passes, and other misdemeanors in the said county, committed by the That John Armstrong late of Appleby in the county aforesaid, yeoman, not having God before his eyes, but being moved and seduced by the instigation of the devil, on the day of in the year of the reign our said sovereign lord George the third, of the united kingdom of Great Britain and Ireland, king, defender of the faith, at the hour of nine in the afternoon of the same day with force and arms at Appleby aforesaid in the county aforesaid, in and upon one George Harrison in the peace of God and of our said lord the king then and there being (the aforesaid George Harrison not having any weapon then drawn, nor the aforesaid George Harrison having first stricken the said John Armstrong) feloniously did make an assault; and that the aforesaid John Armstrong, with a certain drawn sword of the value of five shillings, which he the said John Armstrong in his right hand then and there had and held, the said George Harrison in and upon the right side of the belly near the short ribs of him the said George Harrison, (the aforesaid George Harrison as is aforesaid then and there not having any weapon drawn, nor the aforesaid George Harrison then and there having first stricken the said John Armstrong,) then and there feloniously did stab and thrust, giving unto the said George Harrison then and there with the sword aforesaid, in form aforesaid, in and upon the right side of the belly near the short ribs of him the said George Harrison, one mortal wound of the breadth of one inch and of the depth of nine inches; of which said mortal wound he the said George Harrison then and there instantly died: And so the jurors aforesaid upon their oath aforesaid do say that the said John Armstrong him the said George Harrison on the aforesaid thirtieth day of March in the year aforesaid at Appleby aforesaid in the county aforesaid in manner and form aforesaid feloniously did kill, against the peace of our said lord the now king, his crown and dignity, and against the form of the statute in such case made and provided. Westmorland.] The name of the county must be in the margin, or repeated in the body of the caption. The county which is laid in the margin denotes the county whence the grand jurors come, and the offence must appear to have been committed in that same county; if it be otherwise it will be fatal to the indictment; and à fortiori, if it expressly appear by the indictment that the offence arose in a county, &c. different from that for which the jury was returned. - And the vill or vills, &c. in which the offence is committed must be alleged to be in the county named in the margin; and if no other county be mentioned it may be in comitatu prædicto. In all criminal prosecutions it will not be sufficient to put the county in the margin; for that can only prove the order made by the justices of that county, but it is no argument that the fact was committed in that county. Rex v. Austin, 8 Mod. 309. Fort. 325. In orders the margin is to be considered as part of the order, and a clear plain reference to it is sufficient; but in indictments, the county must be expressed in the body, and a reference to the margin is not sufficient. So ruled in Rer v. Inh. Holbeck in Leeds, Burr. S. C. 198. If a man be stricken in one county and carried into another, the 2 & 3 Ed. 6. indictment shall be found where the death happens. 2 East's P. C. c. 24. 343. If goods be stolen in one county and carried into another, it may be found in either. At the general quarter sessions of the peace.] The court where the indictment is made must be expressed; otherwise the caption is erroneous. Holden at Appleby in and for the county aforesaid.] It must appear where the sessions was held; and that the place where it was held is within the extent of the commission. 1 Hal. 166. 2 Haw. c. 25. $ 118. 2 Hale, 166. Where the caption of the indictment stated the court of quarter R. v. Fearnley, sessions, where such indictment was found, to have been holden 1 T. R. 316. on an impossible day, it was holden to be fatal, The day of in the year of the reign of our 2 Haw. c. 25. sovereign lord George the third.] It hath been adjudged that if the $127. caption of the indictment describe the sessions holden in the time past, and not in the time present; or as holden on such a day in such a year of the king, without ascertaining what king, it is insufficient. But it seems to be agreed that it is sufficient to express the year of the king, without adding that of our Lord. The day.] Figures to express numbers are not allowable in an indictment: but numbers, whether cardinal or ordinal, must be expressed in words. 2 Hale, 170. Or at least in Roman numerals. R. v. Philips. 1 Str. 261. Before J. P. and K. P. esquires, and others, their associates.] 