When offences tute forbids the doing of a thing, the doing it wilfully, although without any corrupt motive, is indictable. (m) If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the Legislature. (n) And this mode of proceeding in such case is not taken away by a subsequent statute pointing out a particular mode of punishment for such disobedience. (o) Where the same statute which enjoins an act to be done contains also an enactment providing for a particular mode of proceeding, as commitment, in case of neglect or refusal, it has been doubted whether an indictment will lie. (a) But where a statute only adds a further penalty to an offence prohibited by the common law, there is no doubt but that the offender may still be indicted, if the prosecutor think fit, at the common law. (p) Where a statute makes that felony which before was a misdemeanor only, the misdemeanor is merged, and there can be no prosecution afterwards for the misdemeanor: but if it gives a new punishment or new mode of proceeding for what before was misdemeanor, without altering the class or character of the offence, the new punishment or new mode of proceeding is cumulative only, and the offender may be proceeded against as before for the common law misdemeanor. Therefore, notwithstanding the provisions of 9 and 10 W. 3. c. 32. against blasphemy, it was held that a blasphemous libel might be prosecuted as a common law offence. (z) It may be observed also, that it is an offence at common law to obstruct the execution of powers granted by statute. (q) But where a public act regulates rights which are merely private, an indictment will not lie for the infringement of those rights: as if a statute empowers the setting out of private roads and the directing their repairs, an indictment does not lie for not repairing them. (b) Where the statute making a new offence only inflicts a forcreated by sta- feiture and specifies the remedy, an indictment will not tute are not indictable. (m) Rex v. Sainsbury, 4 T. R. 457, where it was held to be a misdemeanor in magistrates to grant an ale licence .where they had no jurisdiction. : See post, Book II. Chap. xiv. (n) Rex v. Davis, Say. 133. (0) Rex v. Boyal, 2 Burr. 832. Rex v. Balme, Cowp. 648. cited in the notes to 2 Hawk. P.C. c. 25. s. 4. And, generally speaking, the Court of K. B. cannot be ousted of its jurisdiction but by express words, or by necessary implication. By Ashhurst J. in Cates v. Knight, 3 T. R. 445. (a) Rex v. Commings and another, 5 Mod. 179. Rex v. King, 2 Str. 1268: Cases of indictments against overseers for neglecting to account, and for not paying over the balance within the time limited by the statute. But see the authorities: and, in 2 Nol. P. L. it is stated that an indictment will lie in these cases, though the statute provides another remedy by commitment. (p) 2 Hawk. P. C. c. 25. s. 4. Rex v. Wigg, Lord Raym. 1168. 2 Salk. 460. And see the cases collected in Rex v. Dickenson, I Saund. 135, a. note (4). (z) Rex v. Carlisle, 3 B. & A. 161, 164. (q) Rex v. Smith and Others, Dongl. 441. And an indictment for such offence need not, and ought not, to conclude contra formām statuti. (b) Rex v. Richards, 8 T. R. 637. lie. (r) The true rule is stated to be this: Where the offence was punishable by a common law proceeding, before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the particular remedy is cumulative, and does not exclude the common law punishment: but where the statute creates a new offence by prohibiting and making unlawful any thing which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued and no other. (s) The mention of other methods of proceeding impliedly excludes that of indictment: () unless such methods of proceeding are given by a separate and substantive clause. (i) Thus it has been held, (u) and seems now to be settled, (w) that where a statute making a new offence not prohibited by the common law appoints in the same clause a particular manner of proceeding against the offender, as by commitment or action of debt or information, without mentioning an indictment, no indictment can be maintained. By 21 H. 8. c. 13. s. 1. no spiritual person shall take land to farm on pain to forfeit 101. per month; and it was decided on this statute, that as the clause prohibiting the act specified the punishment, the defendant was not liable to be indicted. (ƒ) And it was held not to be an indictable offence to keep an alehouse without a licence, because a particular punishment, namely, that the party be committed