currence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may *discharge an appeal;(7) "nam quilibet potest renunciare juri pro se introducto." (52)

[317

These are the several methods of prosecution instituted by the laws of England for the punishment of offences, of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking, by the way, the most material variations that may arise from the method of proceeding by either information or appeal.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

[*318

*WE are next, in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanors been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears, according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3 in capital ones, that no man shall be put to death without being brought to answer by due process of law.

(i) 1 Hal. P. C. 9.

(52) [ For anyone may relinquish a right introduced for his own avail."] These appeals had become nearly obsolete; but the right still existing was claimed, and in part exercised in the year 1818, by William Ashford, eldest brother and heir-at-law of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer Assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded "not guilty, and that he was ready to defend himself by his body;" and, taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singular case, in the report of it under the name of Ashford v. Thornton, 1 B. & A. 405. It was held in that case that where in an appeal of death the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt as to leave no possible doubt in the minds of the court, and therefore that a counterplea which only stated strong circumstances of suspicion was insufficient. It was also held that the appellee may reply fresh matter tending to show his innocence, -—as an alibi, and his former acquittal of the same offence on an indictment. But it was doubted whether when the counterplea is per se [By itself ] insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, ordered that judgment should be stayed in the appeal and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century, (see Bigby v. Kennedy, 5 Burr. 2643, 2 W. Bl. 713. Rex v. Taylor, 5 Burr. 2793. Smith v. Taylor, id. ibid, -the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder, as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 Geo. III. c. 46. -CHITTY.

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill "ignoramus," or, we know nothing of it; intimating that, though the facts might possibly be true, that truth did not appear to them; but now they assert in English more absolutely "not a true bill," or (which is the better way) "not found," and then the party is discharged without further answer. (21)

poisoned, or otherwise hurt upon the sea or any place out of the countries named, shall die of such cause in those countries, or so suffering at any place in England or Ireland shall die thereout, every offence committed in respect of any such case, whether the offence shall amount to murder or manslaughter or of being accessary to either offence, may be dealt with, etc., and punished in the county or place in those countries in the same manner as if such offence had been committed wholly within that county or place. As to offences committed on the borders of counties. By 7 Geo. IV. c. 64, s. 12, where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanor may be tried and punished in any of the said counties in the same manner as if it had been actually and wholly committed therein.

As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, s. 13, where any felony or misdemeanor shall be committed on any person, or on or in respect of any property in or upon any coach, wagon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any voyage upon any inland navigation, such felony or misdemeanor may be tried and punished in any county through any part whereof such coach, etc., or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county; and where any part of any highway or navigation shall constitute the boundary of any two counties, such felony or misdemeanor may be tried and punished in either of the said counties through, or adjoining to, or by the boundary of any part whereof such coach, etc., or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.

As to larceny generally. By the Larceny Act, (7 & 8 Geo. IV. c. 29, s. 76,) (Now superseded by stat. 24 and 25 Vict. c. 96, 14,) if any person, having feloniously taken any property in any one part of the United Kingdom, shall afterwards have it in his possession in any other part, he may be indicted for larceny in that part where he shall so have such property in his possession, as if he had actually stolen it there; and if any person having knowingly received, in any one part of the United Kingdom, any stolen property which shall have been stolen in any other part, he may be indicted for such offence in that part where he shall so receive such property, as if it had been originally stolen in that part.

As to accessaries. By stat. 24 & 25 Vict. c. 94, I, accessaries either before or after the fact may be tried in any court that has jurisdiction to try the principal offender.

As to treasons. See Chit. C. L. 188, stat. 7 & 8 Wm. III. c. 3, and subsequent statutes. An indictment for bigamy may, by 9 Geo. IV. c. 31, s. 22 (Now superseded by stat. 24 & 25 Vict. c. 100, 57), be tried in the county where the offender is apprehended or is in custody, the same as if the offence had been actually committed there; (provided the second marriage occurred in England or Ireland).

In an indictment for a libel the venue must be laid in the county where the publication took place.

Indictments for offences against the customs and excise may be tried in any county of England. (See 39 & 40 Vict. c. 36, 258.)

