39 G. 5. c. 27.

Felonies on na◄ vigations may be prosecuted in any county through which the navigation

passes.

directed an acquittal upon the authority of a case reserved from the western circuit, and cited by Campbell (Amicus Curiæ,) in which the judges held (notwithstanding the doubt expressed by Lawrence J. in R. v. Phillips, ante,) that it is necessary in every indictment to state a parish or vill within the county, and that upon proof that there is no such parish within the county as is laid in the indictment the prisoner must be acquitted.

If the offence be laid in London generally, it will be too general, because of its largeness: there must be some parish stated, with some addition, (as St. Mary, Wood Street,) but the ward need not be stated, because a ward is in London as a hundred is in a county, and the hundred need not be stated. 2 Haw. c. 23. § 92. Sid. 325. Mackalley's Case, 9 Rep. 66. b.

The mere name of the place alone without the description will be bad: as "late of W. in the county of B. with force and arms at the parish aforesaid" is bad: W. not having been described as a parish; and no other parish having been before laid. R. v. Matthew, 5 T. R. 162.

By stat. 59 G. 3. c. 27. after reciting, "that whereas felonies "are frequently committed on board vessels employed in car"rying and conveying goods, wares, and merchandise in or upon "canals, navigable rivers, and inland navigations, in various parts "of the united kingdom, as well by breaking open the casks "and packages containing such goods, wares, and merchandise, "as in various other ways: and whereas such felonies frequently "remain undetected until the arrival of such vessels at the places "of their destination; and in consequence of such canals and na"vigations passing through several counties forming the boundaries "of counties on each side or bank, it can seldom be known within "what county such felonies may have been actually committed, "and offenders frequently escape unpunished from defect of "proof that the felony with which they are charged was actually "committed within the county in which such offenders may be in"dicted:" for remedy thereof it is enacted, "that from and after "the passing of this act, in any indictment for any felony com"mitted on board any barge, boat, trow, or other vessel whatever, "employed or used in carrying or conveying goods, wares, and "merchandise, or in which any such goods, wares, or merchan"dise shall be, in or upon any canal, navigable river or inland "navigation, in any part of the united kingdom of Great Britain and Ireland, it shall be sufficient to allege that such felony "was committed within any county or city through any part "whereof such boat, barge, trow, or other vessel shall have passed "in the course of the voyage or journey during which such felony "shall have been committed; and in cases wherein the sides or "banks of any navigable river, canal, or inland navigation, or the "centre thereof, shall constitute the boundary of any two counties "or cities, it shall be sufficient to allege that such felony was com"mitted in either of the said counties or cities through which or

any part thereof such boat, barge, trow, or other vessel shall "have passed in the course of the voyage or journey during "which such felony shall have been committed; and every such "felony shall and may be inquired of, tried, and determined "in the county or city within which the same felony shall be so "alleged to have been committed; and all and every person and

persons who shall be convicted of any such felony so to be 59 G.3. c. 27. inquired of, tried, and determined as aforesaid, shall be subject Persons so tried " and liable to all such pains of death, and other pains, penalties and convicted to "and forfeitures, as such person or persons convicted of such be subject to "felony would have been subject and liable to in case such like pains and "felony had been inquired of, tried, and determined in the county tried in the penalties as if "in which the same felony was actually committed; any law, county where "statute, or usage to the contrary in anywise notwithstand- fact committed. "ing: provided always, that nothing herein contained shall "extend, or be construed to extend, to affect the jurisdiction "of the high court of admiralty, or of any commission for "the trial of offences under an act passed in the twenty-eighth

year of the reign of king Henry the eighth, intituled For 28 H. 8. c. 15. "Pirates."