by two justices, was pro vided by the statute. (x) And an indictment for assaulting and beating a custom-house officer in the execution of his office was quashed, because the statute 3 Car. 1. c. 3. appointed a particular mode of punishment for that offence. (y) So an indictment for killing a hare was quashed, on the ground that it was not indictable; the statute 5 Anne, c. 14. having appointed a summary mode of proceeding before justices. (2) In one case, where no appropriation of the penalty, nor mode of recovering it, was pointed out by the statute, the Court held that it could not be recovered by indictment; but was in the nature of a debt to the crown, and suable for in a Court of revenue only. («) indictable. Amongst other decisions as to cases which cannot be made the Cases not subject of indictment, it appears to have been ruled that an indictment will not lie for setting a person on the footway in a street to distribute handbills whereby the footway was impeded and ob (r) Rex v. Wright, Burr. 543. Rex v. Douse, 1 Lord Raym. 672. (s) Rex v. Robinson, 2 Burr. 805. Rex v. Carlisle, 3 B. & A. 163. Rex v. Boyall, 2 Burr. 839. See also Hartley v. Hooker, Cowp. 524. Rex v. Wright, I Burr. 543. Rex v. Balıne, Cowp. 650. And see Faulkner's case, 1 Saund. 250, note (3). (1) 2 Hawk. c. 25 s. 4. (i) Ante, p. 47. (u) Glass's case, 3 Salk. 350. (w) 2 Hawk. c. 25. s. 4. (ƒ) Rex v. Wright, 1 Burr. 543. VOL. I. structed; (b) nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned; (c) nor for acting, not being qualified, as a justice of peace; (d) nor for selling short measure; (e) nor for excluding commoners by inclosing; (f) nor for an attempt to defraud, if neither by false tokens or conspiracy; (g) nor for secreting another; (h) nor for bringing a bastard child into a parish; (i) nor for entertaining idle and vagrant (b) Rex v. Sermon, 1 Burr. 516. But it was held by Lord Ellenborough that every unauthorised obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence in Rex v. Cross, 3 Campb. 227. where it was held to be an indictable offence for stage coaches to stand plying for passengers in the public streets. (c) Rex v. Gill, 1 Stra. 190. (e) Rex v. Osborn, 3 Burr. 1697: but selling by false measure is indictable. Ibid. 90. (f) Willoughby's case, Cro. Eliz. (g) Rex v. Channell, 2 Stra. 793. Indictment against a miller for taking and detaining part of the corn sent to him; and Rex v. Bryan, 2 Stra. 866. Anon. 6 Mod. 105. Rex v. Wheatley, 2 Burr. 1125. Rex v. Wilders, cited 2 Burr. 1128. and Rex v. Haynes, 4 M. & S. 214. This last case was an indictment against a miller, for receiving good barley to grind at his mill, and delivering a mixture of oat and barley meal, different from the produce of the barley, and which was musty and unwholesome. On the part of the prosecution, a note in 1 Hawk. P. C. c. 71. s. 1. referring to 1 Sess. Ca. 217. was cited, where it is laid down," that changing corn by a mil"ler, and returning bad corn instead "of it, is punishable by indictment; "for, being in the way of trade, it is "deemed an offence against the pub"lic:" but it was held that the indictment would not lie. Lord Ellenborough, in giving judgment, said, that if the allegation had been that the miller delivered the mixture as an article for the food of man, it might possibly have sustained the indictment, but that he could not say that its being musty and unwholesome necessarily and ex vi termini imported that it was for the food of man; and it was not ́stated that it was to be used for the sustentation of man, but only that it was a mixture of oat and barley meal. His Lordship then proceeds: "as to 66 the other point, that this is not an "indictable offence, because it res common tradesman, who is guilty "of a fraud in a matter of trade or dealing; such as is adverted to in "Rex v. Wheatley, and the other 66 cases, as not being indictable." And see also Rex v. Bower, Cowp. 323, as to the point that for an imposition, which a man's own prudence ought to guard him against, an indictment does not lie, but he is left to his civil remedy. But in Rex v. Dixon, 3 M. & S. 11. it was held, that a baker who sells bread containing alum, in a shape which renders it noxious, is guilty of an indictable offence, if he ordered the alum to be introduced into the bread, although he gave directions for mixing it up in a manner which would have rendered it harmless. See Post, Book II. Chap. ix. s. 2. (h) Rex v. Chaundler, 2 Lord Raym. 1368: an indictment for secreting A., who was with child by the defendant, to hinder her evidence, and to elude the execution of the law for the crime aforesaid. But qu. (i) Rex v. Warne, 1 Stra. 644, it appearing that the parish could not be burthened, the child being born out of it. But see a precedent of an indictment for a misdemeanor at common law, in lodging an inmate, who was delivered of a bastard child,which became chargeable to the liberty. 