form of the statute, and thereupon a warrant was issued, &c.

2 Ld. Raym. 1196.

Then and there did feloniously stab and thrust.] In an indict- Adtunc & ment it is best, and often necessary, to repeat the time and place ibidem. to the several parts of the fact. 2 Hale, 178.

Thus in an indictment of murder or manslaughter, as well the day and place of the stroke or other act done as of the death must be expressed; the former, because the escheat or forfeiture of lands relate thereto; the latter, because it must appear that the death was within the year and day after the stroke. 2 Hale, 179.

One mortal wound of the breadth of one inch, and of the depth of nine inches.] Regularly the length and depth of the wound is to be shewn, but this is not necessary in all cases; as where a limb is cut off, so it may be also a dry blow. 2 Hale, 186.

But though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, and it is fit to be done as near the truth as may be, yet if upon evidence it appear to be another kind of wound in another place, if the party died of it, it is sufficient to maintain the indictment. 2 Hale, 186. In the construction however of statutes that take away the benefit of clergy, the law requires that the fact laid in the indictment should be strictly proved. 2 East's P. C. 647. R. v. Pike, 1 Leach, 317.

7. (a.) The Conclusion of an Indictment at Common Law.

Against the peace of our said lord the king.] An indictment, Contra pacem, without concluding against the peace, is insufficient, though it be but for using a trade not having been an apprentice; for every offence against the statute is against the peace, and ought so to be laid. 2 Hale, 188.

Also an indictment that concludes against the peace, and saith not of our lord the king, is insufficient. 2 Hale, 188.

It seems domini regis, in all indictments; and the king's name must be of that king in whose time the offence was committed; and if the offence be begun under one king, and continued under his successor, and it be laid against the peace of both kings, it seems good: but if it conclude only against the peace of the successor, it is bad, as the commencement is shewn, to have been under the first; and it may be laid against his peace alone. With respect to the omission of the words " in contempt of the king," there are precedents both ways. 2 Haw. c. 25. § 92. 93. 95. 2 Hale, 187. 188. Yelv. 66.

An indictment for an offence committed in the time of the late king, and concluding against the peace of the present king, is not sufficient. R. v. Lookup, 3 Burr. 1901.

Thomas Cook was convicted before Thomson B. at Lancaster

Our lord the

king.

R. v. Cook,

before all the

Spring Assizes, 1810, upon an indictment for stealing bank notes, against the form of the statute in such case made and provided." judges, It was moved in arrest of judgment, that the indictment was May, 1810. insufficient for want of charging the offence to have been com- MS. C. C. R. mitted against the peace. 2 Haw. c. 25. § 92. was relied Every indictupon, ment must and also Lookup's case. On behalf of the prosecution, that part charge the

offence to have been done against the

peace of the king in whose reign it was committed.

Crown and dignity.

of the same section in Hawkins was referred to, where it is stated that Rastall's precedents both of indictments of felony and of inferior offences, do as often omit the words "contra pacem" as make use of them. And it was further contended, that the charging the offence to have been committed against the form of the statute, imported that it was against the peace. Judgment was respited, and the question submitted to the consideration of the judges, who held the indictment bad.

His crown and dignity.] But an indictment need not conclude against his crown and dignity, though it be usual in many indictments. 2 Hale, 188.

If an offence were felony at common law, but a special act of parliament ousts the offender of some benefit that the common law allowed him, when certain circumstances are in the fact, though the body of such indictment must express those circumstances, according as they are prescribed in the statute, yet the indictment need not conclude against the form of the statute. But yet, if it should conclude in such case against the form of the statute, it would not vitiate the indictment, but would be only surplusage. 2 Hale, 190.

But on the other side, if an offence be purely at common law; if it conclude contra formam statuti, it is insufficient and shall be - quashed, except in the instance above given of clergy. 2 Hale, 192. Therefore an indictment of battery concluding contra formam statuti, is insufficient, and shall be quashed. 2 Hale, 192.

7. (b.) The Conclusion of an Indictment upon a Statute. And against the form of the statute in such case made and proWhere a statute vided.] Regularly, if a statute only make an offence or alter an

creates an

offence.

offence from one crime to another, as making a bare misdemeanor a felony, the indictment for such new-made offence, or new-made felony, must conclude against the form of the statute, otherwise it is insufficient. 2 Hale, 192.

