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it introduced new matter; and they all held, that an innuendo could not supply a previous defect in certainty; for an innuendo signifies nothing, unless there be some matter of fact precedent to which it may refer.
And it seems that the information in this case ought to have alleged, in the first place, that the question was, whether Mr. Strode was at Newnham, in Devonshire, at a time specified; and then the subsequent averment, that the defendant swore that Mr. Strode was at Newnham in Devonshire at that time, would have been proper (d.)
Where however the new matter thus introduced is superfluous, the sense being complete without it, the innuendo may be rejected as surplusage. As in the case of Roberts v. Cambden (e,) where the words "attorneygeneral" were alleged to mean the attorney-general for the county palatine of Chester. So in Aylett's case (ƒ) the indictment alleged, that the defendant did depose and swear, of and concerning the said complainant, to the effect following, to wit, that he the said E. Aylett was arrested on the steps of his own door, and before he had been within the door of his house; innuendo, that he was arrested upon the steps of the outer door of the said house, and before he the said E. A. had been within the door of his said house. It was objected, that the innuendo introduced a new idea not warranted by the introductory mat
uncertain where Newnham was, it could not be intended to be in any county; and therefore, without an innuendo, he conceived that the breach assigned was ill for uncertainty.
(d) Judgment was arrested on these grounds; but the court, being satisfied that the defend
ant was guilty, gave leave to the prosecutor to exhibit a new information; but the House of Lords saved the prosecutor this trouble, by reversing the judgment of the K. B. without assigning any reason.
(e) 9 East, 83. (f) 1 T. R. 65.
ter, viz. the outer door of his house; but the objection. was not allowed, because the innuendo was unnecessary. And the same rule applies where the innuendo is insensible or repugnant (g).
But if any use be made of the innuendo, it cannot be rejected as surplusage (h); nor can the defect be cured by verdict, for in Griepe's case the court said, a man's meaning, abstracted from the fact, cannot be put in issue.
And if a place generally mentioned by name, as Newnham, be explained by the innuendo to mean a particular place, as Newnham in Devonshire, then though the breach be general, as that the person was not at Newnham, the breach must be taken to refer to Newnham in Devonshire, the last antecedent; and, therefore, if the innuendo be defective, the indictment will be vicious, even after verdict (i).
In alleging perjury to have been committed in an affidavit in any court, &c. the usual form is to state, that the defendant came before the court, and exhibited the affidavit or paper writing, that court having competent authority, &c.; and that he swore falsely such and such things; without adding, that any use was afterwards made of the affidavit, or referring to the files of the court (k). For the guilt of the party who makes the affidavit, cannot depend upon the subsequent use which is made of it. But where the proceeding is under the statute of Elizabeth, by which an action is given to the party injured by the false
(g) Cro. Car. 512.
(k) R. v. Crossley, 7 T. R.
(h) R. v. Griepe, Ld. Ray, 315. R. v. Hawkins, Trem. P. C. 167. R. v. Stone, ib.
oath, it should be shewn, that the affidavit was produced and used against that party (7).
And it need not be alleged where the court was holden when the original application was made, nor when the rule nisi was made, provided the taking of the false oath be alleged with a sufficient venue (m).
The time of taking the false oath need not be stated precisely, unless it be alleged as descriptive of the record. It has been held, that when the indictment has been founded upon perjury committed at the assizes or sittings, the offence may be laid to have been committed either on the first day of the assizes or sittings, or upon the day when the trial really took place (n). When an indictment founded upon an answer to a bill in the Exchequer, alleged that the bill was filed on the first day of December, 1807, and upon the production of the bill it appeared to be entitled generally of the preceding Michaelmas term, the objection on the score of variance was overruled, the day not being alleged as part of the record (0).
5. Assignment of perjury.
The assignment in general consists of express contradictions of the defendant's statement, as explained by the innuendos; and it will be vicious, if it be more particular than the assertion which it is meant to contradict (p). Thus, if the defendant swear that A. B. was at Newnham,
(1) Holt. R. 534. Skinn. 403. Trem. P. C. 136. R. v. Jole, ib. 138. R. v. Brookes, ib. 151. 155.
(m) R. v. Crossley, 7 T. R. 315.
(n) Per Abbott, L. C. J. sittings after Trin. T. 1819. and
see R. v. Hucks. 1 Starkie Rep. 520. and
(0) R. v. Hucks, 1 Starkie R. 521. See Post. tit. Variance, Rastall v. Stratton, 1 H. B. 49. and the notes to the ind. tit. Perjury.
(p) R. v. Griepe, Ld. Ray.
the breach averring that A. B. was not at a particular place mentioned and known by that name, is faulty; for he might have been at Newnham, though not at the Newnham speeified (q). The breach in such case ought to be assigned thus, that A. B. was not at any vill known by the name of Newnham; or thus, was not at Newnham aforesaid, or at any other Newnham (r).
III. Illegal solicitations, attempts, and endeavours.
In this class of offences it is also in general essential to the validity of the indictment, that the particular means and manner should be set out, in order that the court may see that they amount in law to the crime imputed.
The exceptions to this rule consist of cases, where the means are either perfectly indifferent, provided the criminal object be accomplished, or where they are made up of a number of circumstances, which cannot well be described upon the record without the aid of a general term of art.
And 1st. the general rule is, that the means should be set out.
Thus, if words be spoken to a justice of the peace in the execution of his office, the words must be set out as they were spoken (s), and it is not sufficient to aver generally, that the defendant spoke divers scandalous, threatening, and contemptuous words.
So in an indictment under 6 & 7 W. 3. c. 11. for profane cursing and swearing, it was necessary to set out the particular paths and curses; because, as was said in the case of the King (1) v. Sparling, what is a profane
(q) R. v. Griepe, Ld. Ray.
(s) 2 Str. 699:
(t) A general form of conviction is given by the statute 19 G. 2. c. 21. Str. 497.
oath or curse, is a matter of law, and ought not to be left to the judgment of the witness; he may think false evidence is such.
So in an indictment for blasphemous or seditious words; they must be stated, that the court may judge whether they be seditious or blasphemous (u).
And in all indictments or informations for libels, the libel must be set out in the terms in which it was published (r).
And it would be insufficient to aver merely, that the defendant published a libel ad effectum sequentem (y), since the court must judge of the words themselves, and not of the construction which the prosecutor puts upon them. This point was solemnly decided upon the trial of Dr. Sacheverell, for high crimes and misdemeanors, before the House of Lords, upon an impeachment by the House of Commons. Before the opinion of the court had been taken upon the defendant's guilt, a doubt was raised whether the objectionable passages in the sermons which the defendant had preached, and for which he was impeached, should not have been set forth upon the face of the impeachment; and it was proposed to all the judges, whether by the law of England, and constant practice in all prosecutions, by indictment or information, for crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal, must not be expressly specified in such indictment or information?
The judges present unanimously answered the whole of this proposition in the affirmative. But the lords afterwards resolved, that they would determine the impeachment, according to the law of the land, and the law and
(u) Str. 498. 686.
(x) 6 T. R. 162. 1 Ld. Ray. 414. 2 Salk. 417. 3 Mod, 71.
(y) 2 Salk. 417. R. v. Bear, 1 Lord Ray. 414. Holt. R. 348. 350.