that complaints for an order need not be in writing unless required by the particular act of parliament; see also s. 9, p. 15, where variances as to the time and place of offence in the information and the evidence are not material. The information or complaint need not be on oath in the first When on oath. instance, unless some particular act of parliament shall otherwise require (f), except in informations where a warrant against the defendant shall issue in the first instance (s. 2), when the matter of such information must be substantiated (g) by the informant's oath or affirmation, or by some witness or witnesses on his behalf (s. 10); and also except where a summons has issued upon an information or complaint and not obeyed, and a warrant shall thereupon be issued, when the information must also be substantiated upon oath (s. 2). The oath on receiving an information or complaint is: You, C. D. do swear that the contents of this your information [or Form. complaint] signed by you, are true and correct to the best of your knowledge and belief. So help you God." Jews are sworn on the Old Testament; Mahometans on the Jews. Koran; and indeed all others, not Christians, should be sworn according to the form binding on their consciences (1 & 2 Vict. c. 105). Quakers and Moravians are to make a solemn decla- Quakers. ration or affirmation instead of an oath (3 & 4 Will. 4, c. 82, Moravians. s. 1): forms are given by the two latter statutes. A peer, who, Peers. in a court of equity, is allowed to give in his answer without oath, merely pledging his honour for the truth of it, must be sworn if examined as a witness (Arch. Pl. & Ev. Civ. Act. 480). Deaf and dumb witnesses or complainants should be Deaf and dumb sworn through the medium of another person duly qualified to persons. interpret them; and the interpreter should be sworn faithfully to put the questions and receive and state the answers. The forms will be found at pp. 17-19; they are not however Forms of ingiven in the statute (11 & 12 Vict. c. 43). formation. The complainant and defendant's names, &c. should be written Requisites of at full length; so should dates. (f) In the 3rd column of Chap. 2, this requirement is shown, and it is to be regretted that in such a statute as the present the oath was not rendered unnecessary except where a warrant is intended to be granted. (g) The form of which is placed at the foot of the information, post, p. 18 (No. 1), where the informant cannot depose to the fact; this is expressly required to be by another person by the 6 & 7 Will. 4, c. 65, s. 9 (tit." Game," post), and is not affected by the 11 & 12 Vict. c. 43. the information, &c. Complainant and defendant's names, &c. Husband and wife. Female offenders liable in all cases. Under the 3 Geo. 4, c. 126, s. 132 (the General Turnpike Act), and the 5 & 6 Will. 4, c. 50, s. 78 (the General Highway Act), certain parties may be proceeded against without describing their names, if they refuse to disclose them, and in which case a description of their person would be sufficient. If the statutes under which the proceedings are taken extend only to persons of a particular class, office, or situation of life, the defendant should be shown to come within the description of such persons, bearing in mind the broad rule for construing statutes as laid down by Lord Tenterden, that " where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis."-(Sandman v. Breach, Married women. 7 B. & C. 100). Married women, if they have committed an offence without the coercion, actual or implied, of their husbands, are equally liable to be proceeded against as other persons (Saund. Prac. 8). A husband and wife may also be jointly convicted, and punished for every offence of which they have been jointly guilty (3 J. P. 46). It has been doubted whether female offenders can be convicted of offences punishable on summary conviction, where the enacting or interpretation clauses do not include them, and especially under the Game Act (1 & 2 Will. 4, c. 32); but the 14th sect. of the 7 & 8 Geo. 4, c. 28, will remove that doubt, it being expressly applicable to offences punishable summarily as well as to those indictable, and is both prospective and retrospective: it is "That wherever this or any other statute relating to any offence, whether punishable upon indictment or summary conviction, in describing or referring to the offence or the subject-matter on or with respect to which it shall be committed, or the offender or the party affected or intended to be affected by the offence hath used or shall use words importing the singular number or the masculine gender only, yet the statute shall be understood to include several matters as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction." Joint offenders. The prosecutor may prosecute all or any of the parties, and the omission of a particeps criminis cannot, as in cases of joint contracts in civil actions, be taken advantage of by those who are prosecuted after conviction, however, of some of joint offenders, the parties omitted cannot be proceeded against (Stone's Manual, 172; see 10 J. P. 444). offenders. Several offenders, who have taken part in committing the Several same offence, whether the offence is in its nature joint or several, may be joined in the same information, and in the other proceedings. The forms given by the 11 & 12 Vict. c. 43, allow of variations being made in them (s. 32). abettors in all cases. By s. 5, "Every person who shall aid, abet, counsel or pro- Aiders and cure the commission of any offence, which is or hereafter shall be punishable on summary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction, and shall be liable on conviction to the same forfeiture and punishment as such principal offender is or shall be by law liable, and may be proceeded against and convicted either in the county, riding, division, liberty, city, borough or place where such principal