2 Hale, 167. It is not necessary to name all the justices, but only so many as are enabled to hold a sessions, and the rest may be supplied by the words and others their associates. And although no sessions can be holden without one of the 2 Hale, 167. justices being of the quorum, yet in the caption there need not be any mention which of them, or whether any of them, are of the quorum, for it is sufficient if de facto the sessions be holden before him or them that are of the quorum, although not so mentioned, and so is the usual course. And also to hear and determine, &c.] These words are neces- 2 Hale, 166. sary, because without this clause (by the commission) they cannot 1 Str. 442. proceed by indictment. By the oath.] If the caption conclude that it is presented with- 2 Hale, 168. out saying on their oath, it shall be quashed: for their presentment must be upon oath, and so returned. By the oath of· -.] It must name the jurors that presented 2 Hale, 167. the offence; and therefore by the oath of A. B., C. D. and others, is not good; for it may be the presentment was by a less number than 12, or that some one of them was incapacitated who might influence all the rest, as for instance a person outlawed; in which case the indictment may be quashed by plea. Good and lawful men of the county aforesaid.] These words also, 2 Hale, 167. Ld. Hale saith, are necessary. But Mr. Hawkins says, that it is no 2 Haw. c. 25. exception to an indictment found in the superior courts, and that § 17. it hath been often overruled; because all men shall be intended to be honest and lawful till the contrary appear. Sworn and charged to inquire for our said lord the king and for 2 Hale. 167. the body of the county aforesaid.] Though Lord Hale says it 2 Hale, 175. 1 H. 5. c. 5. Addition. Of a corporation sole. Of a corporation aggregate. Of a peer. seems requisite to add this clause; it is holden in R. v. Morgan, 1 Ld. Raym. 710. that it is not necessary. 2. Of the Indictee. It is presented; that John Armstrong, late of Appleby.] The name of the party indicted regularly ought to be inserted, and inserted truly in every indictment. But the inhabitants of a parish may be indicted for not repairing the highway, although no person is particularly named. Wood's Inst. b. 4. c. 5. To prevent the inconvenience of troubling one person for another, it is by 1 H. 5. c. 5. "ordained and established, That in every original writ of actions personal, and appeals, and indictments, in which the exigent shall be awarded, to the names of the defendants in such writs original, appeals and indictments, additions shall be made of their estate or degree, or trade, and of the towns, or hamlets, or places, and the counties, of the which they were, or are, or in which they are or were or may be conversant and if by process upon the said original writs, appeals, or indictments, in the which the said additions be omitted, any outlawries be pronounced, that they be void, frustrate, and holden for none; and that before the outlawries pronounced, the said writs and indictments shall be abated by exception of the party." In which the exigent shall be awarded.] The exigent is a writ whereby the sheriff is commanded to proclaim the party in the county court, in order to his being outlawed. And by these words the act extendeth only to cases where process of outlawry may be awarded; and therefore it extendeth not to an indictment for encroaching on the highway, because in that case process of outlawry lieth not, but a distress. Cro. Eliz. 148. But it extends to any indictment upon which process of outlawry lies, as well as to an appeal. 2 Haw. c. 25. § 70. To the names of the defendants.] Regularly by the common law, every natural man, having no name of dignity, ought to be named in all originals and other suits by his christian name and surname; and that, before this act, sufficed; but if he had a name of inferior dignity (as knight or banneret) he ought to be named by his christian name and surname, and by the addition of his name of dignity. 2 Inst. 655. It is not necessary that there should be any addition to the name of a prosecutor or prosecutrix in an indictment. Sull's case, 2 Leach, 861: If there be a corporation of one sole person that hath a fee simple, and may have a writ of right, he may be named by the common law by his christian name without any surname, as John bishop of P. 2 Inst. 666. If it be a corporation aggregate of many able persons, as mayor and commonalty, dean and chapter; the mayor or dean need not to be named by his christian name, because that such a corporation standeth in lieu both of the christian name and surname. 2 Inst. 666. A duke, marquis, earl, viscount, or baron, might by the common law be named by his christian name, and by the name of his dignity; as John duke of M. 2 Inst. 666. According to some authorities, the defendant was bound to an- Surname. swer to an indictment for felony, though his name of baptism was mistaken. 2 Hale, 238. 1 Stark. C. P. 42. According to others, no advantage could be taken of a mistake in the surname, Staunf. l. 3. c. 18. f. 182., though there might of mistake in the christian name. 2 Haw. c. 25. § 68. 69. 1 Stark. C. P. 43. One indicted for a misdemeanor may plead that his name is Shakespeare, and not Shakepeare, for the latter is not idem sonans R. v. Shakespeare, 10 East. 83. A man may be known by two surnames, as J. S. but not by two christian names, as J. S. and W. S. tit. Misnom. pl. 47. and J. D., Bro. Abr. But the mistake in the christian name is pleadable, and the 2 Hale, 176. party shall be dismissed from that indictment. But the safest way is to allow his plea of misnomer, both as to 2 Hale, 176. his surname and as to his christian name; for he that pleads misnomer of either must in the same plea set forth what his true name is, and then he concludes himself; and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. It is said that no person indieted can take any advantage of a mistaken surname in the indictment, notwithstanding such surname hath no manner of affinity with its true one, and he was never known by it. 2 Haw. c. 25. § 68. et seq. 2 Hale, 176. In trespass against several, one cannot plead the misnomer of his companion. Bro. Abr. tit. Misnom. pl. 10. 