« EelmineJätka »
But some provisions of a more general nature shall here be briefly noticed.
And, first, by 9 Geo. IV. c. 15, and 11 & 12 Vict. c. 46, s. 4, judges at nisi prius or at any court of oyer and terminer and gaol delivery, are empowered, at their discretion, to cause an indictment or information for any offence whatever, to be forthwith amended by an officer of the court, when any variance, shall appear between some matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment or information whereon the trial is pending.
Again, by 14 & 15 Vict. c. 100, s. 1(a), whenever on the trial of an indictment, there shall appear to be a variance between the statement therein and the evidence offered as to the name of any county, riding, division, city, borough, town corporate, parish, township or other place: or in the name or description of any person therein alleged to be the owner of property (real or personal) forming the subject of the offence charged, or alleged in the indictment to be injured or damaged, or intended to be injured or damaged, by such offence; or in the name or description of any person, matter or thing therein named or described; or in the ownership of any property named or described therein :-it shall be lawful for the court before which the trial shall be had, in any of the
stabbing or wounding, 14 & 15 Vict. 24 & 25 Vict. c. 99, s. 37; for perc. 19, s. 5; for larceny, 24 & 25 Vict. jury, 14 & 15 Vict. c. 100, ss. 20, 21. c. 96, ss. 5, 6, 92; for robbery, 24 & (a) As to the construction of this 25 Vict. c. 96, s. 41; for embezzle- Act, see Sill's case, 1 Dearsley's ment and obtaining money under C. C. R. 132; Frost's case, ib. 474; false pretences, 12 & 13 Vict. c. 103, The Queen v. Green, 26 L. J., M. C. s. 15; 14 & 15 Vict. c. 100, s. 18; 17. It may be here observed, that 24 & 25 Vict. c. 96, ss. 72, 88; for the statute includes under the word offences against the Post-office, 11 indictment,-an information, in& 12 Vict. c. 88, 8.5; for receiving quisition, presentment; any plea, stolen property, 24 & 25 Vict. c. 96, replication, and other pleading ; s. 94; for forgery, 24 & 25 Vict. and also any nisi prius record. c. 98, s. 44; for treason felony, 11 (14 & 15 Vict. c. 100. s. 36). & 12 Vict. c. 12, s. 5; for coining,
above cases, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order the indictment to be amended, according to the proof, by an officer of the court or some other person ;-on such terms as to postponing the trial, to be had before the same or another jury, as the court shall think reasonable.
And by 14 & 15 Vict. c. 100, ss. 5,7, and 24 & 25 Vict. c. 98, ss. 42, 43, whenever it becomes necessary, in any indictment, to make averment as to an instrument which shall consist wholly or in part of writing, print or figures; -it shall be sufficient to describe such instrument by any name, description or designation, by which it is usually known, (or by the purport thereof,) without setting forth any copy or fac-simile.
Moreover, by 14 & 15 Vict. c. 100, s. 9, if on the trial of one accused of a felony or misdemeanor, it shall appear to the jury that he did not complete the offence charged, but was guilty only of an attempt to commit the same, the jury may find accordingly, and he shall be punished in the same manner as if he had been indicted for the attempt only.
By the same statute (sect. 12), if upon the trial of a person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, he shall not by reason thereof be entitled to be acquitted of the misdemeanor; but he shall not be liable to be afterwards prosecuted for the felony, unless the court shall think fit to discharge the jury from giving any verdict, and shall direct an indictment for the felony; in which case he shall be dealt with in all respects as if he had not been put on his trial for the misdemeanor.
And, finally, by sect. 24, no indictment for any offence shall be held insufficient 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 the words “ with force and arms;" or the words “ 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 versâ ; nor for that any person is designated by a name of office or other descriptive appellation, instead of his proper name; 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 on an impossible day, or on a day that never happened ; nor for want of a proper or perfect venue; nor for want of a proper or formal conclusion; nor for want of or imperfection in the addition of any defendant; nor for the want of the statement of the value or price of any matter or thing; or of the amount of damages, injury or spoil ; in
any case where the value or price, or the amount of damage, injury or spoil, is not of the essence of the offence.