2 Chit. Crim. Law, 700. And see also id. 699. and 4 Wentw. 353. Cro. Circ. Comp. (7th ed.) 648, precedents of indictments for misdemeanors at common law, in bringing such persons into parishes in which they had no persons in the defendant's house; (k) nor for keeping a house to receive women with child, and deliver them. (1) And cases of non-feasance and particular wrong done to another are not in general the subject of indictment: but we have seen that circumstances may exist of mere non-feasance towards a child of tender years (such as the neglect or refusal of a master to provide sufficient food and sustenance for such a child, being his servant and under his dominion and controul), which may amount to an indictable offence. (m) It has been held, that where a mayor of a city, being a justice, made an order that a company in the city should admit one to be a freeman of that corporation, and the master of the company, being served with the order, refused to obey it, such refusal was not the subject of indictment. (n) And an indictment will not lie for not curing a person of a disease according to promise, for it is not a public offence, and no more in effect than a ground for an action on the case. (0) To keep an open shop in a city, not being free of the city, contrary to the immemorial custom there, has been held not to be indictable. (p) With regard to trespasses, it has been held that a mere act of Trespasses not trespass (such as entering a yard and digging the ground, and indictable. erecting a shed or cutting a stable,) committed by one person, unaccompanied by any circumstances constituting a breach of the peace, is not indictable; and the Court quashed such indictment on motion. () And an indictment against one person for pulling off the thatch of a man's house, who was in the peaceable possession of it, was also quashed on motion. (r) So an indictment for taking away chattels must import that such a degree of force was used as made the taking an offence against the public. An indictment averred that the defendant with force and arms unlawfully, forcibly, and injuriously seized, took, and carried away, of and from J. S., and against his will, a paper writing purporting to be a warrant to apprehend the defendant for forgery; and, after a conviction, a motion was made in arrest of judgment on the ground that the charge did not amount to an indictable offence. Perryn, B. took time to consider to the subsequent assizes, and had the case argued before him; and then held the objection valid, as the indict settlements, and in which they shortly died, whereby the parishioners were put to expense. In a late case it is stated to have been held, that no indictment will lie for procuring the marriage of a female pauper with a labouring man of another parish, who is not actually chargeable. Rex v. Tanner and Another, 1 Esp. 304. But if the facts of the case will warrant a charge of conspiracy, the offence would be substantiated, if under the circumstances the parish might possibly be put to expense. See 1 Nol. P. L. Settlement by Marriage, Sect. I. in the notes. (k) Rex v. Langley, 1 Lord Raym. 790. (1) Rex v. Macdonald, 3 Burr. 1646. (n) Rex v. Atkinson, 3 Salk. 188. (0) Rex v. Bradford, 1 Lord Rayın. 366. 3 Salk. 189. In an anon. case, 2 Salk. 522, it appears to have been held, that if a pawnbroker refuses, upon tender of the money, to deliver the goods pledged, he may be indicted. But Rex v. Jones, 1 Salk. 379. is contra. (p) Rex v. George, 3 Salk. 188. (q) Rex v. Storr, 3 Burr. 1699. ment charged nothing but a mere private trespass, and neither the king nor the public appeared to have any interest therein. (a) But where the indictment stated the entering a dwelling house, and vi et armis and with strong hand turning out the prosecutor, the Court refused to quash it. (s) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace: (t) and though such goods are the prosecutor's own property, yet, if he take them in that manner, he will be guilty. (u) (a) Rex v. Gardiner, Salisbury, 1780, MS. Bayley J. (s) Rex v. Storr, 3 Burr. 1699. (t) Anon. 3 Salk. 187. |