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THE legal definition of an offence being proposed, as well as the circumstances of a particular case falling within that definition, how is the charge to be described against the offender on the face of the record? With what certainty of legal terms and language? With what enumeration and detail of circumstances? To answer this important question with as much brevity as consists with clearness, and with reference to the authorities, is the principal object of this treatise.

I propose, therefore, in the first place, briefly to enumerate the different modes of criminal accusation recognized by the courts, and shall then proceed to consider their several requisites with some. minuteness, and also to notice such other parts of the record as are connected with the main design.

1. A written accusation presented to the grand jury, (sworn to inquire for the body of the county,), at the suit of the king, is termed a bill of indict<

ment, and when found by them, on oath, to be true, is called an indictment (a).

A grand jury may find a bill to be true as to one or more charges contained in distinct counts, and find that it is not a true bill, or return it "not found," as to the rest (b); but they cannot divide an entire count, so as to find it true as to part only; and if they do, the whole of the finding is void, and a new bill should be presented (c). A bill cannot be found, unless twelve at the least of the grand jury agree to find it; for no man can be convicted, at the suit of the king, of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours, that is by twelve at the least of the grand jury in the first place, and afterwards by the whole of the petit jury, twelve more, finding him guilty upon the trial.

The indictment having been so found is publicly delivered in court.

An indictment, in a larger sense, is frequently used to denote an accusation or declaration, at the suit of the king, for some offence found by a proper jury of twelve men, at the suit of the king (d); and, in this sense, a presentment by a grand jury, when reduced to proper form, is termed au indictment, though no bill has been preferred (e).

(a) 2 Hale, 153. 2 Haw.

e. 25. s. 1.

(b) Cowp. 325.


(c) 2 Haw. c. 25. s. 2. Yel.

(d) Co. Litt. 126. b.

(e) 2 Ins. 739.

2. A presentment is the notice taken by the grand jury of any offence, from their own knowledge (f) and observation, without any indictment laid before them at the suit of the king. Upon such presentment, the officer of the court must frame an indictment before the party can be put to answer it (g); in a larger sense, a presentment comprehends all inquisitions of office and indictments found by a grand jury (h), and all such as are made by magistrates by virtue of a statute (¿).

3. When the accusation is found by a jury specially returned to inquire concerning that particular offence, it is termed an inquisition; as where a person is found guilty of the death of another upon an inquisition before the coroner on his view (k).

4. A defendant may be arraigned upon a verdict; as where, in an action of trespass, the jury find that the defendant stole the goods, or in an action for words imputing felony, where the defendant justifies that the words are true, and the jury find their verdict for the defendant. In such cases it is said, the party is liable to be put to answer, as on an indictment, without any further accusation, the charge having been found by a jury of twelve men. But, according to Serj. Hawkins, unless the court,

(f) Lamb. 1. 4. c. 5. 4 Bl. Comm. 301.

(g) 2 Ins. 793.

(h) 2 Haw. c. 25. s. 1,

(2) See the st. 13 G. 3. c. 78, as to presentments of highways, &c. see 2 Saund. 157.

(k) 2 Haw. c. 25, s. 6,

in which such a verdict is returned, has jurisdiction over the crime itself, such a verdict seems to be of little force (1).

5. An appeal was an accusation, by one private subject against another, of some crime (m); and in some instances, where the private appellant did not or could not proceed, the defendant might have been arraigned upon the appeal at the suit of the king (n). By the st. 59 G. 3. c. 46. these are wholly abolished.

6. An information is a declaration of an offence or charge against any one at the suit of the king (o); these are of three kinds:

1st. Those which are prosecuted at the suit of the king, and which are filed by his own immediate officer the attorney-general; and, 2dly, those which are prosecuted in the name of the king at the relation of some private person, or common informer, and these are filed by the king's coroner and attorney in the court of King's Bench. 3dly, Such as are in the nature of penal actions brought to recover penalties (p).

Various as these modes of accusation are in their origin, in their requisites, whether formal or substantial, they closely resemble each other (g); in

(1) 2 Haw. c. 25. s. 6. R. subject, see 2 Haw. c. 25. s. 7, v. Jolliffe, 4 T. R. 493. 8, &c.

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appeals, indeed, greater nicety was frequently exacted than in the proceeding by indictment; but the former, as has already been observed, are now abolished. In describing the different requisites of an indictment, presentment, inquisition, or information, in order to avoid repetition, the term indictment only will be used, the same rules being in general applicable to all.

The form and requisites of an indictment, and the process, pleas, &c. will be considered in the following order:

1. The formal requisites of an indictment, including the county (r) in which the offence is to be laid-the joinder of parties (s)-of offences-the description of the defendant ()—the general averments of time and place (u).

2. The substantial description of the offence itself (x) in the body of the indictment.

3. The conclusion of the indictment (y).
4. Indictments upon statutes (2)

5. The caption of an indictment (a).

6. The several kinds of defects in indictments (b), and the doctrine of amendment (c),

7. Process (d), motion to quash (e), arraign

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