By stat. 59 G. 3. c. 96. after reciting, that "whereas felonies 59 G. 5. c. 96. " are frequently committed on stage coaches, stage waggons, "stage carts, and other such carriages, employed in carrying and "conveying goods, wares, and merchandise, travelling on the "several highways in various parts of the united kingdom, as "well by breaking open the casks and packages containing "such goods, wares, and merchandise, as in various other ways: " and whereas such felonies frequently remain undetected until "the arrival of such carriages at the place of their destination, " and in consequence of such highways leading through several "counties, it can seldom be known within what county such felo"nies may have been actually committed, and offenders fre"quently escape unpunished from defect of proof that the felony "with which they are charged was actually committed within the "county in which such offenders may be indicted;" for remedy thereof, it is enacted, "that from and after the passing of this act, Indictments for "in any indictment for any felony committed on any stage felonies com"coach, stage waggon, stage cart, or other such carriage what- mitted on stage "ever, employed or used in carrying or conveying goods, wares, how to be laid. coaches, &c. " and merchandise, or in which any such goods, wares, or mer"chandise shall be, in or upon any highway in any part of the "united kingdom of Great Britain and Ireland, it shall be suffi"cient to allege that such felony was committed within any "county or city through any part whereof such stage coach, stage waggon, stage cart, or other such carriage shall have passed in "the course of the journey during which such felony shall have "been committed; and in all cases where any highway shall form "the boundary of any two counties, it shall be sufficient to " allege, that such felony committed as aforesaid was committed " in either of the said counties through which or any part whereof "such stage coach, stage waggon, stage cart, or other such car"riage shall have passed in the course of the journey during "which such felony shall have been committed; and every such "felony shall and may be inquired of, tried, and determined in "the county or city within which the same felony shall be so "alleged to have been committed; and all and every person and "persons who shall be convicted of any such felony so to be enquired of, tried, and determined as aforesaid, shall be subject " and liable to all such pains of death, and other pains, penalties, " and forfeitures, as such person or persons convicted of such felony would have been subject and liable to, in case such

46

66

How indictments shall be

laid for felonies committed on the boundaries of counties.

Act of parlia

ment.

"felony had been inquired of, tried, and determined in the "county in which the same felony was actually committed."

66

66

66

2.And whereas felonies are sometimes committed on or so close to the boundaries of two or more counties, that the "offenders escape unpunished from the defect of proof, that the felony with which they are charged was actually committed "within the county in which such offenders may be indicted;" it is therefore enacted, "that from and after the passing of this act, in any indictment for any felony committed on the boundary or boundaries of two or more counties, or within the dis"tance of five hundred yards of any such boundary or bound"aries, it shall be sufficient to allege that such felony was com"mitted in either or any of the said counties; and every such felony shall and may be inquired of, tried and determined in "the county within which the same felony shall be so alleged to "have been committed; and all and every person and persons "who shall be convicted of any such felony so to be inquired of, "tried, and determined as aforesaid, shall be subject and liable to "all such pains of death, and other pains, penalties, and forfei"tures, as such person or persons so convicted of such felony "would have been subject and liable to, in case such felony had "been inquired of, tried, and determined in the county in "which the same felony was actually committed."

5. The Description of the Indictor, or Person indicting. In and upon one George Harrison.] Wherever the person injured is known to the jurors, his name ought to be put in the indictment. 2 Haw. c. 25. § 71.

But if they know not his name, an indictment for the murder of a person unknown, or for stealing the goods of a person unknown, is good. 2 Hale, 181.

Also there is no need of an addition of the person upon whom the offence is committed, unless there be a plurality of persons of the same name; neither then is it essential to the indictment, though sometimes it may be convenient for distinction sake to add it. 2 Hale, 182.

In the peace of God and of our said lord the king then and there being.] It is usual to allege this, but not necessary, and possibly not true, for he might be breaking the peace at the time. 2 Hale, 186.

6. The Description of the Offence.

The aforesaid George Harrison not having any weapon then drawn, nor the aforesaid George Harrison having first stricken the said John Armstrong.] An indictment grounded upon an offence made by act of parliament must by express words bring the offence within the substantial description made in the act of parliament; and those circumstances mentioned in the statute to make up the offence shall not be supplied by the general conclusion against the form of the statute. 2 Hale, 170.

And so it is, if an act of parliament oust clergy in certain cases, as murder of malice aforethought, robbery in or near the highway, though the offences themselves were at common law; yet because at common law within clergy, they shall not be ousted out of

clergy, though convicted, unless these circumstances, as of malice aforethought, or near the highway be expressed in the indictment. 2 Hale, 170.

But there is no necessity in an indictment on a public statute to recite such statute; for the judges are bound ex officio to take notice of all public statutes. 2 Haw. c. 25. § 100.

Although the indictment need not recite a general penal statute, yet it must bring the fact within the express prohibition of the statute, otherwise the conclusion contra formam statuti, and the implication thereof will not aid the indictment, but it will be insufficient. 2 Hale, 192.

Yet, if the prosecutor take upon him to recite it, and materially Varying from vary from a substantial part of the purview of the statute, and the words of conclude against the form of the statute aforesaid, he vitiates the the statute. indictment. 2 Haw. c. 25. § 100.

Also it seems to be generally agreed that a misrecital of the place or day at which the parliament was holden vitiates an indictment. 2 Haw. c. 25. § 104.