59. Additions shall be made.] The addition, as well of the estate, Addition; degree, or mystery, as the town, hamlet, or place, ought by alias dictus. force of this act to be alleged in the first name; for an addition after the alias dictus is ill; as, for instance, where the indictment was against W. R. otherwise called W. R. of H.' for without the alias dictus there is no addition of the vill; and if the party be not sufficiently named in the first part, the alias cannot aid or help it. 2 Inst. 669. 3 Salk. 20. Vide post.p. 35. Where there are several defendants of different names and the Several defendsame addition, it is safest to repeat the addition after each of ants; how their their names, applying it particularly to every one of them. 2 Haw. additions shall c. 23. § 106. Where a father hath the same name and the same addition with a defendant, being his son, the action is abateable, unless it add the addition of the younger to the other additions; but where the father is the defendant, it is said that there is no need of the addition of the elder. 2 Haw. c. 23. § 106. So if the son be in custodia mareschalli, and so declared against, the count may be good without the addition of younger, unless the father of the same name and additions be also in the custody of the marshal; for in these cases, a distinction must be made by some farther description. 2 Haw. c. 23. § 106. Lepiot v. Browne, 1 Salk. 7. be set forth. Father and son. Estate or degree.] In legal understanding these two words are Dignities. of one signification, and do extend to persons of nobility, of dignity, and under the degree of nobility and dignity, as yeomen, Baronet, Esquire. Foreign dignities. Peers, not of parliament. Clerk. Gentry, Yeomen. Laboure. &c. and do extend as well to the clergy as to the temporalty, and to graduates and degrees in universities in any kind of profession. 2 Inst. 666. In the name of dignities, my Lord Coke includes Baronets: and in Cro. Car. 371. is a case where sir H. F. baronet was indicted by the name of sir H. F. knight: being arraigned, he said he was never knighted; and the indictment was held not sufficient : he was then indicted de novo, by the name of sir H. F. baronet, and pleaded not guilty: and no objection made to the addition of baronet. Hence it seems to be a good name of addition. in Esquire is a good addition. And the eldest sons of peers, the lifetime of their fathers, though frequently titular lords, yet are only esquires. So also the younger sons of peers, and their eldest sons in perpetual succession. Also the eldest sons of knights, and their eldest sons. There are also esquires by virtue of their office, as justices of the peace, and others who bear any office of trust under the crown. (a) 1 Blac. Com. 405. And it seems clear, that no one can be well described by the addition of a temporal dignity of any other nation besides our own; because no such dignity can give a man an higher title here than that of an esquire. 2 Haw. c. 23. § 109. All dukes, marquises, earls, viscounts, and barons of other nations, or which are not lords of the parliaments of England, are named armigeri, if they be no knights; and if knights, then they are named milites. 2 Inst. 67. Clerk is a good addition of a clergyman; and he that hath taken any degree in either of the universities may be named by that degree. 2 Inst. 668. I Blac. Com. 405. : Gentleman and gentlewoman are good additions. And as for gentlemen, says sir Thomas Smith, they be made good cheap in this kingdom for whosoever studieth the laws of the realm, who studieth in the universities, who professes liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called Mr. such-a-one, and shall be taken for a gentleman. 1 Blac. Com. 406. Yeoman is a good addition; under which denomination are comprehended those who have freehold lands of 40s. a-year, and thereby heretofore could serve upon juries, and can yet vote for knights of the shire, and do any other act where the law requires one that is a good and lawful man. 1 Blac. Com. 406. This degree is applied only to the man, and not to the woman. 2 Inst. 668. Labourer is a good addition, and in common use; for a trader may be sued either by his degree or mystery. 8 Mod. 51. 52. 1 Str. 556. 2 Str. 816. 2 Ld. Raym. 1541. But la (a) Mr. Christian, in his Notes to Blackstone, says, "I cannot but think that this is too extensive a description of an esquire, for it would bestow that honour upon every exciseman and custom-house officer; it probably ought to be limited to those only who bear an office of trust under the crown, and who are styled esquires by the king in their commissions and appointments; and all I conceive who are once honoured by the king with the title of esquire, have a right to that distinction for life." 1 Blac. Com. 406. n. (19.) |