If an offence be newly enacted, or made an offence of a higher nature by an act of parliament, the indictment must conclude contra formam statuti. 2 Hale, 189.

But if a man be indicted for an offence, which was at common law, and concludes against the form of the statute, but in truth it be not brought by the indictment within the statute, it shall be quashed, and the party shall not be put to answer it as an offence at common law. 2 Hale, 171.

In general, if an indictment conclude contra formam statuti, the latter words may be rejected if the indictment be good as an indictment at common law. Say. 225.

If an act of parliament, making an offence, be but temporary, and made perpetual by another statute, the indictment concluding against the form of the statute, is good. 2 Hale, 173.

If the former statute be discontinued, and revived by another statute, the best way is to conclude against the form of the statutes; though there is good opinion that it is good enough to conclude against the form of the first statute. 2 Hale, 173. And indeed it seems clear that if a statute refer to a former statute, and adopt and continue the provisions thereof, the in

dictment must conclude against the form of the statute. 2 Haw. c. 25. § 117. 1 Saund. 135. n. 3.

But if one statute be relative to another, as where the former makes the offence, and the latter adds the penalty; the indictment ought to conclude against the form of the statutes. 2 Hale, 173.

If one statute creates an offence, and the other adds a penalty: or if the same offence be prohibited by several statutes: or where a later statute ordains that a former statute shall be executed in a new case not mentioned in the former, the conclusion shall be contra formam statutorum. 2 Haw. c. 25. § 117.

If an offence be at common law, and also prohibited by statutes, the indictment may conclude contra formam statuti, or statutorum. 2 Hale, 191.

7. (c.) Conclusion of an Indictment for an Offence which is such both at Common Law and by Statute.

If a man be indicted for an offence which was at common law, and concludes contra formam statuti, but in truth it is not brought by the indictment within the statute, it shall be quashed, and the party shall not be put to answer it as an offence at common law. 2 Hale, 171.

As if a man be indicted for drawing his dagger in the church upon J. S. contra formam statuti, but omits these words, with an intent to strike, the indictment shall be quashed, and the party shall not be put to answer the assault at common law. 2 Hale, 171.

If a trespass be made a felony, the indictment must conclude contra formam statuti. 2 Hale, 189.

If an offence be at common law, and also prohibited by statute, with a corporal or other penalty, yet it seems the party may be indicted at common law, and then, though it conclude not contra formam statuti, it stands as an indictment at common law, and can receive only the penalty, that the common law inflicts in that case. 2 Hale, 191.

Thus in case of a riot, the indictment need not conclude contra formam statuti, though prohibited by acts of parliament under severe penalties. 2 Hale, 191.

So in case of perjury. Ib.

But otherwise in the cases of indictments for forcible entry, and for forgery. 2 Hale, 192.

X. Charges of an Indictment.

By the 10 & 11 W. c. 23. No clerk of assize, clerk of the peace, or other person, shall take any fee of any person bound over to give evidence against a traitor or felon for the discharge of his recognisance; nor shall take more than 2s. for drawing any bill of indictment against any such felon; on pain of 51. to the party grieved, with full costs. And if he draw a bill defective, he shall draw a new one gratis, on the like pain.

For the drawing of indictments for other misdemeanors not being treason or felony, no fee is limited by any statute; and therefore the same dependeth upon the custom and ancient usage.

XI. Pleading.

If a defendant plead misnomer in abatement to an indictment When one may for a misdemeanor, and it is found against him, he cannot afterplead over. wards plead the general issue: but final judgment must be given against him. R. v. Gibson, 8 East. 107.

Dilatory plea.

Abatement.

Misnomer.

It is otherwise in the case of felony in such case, he may plead over to the felony. And in all pleas, whether to the writ or in bar, by matter of record, or by matter of fact, or both, if the plea do not confess the felony, though his plea be found against him by issue tried, or adjudged against him by the court, yet he shall not be convicted thereon, but plead over to the felony not guilty, as well upon an indictment, as upon an appeal, and this in favorem vitæ. 2 Hale, 239.

