PLEADING AND EVIDENCE, GENERALLY.

PART I.

PLEADING, GENERALLY.

CHAPTER I.

Indictment.

SECT. 1. What, and in what cases it lies.

2. Form of it.

3. Joinder of two or more Defendants in one Indictment.

4. Joinder of Several offences in one Indictment.

5. Within what time the Bill must be preferred.

e. How found.

7. In what cases quashed.

SECT. 1.

Indictment, what, and in what cases it lies.

*AN Indictment is a written accusation of one or more persons of a crime, preferred to, and presented upon oath, by a grand jury.

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It lies for all treasons and felonies, for misprisions of treason and felony, and for all misdemeanors of a public nature at common law. If a statute prohibit a matter of public grievance, or command a matter of public convenience (such as the repairing of highways, or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding. And if the statute specify a mode of proceeding different from that by indictment; then, if the matter were already an indictable offence at common law, and the statute introduced merely a different mode of prosecution and punishment, the prosecutor *has still the option of proceeding by indictment at common law, or by the mode pointed out by the statute; 2 Bur. 799. 2 Salk. 460; or even if a statute prohibit, under a penalty, an act which was before lawful, and in a subsequent substantive clause ordain a mode of proceeding for the penalty different from that by indictment, the prosecutor may notwithstanding proceed by indictment upon the prohibitory clause, as for a misdemeanor at common law; or he may proceed in the manner pointed out by the statute, at his option; 2 Hale 171. and see 2 Str. 1146; but if the manner of proceeding for the penalty, be contained in the same clause which prohibits the act, the mode of proceeding given by the statute must be pursued, and no other. 2 Str. 679. Where a statute enabled the King in council to make certain orders relating to quarantine, a disobedience of these orders was holden to be a misdemeanor at common law, and indictable as such. 4 T, R. 202. So,

where a corporation were authorised by a public statute to make a towing path on the side of a river, it was holden to be a misdemeanor at common law to obstruct the corporation in the execution of the powers given them by the statute, and of course indictable. 2 Doug. 441. See Com. Dig. Indictment, D.

But an indictment will not lie for a mere private injury against an individual as for enticing away his apprentice; i Salk. 380; entering his close, digging the ground, erecting a shed thereon, expelling him and keeping him out of possession; 3 Bur. 1698. 1731; pulling the thatch off a dwelling house of which he was in peaceable possession; 3 Bur. 1706. 1707; or the like: the remedy for injuries of this discription is by action only. So, an indictment will not lie for an act prohibited by a private statute, which tends merely to the damage of a particular individual; 1 Sid. 208, 209; nor will it lie for a mere breach of the bye laws or customs of a corporation. 4 T. R. 777. 3 Salk. 188. See Com. Dig, Indictment, E.

SECT. 2.

The form of an Indictment.

An Indictment consists of three parts: the commencement, the statement, and the conclusion. We shall treat of each of these, in its order.

1. The Commencement.

THE Conmencement of every indictment, is thus :-" Middlesex, to wit :-The Jurors for our Lord the King, upon their oath present that," &c. [so proceeding to state the offence, for which the defendant is to be pros

ecuted.]

[3] *Venue.] The venue in the margin, is the only part of the commencement of an indictment, that requires attention. The general rule upon the subject is, that the venue in the margin should be the county in which the offence was committed; See 2 Hale, 163; or if the jurisdiction of the court in which the bill of indictment is to be preferred, extend only to part of the county, the venue in the margin should be co-extensive with the jurisdiction of the court; that is, it should be descriptive of that part of the county to which the jurisdiction of the court is confined, and the offence must have been committed within part of the county so described. This is the general rule of the common law; but several exceptions have been made to it by statute.

1. In Indictments for offences against the Black Act (9 G. 1. c. 22) the venue may be laid in any county, 9 G. 1. c. 22. s. 14, at the option of the prosecutor. 2 W. Bl. 723.

2. In indictments upon stat. 13 G. 3. c. 84. for felony in destroying turnpike gates, &c. the venue may be laid in any adjacent county, 13 G. 3. c. 84. s. 42, or in the county in which the offence was committed.