Offences committed in a county of a city or town may be tried in the county at large. See 38 Geo. III. c. 52; 51 Geo. III. c. 100; 60 Geo. III. c. 4; I Geo. IV. c. 4. (See 14 & 15 Vict. c. 100, 23.) If the indictment states the felony to have been committed in the county at large, and it was committed in the county of a city or town, this is bad. Rex v. Mellor, R. & R. C. C. 144. But if the offence be properly laid in the county of a town, and the indictment is preferred in the county at large, it need not be averred that that is the next adjoining county to the county of the town. Rex v. Goff, id. 179. The 26 Hen. VIII. c. 6, s. 6, which makes felonies in Wales triable in the next English county, extends "to felonies created since that statute. Rex v. Wyndham, id. 197.CHITTY.

(21) The legal termination of a prosecution is sufficiently shown by the refusal of the grand jury to find a bill. A suit for malicious prosecution may be brought after the return "not a true bill" by the grand jury without waiting for the formal order of discharge by the court. Potter v. Časterline, 41 N. J. L. 22, 27 (1879).

But a fresh bill may afterwards be preferred to a subsequent grand jury.(22) If they are satisfied of the truth of the accusation, they then *endorse upon it "a true bill," anciently "billa vera."(23) The [*306 indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbors: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree;(r) and the indictment, when so found, is publicly delivered into court. (24)

(r) 2 Hal. P. C. 161.

(22) A bill of indictment returned "not a true bill" cannot be reconsidered by the same grand jury, but a new bill may be sent. State v. Brown, 81 N. C. 568, 570 (1879). Where a bill of indictment is "ignored," a new bill charging the defendant with the same offence may be sent to the same grand jury, and the same and additional evidence laid before them to support it. State v. Harris, 91 N. C. 656, 658 (1884). "A refusal to find a bill is equivalent to a finding under oath of the grand jurors that the evidence is insufficient to warrant the charge. The defendant is therefore entitled to his discharge, and no prosecuting officer has the right to treat such finding as void," and lay another information before the grand jury. Richards v. State, 22 Neb. 145, 148 (1887). But see Fitch v. The State, 2 Nott & McCord (S. C.) 558, 559, which holds that where the grand jury returns "no bill," the accused person is not entitled, as a matter of course, to a discharge from his recognizance, but the solicitor may prefer a new bill against him without assigning any cause.

(23) The endorsement of the grand jury is a necessary part of an indictment. "A copy which omits this indispensable part of the indictment is imperfect, and is not a copy within the intendment of the act, which contemplates that the prisoner shall have a true copy of the entire instrument. The prisoner does not waive his right to a true copy of the indictment by pleading before a copy has been served upon him. State v. Howell, 3 L. Ann. 50, 52 (1848). The indictment must charge the prisoner with the same offence as that laid in the bill. Sharff v. Commonwealth, 2 Binney (Pa.) 514, 519 (1810). Indictments found by the grand jury should be signed by the foreman, and be thus returned into court, in the presence of the jury. Where an indictment was returned into court, but the signature of the foreman was by accident omitted, it was held, that it could not be afterwards affixed by the foreman, or amended, except on recommitment to the jury. State v. Squire, 10 N. H. 558, 560 (1840). "When a written accusation is properly indorsed and returned by the grand jury into court, it becomes a valid indictment; and the obligation of the accused to answer is not destroyed by the clerical omission of a recital upon the minutes, of the fact of the return." Mose v. The State, 35 Ala. 420, 425, 426 (1860). The practice for the foreman to sign his name to the finding of the grand jury, though useful and proper, does not seem to be essential. It is the grand jury's returning the bill into court, and their publicly rendering their verdict on it, in the form "a true bill," and that being recorded or filed among the records of the court, that makes it effectual. State v. Calhoon, I Dev. & Bat. Law (N. C.) 374, 376 (1835). It was also held in the above case that, if the foreman must put his name on the bill, the variance in the manner of his spelling it, from that of the clerk's, is immaterial. Although the failure of the foreman of a grand jury to certify under his hand an indictment to be a true bill is no cause for arrest of judgment after a trial and conviction, it is ground for quashing the indictment before trial. State v. Burgess, 24 Mo. 381, 382 et seq. (1857).

(24) "There is no necessity for the insertion upon the record of a special entry stating the finding of the grand jury; it is sufficient if upon the record there is enough to show a delivery of the indictment into court by the grand jury." Collins v. State, 13 Fla. 651, 659 (1870). It is not necessary that the entire panel of a grand jury be present when an indictment is found, so long as twelve concur. State v. Ostrander, 18 Iowa, 435, 443 (1865). "It is error to put a defendant on trial on an indictment unless it is returned into open court, and the only evidence of that fact inust be found in the record of the case. Gardner v. People, 20 Ill. 430, 433 (1858).

