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CHAP. XII.

Caption of an Indictment.

WHERE an inferior court, in obedience to a writ of certiorari from the King's Bench, transmits the indictment to the Crown Office, it is accompanied with a formal history of the proceeding, describing the court before which the indictment was found, the jurors by whom it was found, and the time and place where it was found. This instrument, termed a schedule, is annexed to the indictment, and both are sent to the Crown Office.

The history of the proceedings, as copied or extracted from the schedule, is called the caption, and is entered of record immediately before the indictment.

Lord Hale gives a precedent of a caption in the following form (a):

"Norfolk.-At a general sessions of the peace holden at S. in the county aforesaid, on the fifth day of October, in the twenty-fifth year of the reign, &c. before A., B., C., D., and their fellows, justices of our said lord the king, assigned to keep the peace of our said lord the king, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the same county committed, by the oath of E., F., G., H., &c. good and lawful men of the said county, sworn and charged to inquire for our said lord the king, and the body of the said county it is presented, &c."

(a) 2 Hale, 165.

In the first place it must appear that the court had jurisdiction (b).

If, therefore, the caption merely set forth that it was holden before J. S. steward, without shewing to whom he is steward, or in what court, or that an inquest of death upon view of the body before J. S. or without adding that he was a coroner, and shewing also that he was a coroner for the district in which the inquest was taken it will be insufficient (c). But it would be sufficient to say coroner in the county, for the court will intend that he is coroner for the whole county (d).

It has been holden sufficient to allege the indictment to have been taken at a general sessions of the peace of such a county (e), but insufficient to allege it to have been taken at a general sessions holden in such a county instead of saying for such county (ƒ).

The caption ought to notice the authority of the justices to hear and determine divers felonies, &c. (g).

It was formerly deemed necessary to describe the justices either as the king's justices or as justices of the public peace, but it has since been holden to be sufficient to describe them as justices of the peace (h).

But it is not sufficient to describe them generally as justices of the peace, &c. without either naming them or shewing for what division they are justices; and where in their description as justices assigned to keep the peace, &c. the word assigned was omitted, the caption was

(b) Ld. Ray. 710. 22 E. 4. 12 Summ. 207. Cro. Eliz. 193. 2 Roll. 82. Plow. 76, 77.

4 Co. 41..

(c) 2 Haw. c. 25. s. 119. (d) Ib.

(e) 1 Sid. 247.

(f) 1 Keb. 329. 668. 1

Lev. 304. 2 Keb. 133. cont. 1 Keb. 635. Qu. and see 2 Haw. c. 25; s. 120. 2 Salk. 473. 1 Vent. 37.

(g) Str. 442. 2 Haw. c. 25. s. 121. 2 Hale, 166.

(h) 2 Haw. c. 25. s. 122.

holden to be defective (i). But it is unnecessary to allege that the justices of the general quarter sessions were of the quorum (k).

It is a general rule, that the title of their authority should be set forth, as that they were justices of the peace, &c. justices of gaol delivery, &c. (1).

If a session be holden by virtue of several commissions, as of gaol delivery, oyer and terminer, and the peace, and the record be made up as upon all three commissions, the caption will be good, if the justices had authority to take the indictment by one of those commissions though not by the others (m).

But a caption setting forth that the indictment was taken ad magnam curiam cum letá tentam is vicious, though ad magnam curiam et ad letam would be sufficient, for cum letá does not describe any court possessing jurisdiction. So it would be sufficient to allege that it was taken at a court leet, holden with a court baron; but it would be otherwise, if both courts had jurisdiction and proceeded in different ways (n).

The caption of an indictment at a court leet, need not shew how the court was constituted, whether by grant or prescription; but this appears to be necessary where the indictment has been taken by virtue of a special commission (o).

The justices' names should be set out, and though it is not necessary to mention all, yet so many should be named as are enabled, by their commission, to take an indictment (p). But though no sessions can be held unless before one of the quorum, it is unnecessary to

(i) 1 Saund. 263. But see

2 Barnard, 383.

(k) 2 Haw. c. 25. s. 123.

(4) 2 Hale, 166.

(m) 2 Hale, 166. 9 H. 7. 9.

(n) 1 Salk. 195. 2 Haw. c. 25. s. 124.

(0) See the Caption, Fost. 3. (p) 2 Hale, 166.

state that any were of the quorum (9). But this is doubted by Lord Hale, where an act expressly requires, that the offence shall be heard and determined before two justices of the peace, one of whom is of the quorum (r).

Description of the jurors.

The caption must further shew, that the indictment was found by twelve jurors of the county, city, or place, for which the court was holden (s). The precedent cited from Lord Hale, states the names of the jurors; but though it certainly is necessary that the names of the jurors should be returned in the schedule, yet in making up the record in the King's Bench, it has been the constant practice in the Crown Office to omit the names of the jurors in the caption (t). And it has been solemnly decided, that it is unnecessary to insert their names in the caption (u), though this was formerly doubted (x); but the caption must shew, that the offence was presented by twelve jurors (y). It should appear that they were sworn and charged, but the omission of the latter word will not be fatal (2). It has been holden necessary to allege, that they were then and there sworn and (a) charged, and for what county or division (b). And it must appear, that they acted under the obligation of an oath; and, therefore, the caption should not only allege, that they were sworn (c), but also that they made their

(q) 2 Hale, 167. See 26 G. 2. c. 27.

(r) 2 Hale, 167.

(s) Ld. Ray. 434. 2 Hale, 167. 2 Keb. 160. 3 Keb. 807. (t) 1 Saund. 216. n. 1. (u) Aylett's case in the House of Lords, July 6, 1786, R. v. Atkinson, 1 Saund. 248. n. 1.

Ib. 249. n. 1. 4 East, 176. in notes.

(x) 2 Haw. c. 25. s. 126. (y) Cro. Eliz. 654. 2 Hale, 167. 1 Saund. 248. n. 1. (z) 2 Haw. c. 25. s. 126.

(a) Ib.
(b) lb.

(c) 1 Sid. 140. 1 Keb. 498. 2 Haw. c. 25. s. 126.

presentment upon oath; but it has been holden, in some instances, that the words, " present upon their oath," supply the place of the words "sworn and charged" (d); and, probably, this would now be holden sufficient in all cases. It is unnecessary to describe them as probi et legales homines, for this is a necessary intendment of law.

The time when.

The caption must recite the day and year when the court was holden, and usually alleges the indictment to have been then taken in the present tense (e). If the indictment be taken at an adjourned sessions, it should be shewn when the original sessions began (f); and if an improper, uncertain, or impossible day be laid, it will vitiate the indictment (g). As where the sessions were alleged to have been holden ad Festum Epiphanii instead of Epiphaniæ, for Epiphanius is a saint in the Roman calendar; and, therefore, it appeared, that the sessions were holden. at a time different from that appointed by the statute (h). The place of taking the indictment.

It must be shewn, that the indictment was taken at some place within the county or division for which the jurors are returned; for otherwise they would have no authority to inquire (i). It is usual, as in the above precedent, to state in the margent of the caption, the county, city, or division, for which the jurors inquire; but this is not of necessity any part of the caption (). But if the county or division be so named in the margent, it is not

(d) 1, Keb. 629. 2 Haw. c. 25. s. 126.

(e) 4 Co. 48. Yet qu. whether this be necessary; see 1 T. R. 316. and R. v. Hall, 1 T. R. 320.

(f) Str. 865.

(g) 1 T. R. 316. 2 Keb. 582.
(h) R. v. Warre, Str. 698.
(i) See chap. 1. and 2 Hale,

166.

(k) 2 Hale, 166,