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sion, which is called for in the description of the offence, for the purpose of informing the defendant what is intended to be proved against him, and of so identifying the charge, that an acquittal or conviction may enure to his subsequent protection.
In this chapter, then, it is proposed to examine with some minuteness, in what cases, and with what degree of precision, it is necessary to allege the means and manner of offending; and with this view, and for the sake of preserving as much connection as so extensive a subject admits of, instances will be selected, which range themselves within the following classes:
The first comprising offences committed by forcible means, such as murder, burglary, and larcinies of every description.
The second, offences committed by fraudulent means, including forgery, perjury, and other indictable frauds.
The third, all procurements by illegal solicitation, &c. as by accessories before the fact, &c.; and also offences. resting in tendency, whether they consist in bare solicitation, in the publication of libels, in the speaking of blasphemous or seditious words, (which may not improperly be considered in the light of solicitations,) or in any other criminal attempt or endeavour.
The fourth, all offences consisting of misconduct in office, as by the extortion of money, &c.; and, as analogous to these, the sending of threatening letters, and the extortion of money, by threats of legal process.
The fifth, illegal combinations and conspiracies. 1. Offences committed by FORCIBLE means.
It is still usual, in indictments for forcible injuries, to make use of the technical words, vi et armis, but by the stat. 37 H. 8. c. 8. it is enacted, that "inquisitions or indictments, lacking the words vi et armis, viz. baculis culLellis arcubus et sagittis, or any such-like words, shall
be taken, deemed, and adjudged, to all intents and purposes to be as good and effectual in law, as the same inquisitions and indictments, having the same words, were theretofore taken, deemed, and adjudged to be." These words are, therefore, clearly superfluous (a), even where the crime is of a forcible nature, and were unnecessary at common law, where the injury was not forcible (b).
The description of an injury to the person, is usually prefaced by an averment, that the defendant, "in and upon A. B. made an assault;" and where the offence amounts to felony, the indictment should aver, that the assault was feloniously made, and will be defective if the averment be omitted (c).
In appeals and indictments of homicide, a great degree of minuteness has ever been held essential to the description of the instrument and means by which the crime was perpetrated, although great latitude has been permitted in departing from such a description in evidence.
Thus, it is usual to state the particular weapon with which the mortal blow was inflicted, or the species of poison which was administered; but evidence may be given of a blow inflicted by a different instrument, or, that the death was effected by means of a different species of poison (d), provided the nature and kind of destruction proved, agree in substance with that alleged. Thus, if the wound be stated to have been inflicted with a dagger, it will be satisfied by proof of a striking
(a) 2 Lev. 221. Cro. J. 473. 3 P. Wms. 497.
(b) Skinner, 426. 2 Haw. c. 25. s. 90. And in case of murder, the force at common law is implied from the very nature of the offence, 2 Hale,
187. 1 Haw. c. 34. s. 3. 1 Hale,
with a sword, rapier, staff, or bill (e), for, they produce the same kind of mischief; and it is said, that the word struck, is the essential term (f), whence it should seem that if the death be proved to have ensued from a striking, a variance from the instrument alleged will be immaterial. But evidence cannot be given of a species of death, totally different from that specified; therefore, if it be alleged to have been effected by striking, it cannot be proved by evidence of poisoning, strangling, or starving (g). It is usual also to allege the manner in which the weapon was held, as, that it was held in the defendant's right hand, or in both his hands, and to state its value; but these averments do not seem to be material (h). It is necessary to set forth a description of the wound, (or other mischief effected by the stroke,) the part of the body (i) in which it was inflicted, and its dimensions, with great certainty. Thus it has been holden to be insufficient, to allege that the wound was given about the breast (j), or about the navel (k), or on the arm, or side, without saying, which arm or side (7); but, if the wound be once well described, a subsequent imperfect description will not vitiate the indictment; as, if the wound be alleged to have been given on the left side of the belly, about the navel; for the first part of the description is
(e) 9 Co. 67. In Sharwin's case, East, P. C. 341. the allegation of an assault with a wooden staff, in an indictment under the stat. 7 G. 2. c. 21. was held to be satisfied by proof of an assault with a stone.
(f) Cro. J. 635. Palm. 282. 5 Co. 122. 2 Hale, 185. 1 Buls. 124:
(g) Hale, 291.
(h) 2 Hale, 285. 2 Haw. c. 23. s. 79, 80.
(i) 4 Co. 40. 2 Haw. c. 23.
(j) Young's case, 4 Co. 40. 2 Hale, 181.
(k) Walker's case, 4 Co. 41. (1) 2 Hale, 185. Webster's case, 31 Eliz. 5 Co. 131. Sty. 76.
certain, though the latter is uncertain (m). The dimensions of the wound must be described, its length and depth (n). But it is sufficient to allege, according to the real circumstances of the case: as, that the defendant struck a mortal blow, on such a part of the body, or gave him, in such a part, a mortal wound, penetrating into, and through his body (v).
Where several blows have been given, or different kinds of poison have been administered, it may be averred, that if the party did not die of the one, he died of the other (p); or, it may be alleged, generally, that he died of the said several blows, so struck, or of the poisons so administered (q). The reason for requiring the means to be set out with such particularity, seems to have been, that the court might see that the wound was serious enough to occasion death.
It must be averred, that the wound, or bruise, was mortal (r); and finally, the adequacy of the means to produce death must be further shewn, by a direct averment, that the party died of the stroke, or poisoning, and this cannot be supplied by any implication or intendment whatsoever (s).
In an indictment for burglary, it is unnecessary to state the particular means of breaking and entering; it is sufficient to allege generally, that the defendant broke and entered (t).
In case of robbery from the person, it is not necessary to state the particular means by which the prosecutor was induced to yield up his property, or to state any
(m) Walker's case, 4 Co. 41. (n) 2 Hale, 186. 2 Haw. c,
23. s. 81.
(2) East, P. C. 342,
(q) Weston's case, 3 Ins. 50. (r) Lad's case, Leach, 112. (s) 2 Hale, 186. 1 Haw. c. 23. s. 82, 83. Kel. 125. (t) 1 Hale, 519.
particular threats or violence, or even to allege, that he was put in fear; it may in all cases be alleged, genérally, that the offence was done violenter et contra voluntatem (u).
In an indictment for simple larciny, it is unnecessary to set forth the particular means or contrivance (x) made use of to gain possession of the property, or to remove it; but the indictment alleges generally, that the defendant feloniously stole, took, and carried away the goods.
In the description of inferior injuries to the person, such as battery, it is unnecessary to state the particular means by which the bodily harm was effected; it seems to be sufficient to allege, that the defendant did beat, strike, wound, &c. and to aver the damage thereby done to the person assaulted (y).
An indictment for a forcible entry at common law, must charge the defendants with having used such a degree of force, as amounts to a breach of the peace (z). But it is sufficient, in such an indictment, to aver, that the defendants unlawfully, and with a strong hand, entered the prosecutor's mill, &c. and expelled him from the possession thereof (a).
II. Offences committed by FRAUDULENT means.
It seems to be an universal rule, that in the description of all crimes founded in fraud, the instrument, or means of fraud, must be specified.
And this is necessary, because every fraud is not an
(u) 1 Hale, 534. Fost. 128. East's, P. C. 783.
(x) 1 Hale, 504. 2 Hale, 184. R. v. Moore, Leach, 354.
(y) In a conviction for killing deer it was held to be un
necessary to specify the instrument. R. v. Speed, Carth, 502. 1 Ld. Ray, 584.
(z) R. v. Wilson and others, 8 T. R. 357. 6 Mod. 178. (a) Ib.