Indictments must have a precise and sufficient certainty. (25) By statute

(25) The following general rules as to the form of the indictment may be found useful. The indictment must state the facts of the crime with as much certainty as the nature of the case will admit. Cowp. 682. 5 T. R. 611-623. Therefore an indictment charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insufficient. 3 T. R. 581. The cases of indictment for being a common scold or barretor, or for keeping a disorderly house, or for conspiracy, may be considered as exceptions to the general rule. 2 T. R. 586. 1 T. R. 754. 2 B. & A. 205. And an indictment for endeavoring to incite a soldier to commit an act of mutiny, or a servant to rob his master, without stating the particular means adopted, may also be considered as an exception. I B. & P. 180.

The indictment ought to be certain to every intent and without any intendment to the contrary. Cro. Eliz. 490. Cro. Jac. 20. But this strictness does not so far prevail as to render an indictment invalid in consequence of the omission of a letter which does not change the word into another of different signification, as undertood for understood, and recevd for received, (1 Leach, 134, 145;) and if the sense be clear, nice objections ought not to be regarded, (5 East, 259;) and in stating mere matter of inducement, not so much certainty is required as in stating the offence itself. I Vent. 170. Com. Dig. Indictment, G. The charge must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include any thing more than is expressed. 2 Burr. 1127. 2 M. & S. 381. And every crime must appear on the face of the record with a scrupulous certainty, (Cald. 187,) so that it may be understood by every one, alleging all the requisites that constitute the offence; and that every averment must be so stated that the party accused may know the general nature of the crime of which he is accused, and who the accusers are, whom he will be called upon to answer, (1 T. R. 69;) and as a branch of this rule it is to be observed that in describing some crimes technical phrases and expressions are required to be used to express the precise idea which the law entertains of the offence. See the instances in the text. The offence must be positively charged, and not stated by way of recital: so that the words "that whereas" prefixed will render it invalid. 2 Stra. 900, n. I. 2 Lord Raym. 1363. Stating an offence in the disjunctive is bad. 2 Stra. 901, 200; and see further, 1 Chit. C. L. 2 ed. 236. Repugnancy in a material matter may be fatal to the indictment. 5 East, 254. But though the indictment must in all respects be certain, yet the introduction of averments altogether superfluous and immaterial will seldom prejudice. For if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage. I T. R. 322. I Leach, 474. 3 Stark. 26. And see further, as to repugnancy and surplusage, 1 Chit. C. L. 2 ed. 332, 338, etc.

Presumptions of law need not be stated, (4 M. & S. 105. 2 Wils. 147;) neither need facts of which the court will ex officio take notice. It is not necessary to state a conclusion of law resulting from the facts of a case: it suffices to state the facts and leave the court to draw the inference. 2 Leach, 941. Neither is it necessary to state mere matter of evidence which the prosecutor proposes to adduce, unless it alters the offence; for if so, it would make the indictment as long as the evidence. I Stra. 139, 140. Forst.

194.

2 B. & A. 205. In general, all matters of defence must come from the defendant, and need not be anticipated or stated by the prosecutor. 5 T. R. 84. 2 Leach, 580. 2 East, 19. And it is never necessary to negative all the exceptions, which by some other statute than that which creates the offence, might render it legal; for these must be shown by defendant for his own justification. 2 Burr. 1036. 1 Bla. Rep. 230. Facts which lie more particularly within the defendant's than the prosecutor's knowledge need not be shown with more than a certainty to a common intent. 5 T. R. 607. Hawk. b. 2, C. 25, S. 112. If notice be necessary to raise the duty which the defendant is alleged to have broken, it should be averred; but where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary either to state or prove it. 5 T. R. 621. If a request or demand is necessary to complete the offence, it must be stated in the indictment. 8 East, 52, 53. 1 T. Ř. 316. Cald. 554. Where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved. 2 Stark. 245. R. & R. C. C. 365. I Hale, 561. 2 East, P. C. 514, 515. 2 R. & R. C. C. 317. Indictments must be in English. 4 Geo. II. c. 26. 6 Geo. II. c. 6. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue and then translated, showing its applications, (6 T. R. 162. 7 Moore, 1;) but it has been said to be both needless and dangerous to translate it. I Saund. 242, n. I. By the same acts, statutes 4 Geo. II. c. 26, and 6 Geo. II. c. 14, all indictments must be in words at length; and therefore no abbreviations can be admitted. 2 Hale, 170, n. g. Nor can any figures be allowed in indictments, but all numbers must be expressed in words at length; but to this rule there is an exception in case of forgery and threatening letters, when a facsimile [Representation] of the instrument forged must be given in the indictment. Hale, 170, 146.