It is thought right to insert in this place a short account of the several modes of pleading to an indictment; a thing omitted in former editions of this work, though very fit to be known and understood.

Pleas upon the arraignment are of four kinds :

I. Pleas declinatory of Trial.

Sanctuary.
Clergy.

II. Pleas in Abatement of the Indictment.

1. Defects arising on the Indictment itself.

2. Defect in Matters of Fact—as misnomer, false addition.

III. Pleas in bar of the Indictment.

1. Matter of Record.

2. Mixt of Record and Fact.

Matters of record, are-pardons.

Mixt 1. auterfoits acquit

2.

-attaint of same felony.

or convict

3. Convict of another Felony, and had his Clergy.

IV. Pleas to the Matter of the Indictment not guilty.

In pleading a dilatory plea, defendant must annex an affidavit of the truth of the plea. R. v. Grainger, 3 Burr. 1617.

§ XI. (II. 1.) Defects arising on the Indictment itself. The same exceptions (arising upon the indictment which would be the grounds of pleading in abatement,) will also be exceptions after the trial in arrest of judgment. 2 Hale, 236. 237.

And, as may be seen in the foregoing section (IX.), there are many causes of such pleading in abatement: and generally all manner of uncertainty is good cause of abatement.

§ XI. (II. 2.) Defects in Matters of Fact.

Indictment of one by the name of T. D. Plea by his counsel, ore tenus, that his name was J. and not T. D. Clerk of the ar

raigns replied on behalf of the crown, that he was known as well by the name of T. as by the name of J. D. Issue joined. The sheriff returned a jury instanter to try this issue, and it was found for the crown; upon which the prisoner pleaded over to the felony, not guilty, Dean's Case, 1 Leach, 476.

A person indicted for a misdemeanor may plead that his name is Shakespeare, and not Shakepeare, for the latter is not idem sonans. R. v. Samuel Shakespeare, 10 East. 83.

Misnomer may be pleaded by attorney, as well as in person. R. v. Westby, 10 East, 83. (n.)

In all cases of pleading misnomer, there must be a plea over to the felony. 2 Hale, 238.

Omitting the name of dignity is matter of abatement, and of reversal of outlawry. 1 Show. 392. Dethick s Case, Cro. Eliz. 924. 542.

Duke or not duke; earl or not earl; baron or not baron, shall not be tried by the country, but by record; and the writ testifying the plea pleaded must be shewn because it is a dilatory plea. Countess of Rutland's Case, 6 Rep. 53. 2 Hale, 240.

Sect. XI. Pardons.

Pardon is matter of record, and must be pleaded as such, and Pardon. in bar; letters under the king's sign manual cannot be pleaded as a pardon; it must be pleaded sub pede sigilli.

One is indicted of felony by the name of J. E. yeoman; and the king pardons him by the name of J. E. gentleman, all manner of felonies. Held that the pardon is good, and may be pleaded with an averment, that the said J. E. yeoman, and J. E. gentleman, are one and the same person. Keilw. 58. A.

Sect. XI. (III. 1.) Plea of auterfoits acquit.

Another plea in bar is auterfoits acquit de mesme felonie. It is Auterfoits mixed, for it consists, first, of matter of record, viz. the former acquit. indictment and acquittal, and before what justices, and whether by verdict or otherwise; and second, of matter of fact, viz. that the prisoner is the same person who was acquitted, and that the fact is the same of which he was acquitted, and is now indicted. 2 Hale, 241.

It is a good plea on an indictment of felony to say that he was before arraigned of the same felony before such and such justices, &c. and was acquitted; and the person so pleading shall vouch the record, for he shall not be compelled to have the record at hand, because his plea is not dilatory, but in bar; and such plea shall be a good bar. Staundf. 105. lib. 2. c. 36.

If the plea be dilatory the record must be shewn. Co. Lit. 127. b.

If the second indictment be in K. B. and first acquittal were before justices of the peace, or gaol delivery, a writ of certiorari will be granted to remove the record before them, and the plea be respited till the acquittal can be removed into the court. 2 Hale, 242.

The court may examine proof that it is the same felony and allow it.