3. In indictments upon stat. 26 G. 2. c. 19. for plundering ships wrecked, the venue may be laid either in the county where the offence was committed, or in the next adjoining county. 26 G. 2. c. 19. s. 8.

4. In indictments for extortion, the venue may be laid in any county. 31 El. c. 5. s. 4.

5. In indictments for assaults upon officers of the excise or customs, in the execution of their duties, the venue may be laid in any county. 9 G. 2. c. 35. s. 26.

6. In indictments for offences against statutes relating to the stamp duties, the venue may be laid either in the county where the offence was committed, or in the county in which the parties accused, or any of them, shall have been apprehended. 53 G. 3. c. 108.

7. In indictments for bigamy, the venue may be laid either in the county where the offender was apprehended, 1 Jac. 1. c. 11. s. 1. or in the County in which the second marriage took place.

8. In indictments for felonies, or other offences committed in Wales, the venue may be laid in the next adjacent English county; 26 H. 8. c. 6. s. 6. 34 & 35 H. 8. c. 26 s. 84; namely, in the county of Salop, if the offence were committed in North Wales, or in the county of Hereford if the offence were committed in South Wales. See 2 M. & S. 270. and 1 Leach 125. The same provision is contained in stat. 26 G. 2. c. 19, as to the offence of plundering wrecks, if the offence be committed in Wales. s. 8. It is usual in these cases to state the venue in the margin thus: Salop, being the next adjoining shire within that part of the united kingdom of Great Britain and Ireland, called England (where the King's writ runneth) to the county of Anglesea in Wales, to wit."

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*9. In indictments for high treason or misprision of treason committed out of the realm, the venue may be laid in Middlesex,

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if the trial is to be in the court of King's Bench; or in such shire as the King shall appoint, if he appoint a commission to try the offender. 35 H. 8 c. 2. s. 1. Treasons committed in Ireland or Scotland, since the unions, and treasons committed in Wales, are not within the meaning of this act ; but treasons committed in the Isles of Man, Guernsey, Jersey, Sark and Alderney, or in our foreign plantations, (which although parts of the dominions of the crown of England are not parts of the realm, see 3 Inst. 11. 111. 4 Inst. 124) are. So, in indictments for murder committed out of the King's dominions, the venue may be laid in any county the King shall think fit to appoint; 33. H. 8. c. 23. s. 1. See 1 Taunt. 26; and the same as to accessaries before the fact to such murders. 43 G. 3. c. 113. s. 6. So, in indictments for burning or destroying the King's ships, magazines, &c. out of the realm, the venue may be laid in any county within the realm. 12 G. 3. c. 24. s. 2. So, in indictments for robberies and other capital crimes committed in Newfoundland, the venue may be laid in any county in England. 10 & 11 W. 3. c. 25. s. 13.

10. Treasons, felonies, robberies, murders and confederacies, committed upon the high seas, within the jurisdiction of the Admiral, shall be inquired of, &c. in such shire of the realm as shall be limited for that purpose by the King's commission. 28 H. 8. c. 15. s. 1. and see 45 G. 3. c. 72. s. 114. Acts of hostillity by a subject of this realm against a subject at sea, under colour of a foreign commission, 11 & 12 W. 3. c. 7. s. 8. 18 G. 2. c. 30, s. 1, forcibly boarding a merchant ship, and throwing over or destroying the goods, 8 G. 1. c. 24. s. 1. trading with pirates, or fitting out a vessel for that purpose, 8 G. 1. c. 24. s. 1, master or seamen running away with the ship, goods, &c. 11 & 12 W. 3. c. 7. s. 9, burning or destroying a ship, to the prejudice of the owner and freighter, 1 Ann st. 2.c. 9. s. 4. 43 G. 3. c. 113. s. 3, and the offence of accessaries before the fact to the same, 43 G. 3. c. 113. s. 5, and maliciously burning or setting fire to a ship or vessel, or detròying or damaging her by other means: 33 G. 3. c. 67. s. 5: all these offences, if committed upon the high seas, must be enquired of in the same manner; as also the offence of accessary before or after the fact, on land or at sea, to piracy. 11 & 12 W. 3. c. 7. s. 10. It may be necessary to mention here, that rivers to the furthest point of land next the sea, creeks and arms of the sea