450. 466. 4 Bl. Comm. 307. Yel. 205. The term was originally introduced, in order to exclude the offender from his clergy. R. v. Clerk, Salk. 377, and is not essential
to an indictment for manslaughter.
(i) 1 Hale, 450. 466. P. C. 345. A killing by misadventure, or chance medley, is described to have been done "casually and by misfortune, and against the will of the defendant."
Where the death arises from any wounding, beating, or bruising, it has been said, that the word struck (k) is essential, and that the wound, or bruise, must be alleged to have been mortal. And whatever doubt may rest upon the necessity of the first allegation, it would not be prudent, at all events, to omit it where it is applicable; and as to the second (7), it has been holden, that its omission cannot be supplied by the averment, which is in all cases. necessary, that the party died of the stroke (m).
In appeals and indictments of mayhem, the words feloniously, and did maim, are essential (n).
In appeals and indictments of rape, the words feloniously ravished are essential, and the word rapuit is not supplied by the words carnaliter cognovit (o); and it seems that the latter words are also essential in indictments (p), though the contrary has been ruled in the case of an appeal (9).
The usual course, in an indictment for rape, is to aver that it was committed against the will of the female, and therefore it would not be safe to omit the averment. In an indictment for an unnatural crime, the descriptive words of the statute, taking (r) away clergy, must be used; and it is not sufficient to say contra naturæ ordinem rem habuit veneream et carnaliter cognovit (s).
(k) 2 Hale, 184. 1 Buls. 124. 2 Ins. 319. 2 Haw. c. 23. s. 82. Cro. J. 635. 5 Co. 122.
(2) Lad's case, Leach, 112. (m) 2 Hale, 186. 1 Haw. c. 23. s. 82. Kel. 125.
(n) 3 Ins. 118. 2 Haw. c. 23. s. 15, 16, &c. 2 Haw. c. 25. s. 55.
(0) 1 Hale, 628. 2 Hale, 184, 1 Ins. 190. 2 Ins. 180.
(p) 1 Hale, 632. 3 Ins. 60. Co. Lit. 137. 2 Ins. 180.
(g) 11 H. 4. 13. 2 Haw. c. 23. s. 79. Summ. 187. Staun. 81.
(r) 5 Eliz. c. 17. 3 & 4 W. & M. c. 9. s. 2. Fost. 424. Co. Ent. 351. 3 Ins. 59. 1 Haw. c. 4. s. 2.
(s) East, P. C. 480. 3 Ins, 59.
In an indictment for burglary, the essential words are feloniously and burglariously broke and entered the dwelling-house, in the night time; and the felony intended to be committed, or actually perpetrated, must also be stated in technical terms (t). So in case of simple larciny, the words feloniously took and carried away the goods (u), or took and led away the cattle, are essential.
In an indictment (x) for robbery from the person, the words feloniously, violently (y), and against the will, are essential; and it is usual, though it seems to be unnecessary, to allege a putting in fear. Piracy must be alleged to have been done feloniously and piratically (≈).
So, in case of misdemeanors, technical words are frequently necessary.
Thus, a common barretor, and a common scold (a), must be charged as such; and in an indictment for maintenance, the word manutenuit should be inserted, and the word riot seems to be used in all indictments for that offence (b).
In an indictment for a riot, it is usual to allege it to have been committed in terrorem populi (c), but this does not appear to be essential, if it be alleged that the defendants assembled riotously and committed an unlawful act (d). It has been said, that where the fact, laid in an indict
(t) 1 Hale, 549.
(u) 1 Hale, 504. 2 Hale, 184. And it has been said that for stealing an horse, it should be cepit et abduxit, for stealing sheep cepit et effugavit; but I find no decision which warrants these unprofitable distinctions. (x) 1 Hale, 534. Fost. 128. 3 Ins. 68.
(y) Qu. et vide Smith's case,
East's F. C. 783. in which it was holden, that violenter is not an essential term of art.
(z) 1 Haw. c. 37. s. 6. 10. (a) Com. Dig. Ind. G. 6. Mod. Ca. 11.
(b) R. v. Johnson and others, Wils. 325.
(c) 1 Haw. c. 65. s. 5. (d) See Lord Holt's opinion, R. v. Soley. 11 Mod. 115.
ment, appears to be unlawful, it is unnecessary to allege it to have been unlawfully done (e). In truth, the averment is in no case essential, unless it be part of the description of the offence, as defined by some statute; for if the fact, as stated, be illegal, it would be superfluous to allege it to be unlawful; if the fact stated be legal, the word illicite cannot render it indictable; and the same observation is applicable to the terms wrongfully, unjustly, wickedly, wilfully, corruptly, to the evil example, falsely, maliciously, and such like; which are unnecessary, if they are not to be found in the very definition of the offence, either at common law, or in the purview of a statute; and at common law it seldom happens that one of these expressions may not be supplied by an equivalent one. Thus, though it is usual to allege that the party falsely forged and counterfeited, it is enough to allege that he forged, because the word implies a false making; and in indictments for libels, it is sufficient either to use the word falsely or maliciously (f), or an equivalent epithet.
When the indictment is framed upon the purview of some statute, it may be laid down as a general rule, that all the epithets of manner contained in the statute, should be (g) averred upon the record. In some instances, indeed, indictments have been holden to be sufficient which did not strictly pursue the words of the statute on which they were founded (h); but it is at all times imprudent to omit any part of the description contained in the statute, since such an omission will in general be fatal. Thus an
(e) 2 Roll. Ab. 82.
(f) Sty. 392. 2 Will. Saun. 242.
(g) 2 Haw. c. 25. s. 110. Kel. 8. Fost. 424.
(h) Fost. 130. 1 And. 195. R. v. Hall and Crutchfield, East, P. C. 895, 896.