III. [The remaining method of prosecution to which we formerly referred, is that which dispenses with any previous finding by a jury to fix the authoritative stamp of verisimilitude upon the accusation (6). An instance of this, by the common law, was when a thief was taken with the mainour, that is, with the thing stolen upon him in manu. For he might, when so detected, flagrante delicto, be brought into court, arraigned, and tried, without indictment; as, by the Danish law, he might be taken and hanged upon the spot, without accusation or trial. But this proceeding was taken away by several statutes in the reign of Edward the third ; so that the only species of prosecution without a previous indictment or presentment by a grand jury, now seems to be that of information.]
The term Information is variously applied in our law, We understand by it, either a charge laid before a justice or justices of the peace with a view to a summary convic
(6) Vide sup. p. 360.
tion, and of which we have already had occasion to speak; or else a complaint exhibited by a common informer in one of the courts of law, to recover a penalty, which some penal statute has made recoverable after the conviction of the offender by him, who shall first sue, or inform, for the same, and that either on his own behalf or (more usually) on behalf of himself and the Crown jointly; or else a complaint exhibited in the name of the Crown itself in the Exchequer or in Chancery, in respect of some civil claim on the part of the Crown ;-or, lastly, a complaint by the Crown in the Queen's Bench, in respect of some offence under the degree of treason or ordinary felony. It is to informations of the last species only, that our attention is to be at present directed; all the others having been sufficiently noticed in the course of the present work under their appropriate heads.
[The informations then that are exhibited in the name of the sovereign, in criminal cases, are of two kinds; first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorneygeneral: secondly, those in which, though the Crown is the nominal prosecutor, yet it is at the relation of some private person or common informer. And these last are filed in the Queen's Bench by the sovereign's coroner and attorney, usually called “ The Master of the Crown Office;" who is, for this purpose, the standing officer of the public (c).
The object of the sovereign's own criminal informations, filed ex officio by his attorney-general, are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law
(c) See R. v. Smithson, 4 B. & Ad. 861; R. v. Eve, 5 Ad. & El. 780; R. v. Larrieu, 7 A. & E. 277.
One species of such information is that in the nature of a writ of quo warranto.
[has given to the Crown the power of an immediate prosecution by this method, without waiting for any previous application to any other tribunal: which power, thus necessary not only to the ease and safety, but even to the very existence of the executive government, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of criminal informations,—that is to say, such as are filed by the master of the Crown Office upon the complaint or relation of a private subject, - are any gross and notorious misdemeanors, riots, batteries, libels and other immoralities of an atrocious kind, not indeed peculiarly tending to disturb the government, (for those are left to the care of the attorney-general,) but which, on account of their magnitude or pernicious example, deserve the most public animadversion (d).] In such cases as these, the course is for the party aggrieved to move the Queen's Bench for a rule to show cause why a criminal information should not be filed; and such motion, in case of libel, must be supported by an affidavit expressly denying the truth of the imputation (e).
This rule is served on the defendant according to the ordinary course of practice on motions; and, if no sufficient cause is shown, is made absolute, and an information filed accordingly. And when either kind of criminal information is filed in court, it must be tried by a petty jury of the county wherein the offence arose (unless, indeed, the case be of such importance as to require to be tried at bar), and for that purpose it is sent down by a writ of nisi prius into that county ; and there tried either by a common or special jury, like a civil action.
(d) Hawk. P. C. b. 2, c. 26, s. 1. A person who applies for and obtains a criminal information, is thereby concluded from bringing an action in respect of the same griev
ance. (See R. v. Sparrow, 2 T. R. 198, Hil. 1788; Walker v. Cooke, 16 M. & W. 344.)
(e) R. v. Wright, 2 Chit. Rep. 162.