2

1 Hen. V. c. 5, all indictments must set forth the Christian name, surname, and addition of the state and degree, mystery, town, or place, and the county of the offender; and all this to identify his person. (26) The time and place are also to be ascertained by naming the day and township in which the fact was committed; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment and the place to be within the jurisdiction of the court, unless where the place is laid not merely as a venue, but as part of the description of the fact. (s)(27)

(8) 2 Hawk. P. C. 435.

As to the insertion of several counts in an indictment, see I Chit. C. L. 248 to 250; and as to when part of a count may be found, id. 250 to 252. As to the joinder of several offences, id. 253 to 256. As to variances, id. 2 ed. 293, 294. As to the amendment of indictments, id. 297 to 298; and when an indictment may be quashed, id. 299 to 304. As to the power of a court of equity to stay indictment, id. 2 ed. 304. As to when an action, as well as an indictment, may be brought, see ante, [Before], 6.-CHITTY.

By stat. 24 & 25 Vict. c. 96, % 41, a person on trial for robbery may be convicted of assault, with intent to rob; by sec. 72 of the same act a conviction for larceny is proper under an indictment for embezzlement; by sec. 88 it is provided that there shall be no acquittal in an indictment for false pretence, if the offence amount to larceny; by sec. 6 of the stat. 24 & 25 Vict. c. 100, an indictment for murder or manslaughter need not set forth the manner in which nor the means by which the death of the person then deceased was caused. In some of the United States there are statutes containing provisions similar to the one last stated. See State v. Morrisy, 70 Me. 401 (1879). Campbell v. Com., 84 Pa. 187 (1879). Williams v. State, 350, 175. Newcomb v. State, 37 Miss. 383 (1859). Sueed . People, 38 Mich. 248 (1878). People v. King, 27 Cal. 507 (1865). An indictment charging the offence (maintaining a dam which was a nuisance) as having been committed in Bangor, though in fact a portion of the dam was in the town of Eddington, both in Penobscot county, was held good; the place being laid merely by way of venue, and not constituting any part of the description of the offence. State v. Godfrey, 3 Fairfield (Me.) 361, 369 (1835). An indictment for an assault with intent to commit murder in the first degree must set forth and describe the manner of the assault, as that it was committed with a loaded gun, knife, or pistol, or other instrument capable of producing death; that it was made deliberately on premeditation to commit murder in the first degree. Bass v. The State, 6 Jere Baxter (Tenn.) 579, 591 (1872). An indictment which charges a wilful, felonious assault of deliberately premeditated malice with a revolver, and a beating and bruising then and there, which is also charged to be wilful, felonious and of deliberately premeditated malice, followed by the infliction then and there of a mortal wound, of which the deceased instantly died, charges murder in the first degree. People v. Davis, 8 Utah, 412, 415 (1893).

(26) But, by stat. 7 Geo. IV. c. 64, s. 19, it was enacted that no indictment should be abated by reason of any dilatory plea of misnomer, or of want of addition, or of the wrong addition, of the party offering such plea; but the court, if satisfied by affidavit or otherwise of the truth of such plea, might cause the indictment to be amended. And the 14 & 15 Vict. c. 100, s. 24 provides that no indictment shall be held insufficient (inter alia) [Among other things], by reason that any person mentioned in the indictment is designated by a name or office or other descriptive appellation instead of his proper name, nor for want of or imperfection in, the addition of any defendant.-STEWART.

(27) By 7 Geo. IV. c. 64, s. 20, "no judgment, upon any indictment or information, for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words 'as appears by the record,' or with force and arms,' or 'against the peace;' nor for the insertion of the words 'against the form of the statute,' instead of 'against the form of the statutes,' or vice versa; [The converse], nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office, or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence." The objections enumerated in this clause are no longer available, either in arrest of judgment or by writ of error, because it enacts that judgment