And it hath been adjudged that a misrecital of the title of a statute is fatal. 2 Haw. c. 25. § 101.

There is no need to allege in an indictment that the defendant is not within the benefit of the provisoes of the statute; although the same may be necessary in a conviction: for since no plea can be admitted to a conviction, and the defendant can have no remedy against it, but from an exception to some defect appearing in the face of it, and all the proceedings are in a summary manner, it is but reasonable that such a conviction should have the highest certainty. 2 Haw. c. 25. § 113. 2 Hale, 170. 171.

And even in a conviction, where the benefit is given by a proviso in the statute subsequent to the enacting clause, it is not necessary to negative the benefit. 2 Str. 1101.

Feloniously did make an assault.] There are several words of Feloniously. art which the law hath appropriated for the description of the offence, which no circumlocution will supply, as feloniously, in the indictment of any felony; burglariously in an indictment of burglary; and the like. 2 Hale, 184.

And if a man be indicted that he stole, and it is not said feloni

ously, this indictment imports but a trespass. 2 Hale, 172.

With a certain sword drawn.] Yet if the party were killed with Weapon. another weapon, it maintains the indictment; but if it were with another kind of death, as poisoning or strangling, it doth not maintain the indictment upon evidence. 2 Hale, 185.

Of the value of five shillings.] Regularly it ought to set forth. Its value. the price of the sword or weapon, or else say of no value for the weapon is a deodand forfeited to the king, and the township shall be charged for the value, if delivered to them; but this seems not to be essential to the indictment. 2 Hale, 185.

Which he the said John Armstrong in his right hand then and The hand in there had and held.] It must shew in what hand he held his sword, which it was.' 2 Hale, 185.

In and upon the right side of the belly near the short ribs of The manner of him the said George Harrison.] There must be a certainty of the offence. the offence committed, and nothing material shall be taken by intendment or implication; but the special manner of the whole fact ought to be set forth with certainty. 2 Haw. c. 25. § 57.

In the case of murder it ought to shew in what part of the body the person was wounded; and therefore if it be on his arm or hand, or side, without saying whether right or left, it is not good. 2 Hale, 185.

In stating the substance of the fact, there must be no repugnancy in the material part; but if there be enough well laid to maintain the indictment, judgment may be given on so much as is good. 2 Haw. c. 25. § 55. et seq. Reg. v. Ingram & ux. 1 Salk. 384. Benfield v. Saunders, 2 Burr. 985.

The offence must not be laid disjunctively, as he murdered or caused to be murdered. 2 Haw. c. 25. § 58.

If theft be alleged in any thing, the indictment must set forth the value of the thing stolen, that it may appear whether it be grand or petit larceny. 2 Hale, 183.

In like manner, an indictment that the defendant took and carried away such a person's goods and chattels, without shewing what in certain, as one horse, one cow, is not good. 2 Hale, 182.

So 20 sheep and ewes is bad; it ought to be how many of each 2 Hale, 183.

sort.

The owner should be named: and if the thing stolen be a living thing, it should be named by its name only; if it be a dead thing, it should also be laid bona et catalla. Lamb. b. 4. c. 5. 476.

On an indictment, laying the property in persons by name, and in another count in persons unknown, the evidence failed in shewing such ownership; but it appeared that it might have been easily ascertained; Ld. C. B. Richards would not allow the prosecutor to have recourse to the second count, and directed an acquittal. His Lordship cited a case at Chester before Ld. Kenyon, where the property was laid as belonging to a person unknown; but upon the trial, it was clear that the owner was known, and might easily have been ascertained by the prosecutor. Lord Kenyon directed an acquittal.

As to the value, see tit. Larceng, § 1. post.

An indictment that the defendant is a common highwayman, a common defamer, a common disturber of the peace, and the like, is not good; because it is too general, and contains not the particular matter wherein the offence was committed. 2 Hale, 182.

In like manner an indictment for divers scandalous, threatening, and contemptuous words, spoken of a justice of the peace, is not good; it ought to set forth the words in special.

2 Str. 699.

But in certain excepted cases, it is sufficient to state generally that the defendant is so and so, without specifying any particular instances; as in a charge of being a common scold, a common barrator, or of keeping a common bawdy-house. 2 Hawk. c. 25. § 57.59.

An indictment for disobeying an order of justice must find positively that such an order was made, and not by way of recital, that whereas 2 Ld. Raym. 1363.

But in an indictment on a conviction, it is not necessary to set forth the conviction at large, but only shortly that such a one was before such and such justices convicted, according to the