offender may be convicted, or in that in which such offence of aiding, abetting, counselling or procuring may have been commited" (Vide forms, post, p. 19). Only one offence can be inserted in an information (s. 10), The Offence. although the same person may commit a greater number against the same or another statute; and in the latter case there must be a separate information for each offence (h). The time and place should be stated; but any variance be- Time and place. tween the information and the evidence adduced in support thereof as to the time at which the offence or act is alleged to have been committed shall not be deemed material, if it be proved that such information was in fact laid within the time limited by law for laying the same (i); nor as to the parish or township in which the offence or act is alleged to have been committed, provided that the same is proved to have been committed within the jurisdiction (j) of the justice or justices by whom such information shall be heard and determined (s. 9). The information being the foundation of the justice's juris- Statement of diction, it must contain a complete statement of the entire offence. (h) Although s. 10 enacts, that only one offence shall be stated in an informa tion, the offender aiding, abetting, &c. another, may be joined with the principal offender or offenders. Vide post, p. as to the adjudication of penalties where several principals. (i) But in informations for offences under the Night Poaching Act (9 Geo. 4, c. 69), the Beerhouse Acts, and Alehouse Act (11 & 12 Vict. c. 49), time is of the essence of the offence, and in those cases is material, and must be proved as laid (1 Phil. Ev. 861, 9th edit. 514; Paley, Conv. 3d edit. 85, 166.) (j) See ante, p. 5, as to the jurisdiction of justices. offence in the words of the statute, although sect. 1 enacts, that it may be shortly stated, and that no objection shall be taken to it for any defect therein in substance or in form; where the words, however, of a statute are general, or where they state merely the legal effect, it is necessary to specify the particular facts constituting the offence (R. v. Daman, 2 B. & Ald. 379). Exemptions and All exemptions and modifications must be negatived. In Paley exceptions. on Convictions, 3rd edit. 118, it is stated, "The rule, therefore, and distinction resulting from these, and confirmed by the cases mentioned in the sequel, seem to be clear, viz. that all circumstances of exemption and modification, whether applying to the offence, or to the person, that are either originally introduced or incorporated by reference with the enacting clause, must be distinctly enumerated and negatived; but that such matters of excuse as are given by other distinct clauses or provisoes need not be specifically set out or negatived" (see Steel v. Smith, 1 B. & Ald. 94); and it is immaterial, whether the exception be in another section or in a distinct act of parliament, if referred to and engrafted into the enacting clause (R. v. Pratten, 6 T. R. 559; R. v. Matthews, 10 Mod. 27; R. v. Jarvis, 1 Burr. 148; 1 East, 643; R. v. Wheatman, Doug. 232; R. v. Silcot, 3 Mod. 281; R. v. Theed, 1 Ld. Raym. 1375; Saund. Prac. 19). In the recent case of Van Boven (16 Law J. Rep. (N. S.) M. C. 4; 11 J. P. 105), which arose under the Smuggling Act (8 & 9 Vict. c. 87), the same doctrine was held; it was decided that a commitment under the 50th section, describing the offence in the words of the 2nd section, was sufficient, withCase admitting out negativing the exception in the 4th section. Where the case, however, would admit of some excuse, for want of which there would be no legal offence, as in the case of a servant proceeded against under the 4 Geo. 4, c. 34, for absenting himself from his master's service, there must be an allegation in the information and subsequent proceedings that the absence complained of was without leave and lawful excuse, though the statute contained no such qualification, but made the servant liable to imprisonment for merely absenting himself (In re Turner, 15 Law J. Rep. (N. S.) M. C. 140; 10 J. P. 570). Williams, J., also said, referring to the latter case, "I have always understood that where the words [in a statute] may be of an innocent character, that it requires an exception to turn the scale."-Vide 11 J. P. 1, Article "Whether the description of the offence of night poaching must be more particular in the of excuse. conviction than in the statute" (Fletcher v. Calthrop and Tharp, 14 Law J. Rep. (N. S.) M. C. 49, and other cases there cited). Where a written instrument is referred to, it should be stated accurately (R. v. Powell, 2 East, P. C. 976; Wright v. Clement, 3 B. & Ald. 503). 66 Describing Statute.]-Where the information is upon a local or private statute it should be recited as a certain act passed in the session of parliament held in the years of the reign of her present Majesty, intituled 'An Act,'" &c. Describing Property.]-By s. 4 the ownership of property and may Where a Second or Subsequent Offence.]—If the information is for a second or subsequent offence, for which a higher fine or greater imprisonment can be adjudged, it must be averred in the information and other proceedings, that the defendant has been previously convicted, with dates, &c. (k). (Vide Forms 4, 5, post, p. 19). FORMS (1). The information [or "complaint"] of *C. D., of the parish of to wit. C. in the county of C., labourer, taken [upon oath] before me the undersigned, one of her Majesty's justices of the peace † in and for the said county of C., at N., in the same county, this day of (k) For the purpose of ascertaining this, a Minute Book or Register of persons convicted should be kept at each petty sessions; the monthly return of fines, &c. received, might be adapted to this purpose; see post, p. 75. (1) None of these are given by the 11 & 12 Vict. c. 43. C (1) Information [on oath] when so required. |