another jury, some of the witnesses having been resworn, the evidence given by them at the first trial was read over to them from the Judge's notes, liberty being given, both to the prosecution and to the prisoner, to examine and cross-examine the witnesses, it was held that this proceeding was irregular, and could not be cured by the consent of the prisoner. (a) (a) Reg. v. Bertrand, L. R. 1 P. C. App. 520. CHAPTER IX. PLEADING. 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. Those circumstances mentioned in the Statute to make up the offence shall not be supplied by any general conclusion contra formam statuti. As to indictments in general, the charge must contain such a description of the injury or crime, that the defendant may know what injury or crime it is which he is called upon to answer; that the jury may appear to be warranted in their conclusions of guilty or not guilty upon the premises delivered to them; and that the Court may see such a definite injury or crime that they may apply the remedy or punishment which the law prescribes. The certainty essential to the charge consists of two parts-the matter to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed must be set out, and all beyond are surplusage. (a) Where an offence is created by Statute, it is the safest rule to describe the offence in the very words used in the Statute, and the Courts are generally averse to support indictments where other words have been substituted. (b) Where a Statute uses the word "maliciously" in de (a) Reg. v. Tierney, 29 U. C. Q. B. 184-5, per Morrison, J. (b) Reg. v. Jope, 3 Allen, 162, per Carter, C. J. scribing an offence, it is not sufficient to allege that it is done "feloniously," as the former expression is not included in the latter. Where a Statute uses the words wilfully and maliciously," and the act is laid as done "unlawfully, maliciously, and feloniously," the word wilfully" being omitted, the indictment is insufficient; for where both the words "wilfully" and "maliciously " are used, they must be understood as descriptive of the offence, and, therefore, necessary in describing the offence in an indictment. (a) 66 It is not sufficient for an indictment to follow the words of a Statute where the allegations submit a question of law for the jury to determine. It is not an universal rule that an offence may be described, in an indictment, in the words of the Statute which has created it; for an indictment charging that the defendant falsely pretended certain facts, although in the very language of the Statute, was held defective in error, for not averring specifically that the pretences were false. (b) Where a Statute creates a new offence, under particular circumstances, without which the offence did not exist, all these circumstances ought to be stated in the indictment. The prisoner should be able to gather from the indictment whether he is charged with an offence at the common law, or under a Statute, or, if there should be several Statutes applicable to the subject, under which Statute he is charged. (c) Where the offence charged is created by any Statute, or subjected to a greater degree of punishment by any Statute, the indictment shall, after verdict, be held sufficient, if it describes the offence in the words of the Statute creating the offence, or prescribing the punish (a) Reg. v. Jope, 3 Allen, 162-3, per Carter, C. J. (b) Reg. v. Switzer, 14 U. C. C. P. 477; Rex v. Perrott, 2 M. & S. 379. (c) Reg. v. Cummings, 4 U. C. L. J., 188. per Esten, V. C. ment, although they be disjunctively stated, or appear to include more than one offence, or otherwise. (a) It would appear, however, that this clause does not dispense with the necessity of stating the circumstances under which the offence was committed, and without which it could not have been committed. (b) There are numerous instances where, the Statute being disjunctive, a conjunctive statement is commonly used in an indictment. Thus, the Statute 7 & 8 Geo 4, c. 30, enacts, that if any person shall unlawfully and maliciously cut, break, or destroy any threshing-machine, the indictment may charge that the accused did feloniously, unlawfully, and maliciously cut, break, and destroy. So, where the offence by Statute was unlawfully or maliciously breaking down, or cutting down, any sea bank, or sea wall, the indictment may charge a cutting and breaking down. (c) And the indictment will not be bad on the ground of its charging several offences. In indictments for offences against the persons or property of individuals, the christian and surname of the party injured must be stated, if the party injured be known. (d) Surplusage, or the allegation of unnecessary matter, will not vitiate an indictment at common law, or on a Statute. The unnecessary allegations need not be proved, and may be rejected, provided they are not matters of description, (e) and do not alter the meaning of the words requisite to define the offence charged. (f) Only material allegations need be proved. (g) (a) Reg. v. Baby, 12 U. C. Q. B. 346; 32 & 33 Vic. c. 29, s. 79. An indictment charged A. with having made a false declaration, before a Justice, that he had lost a pawnbroker's ticket, whereas he had not lost the ticket, but "had sold, lent, or deposited it with one C.":-Held, that the indictment was not bad for uncertainty, because the words "had sold, lent, or deposited" it were surplusage (a) It is a universal principle, which runs through the whole criminal law, that it will be sufficient to prove so much of an indictment as charges the defendant with a substantive crime. (b) 66 The ordinary conclusion of an indictment for perjury. did wilfully and corruptly commit wilful and corrupt perjury," may be rejected as surplusage. (c) If the words "contra formam statuti" are improperly introduced into an indictment, they may be rejected as surplusage. (d) The 32 &33 Vic., c. 29, s. 23, enacts that no indictment. shall be held insufficient for want of the averment of any matter unnecessary to be proved, or for the insertion of the words "against the form of the Statute," instead of the words "against the form of the Statutes," or vice versa; and s. 78 cures these defects after verdict. The former Statute, 4 & 5 Vic., c. 24, s. 26, contained language somewhat similar to s. 78 of the present Act. It only, however, purported to cure the insertion of the words "against the form of the Statute," instead of the words "against the form of the Statutes." The present Act cures the omission of these words. An indictment on the former Statute, for receiving (a) Reg. v. Parker, L. R. 1 C. C. R. 225; 39 L. J. (M. C.) 60. (b) Reg. v. Bryans, 12 U. C. C. P. 167, per Draper, C. J. (c) Reg. v. Hodgkiss, L. R. 1 C. C. R. 213, per Kelly, C. B; Ryalls v. Reg. 11 Q. B. 781. (d) Reg. v. Cummings, 4 U. C. L. J. 185, per Draper, C. J.; Rex v. Matthews, 5 T. R. 162; see also Reg. v. Huntley, 6 U. C. L. J. 262; Bell 238. |