aliter if con

tained in a proquent provision

viso in a subse

or statute:

But this is to be understood with the following limitation; that where the enacting clause of a statute constitutes an act to be an offence under certain circumstances, and not under others, there, as the act is an offence only sub modo, the particular exceptions must be expressly specified and negatived: but where a statute constitutes an act to be an offence generally, and in a subsequent clause makes a proviso in favour of particular cases, there the proviso is a matter of defence or excuse which need not be noticed in the information. (See 1 Str. 555. 2 Id. 1101. 1 T. R. 144, 145. 2 M. & S. 539.)

Thus the case of R. v. Clarke, 1 Cowp. 35., was a conviction on stat. 23 H. 8. c. 9. § 16. against playing at bowls; and the court quashed the conviction, because it was not alleged in the inform ation that the playing at bowls was out of the defendant's own orchard, and that it is only unlawful sub modo.

So, in the case of informations on stat. 1 J. 1. c. 22. § 7. (repealed by 48 G. 3. e. 60.) for buying rough hides, the conviction must nega tive the exception in the enacting clause creating the penalty, and also those contained in a former clause, to which the enacting clause refers in express terms. R. v. Pratten, 6 T. R. 559.

So, in the case of informations on stat. 5 Ann. c. 14. § 4. (repealed by 1 & 2 W. 4. c. 32.) for killing game, it was fully settled, that it was necessary to state and negative all the qualifications enumerated in stat. 22 & 23 C. 2. c. 25. (now also repealed). (See 1 Str. 66. R. v. Hill, 2 Ld. Raym. 1415. R. v. James, 1 Burr. 148.) And this was so necessary, that if the qualifications mentioned in stat. 22 & 23 C. 2. c. 25. were not set out and negatived in these informations, their being negatived by the evidence would not supply the defect. R. v. Wheatman, Doug. 346.

So, a conviction on stat. 22 & 23 C.2. c. 25. § 7. (repealed by stat. 7 & 8 G. 4. c. 27.) against unlawfully killing and taking fish in any river, &c. without the licence or consent of the lord or owner of the water, was quashed, because it did not describe the offence in the words of the statute, or say that the defendant stole the fish, or took and killed the fish of another person, or in another person's pond. R. v. Mallinson, 2 Burr. 682.

A defect in omitting so to negative the exceptions is not of form, but of substance, and therefore is not aided by a proviso in the statute, that "no conviction for any offence in the act shall be set aside for want of form, or through the mistake of any fact, circumstance, or other matter, provided the material facts alleged were proved;" for this, in effect, requires all material facts to be alleged; and it is a material fact that the defendant did not come within the exception in the enacting clause. R. v. Jukes, 8 T. R. 542. (a) 542.(a) But if a subsequent statute make any exception to a former one, it is incumbent on the defendant to shew, by way of defence, that he comes within such exception; and when the prosecutor is not obliged to negative the exceptions in a statute, and he negative some of them only, that part of the information will be rejected as sur plusage. R. v. Hall, 1 T. R. 320.

So, where negatives are descriptive of the offence, they must be

(a) In Hebden, 9. t. v. Bluff, 1 Chitt. Rep. 607. (n.), an information for keeping a net was held insufficient, after verdict, for omitting to negative the quali fications, although the word "unlawfully" was inserted in the count. (See antè, p. 700.)

set forth; for what comes by way of proviso in a statute must be insisted on by way of defence by the party accused; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them. R.v. Jarvis, 1 East, 646, 647. n.

And it seems that, although in the latter case the exceptions must need in neither be negatived in the statements of the information, it is not neces- case be negasary to negative them in the evidence given and stated in support of evidence. the charge. (See post, p. 711.)

tived in the

Whereupon the said E. F., after being duly summoned.] It must Statement of be averred in the information, that the party charged has been summons. summoned (see antè, p. 686.) Yet, if he be stated to be present at the time of the proceeding, and to have heard all the witnesses, and not to have asked for any further time to bring forward his defence, if he had any, this at all times has been deemed sufficient. R. v. Stone, 1 East, 649. (See also 1 Str. 261.)

The date of the summons must not be stated to be on an earlier day than that of the information; if it be, it will vitiate the conviction. R. v. Kent, 2 Ld. Raym. 1546.

Nor on an impossible day. In Reg. v. Dyer, 1 Salk. 181., it was stated, that the defendant was summoned to appear, and did appear, on Tuesday the 17th of April 1802, &c. In fact, the 17th of April fell on a Friday; and it being objected that the time of the summons being impossible, it was the same as if there had been no summons, the court quashed the conviction on this ground, saying, "There could be no such day, and therefore he could not appear thereupon; and when the day is not set forth, his appearance on another cannot be intended." (See R. v. Picton, 2 East, 196. post, p. 708.)

It has been held, that if the conviction be by default, upon nonappearance of the defendant, it must be clearly shewn on the face of the conviction that he had been personally served with the summons. R.v. Hall, 6 D. & R. 84. (See antè, p. 687.)

But now, pursuant to the above general form given by the stat. 3 G. 4. c.23., it will be sufficient to state, that the defendant has been duly summoned." (See antè, p. 695.)

It is evident, that if the defendant appear and make defence, it must be taken that he was duly summoned; therefore in such case it is unnecessary to say more, and the statement of his appearance cures any defect in the statement of the summons, or even the total want of one. 1 Str. 261. 1 Salk.383. 3 Burr. 1785. (See antè, p.687.) Whereupon I [or, we, &c.] the said justice or justices, did proceed Witness to be to examine into the truth of the charge contained in the said inform- named. tion, and on the aforesaid, at the parish aforesaid, one credible witness, to wit, A.W. of · county of .] It is requisite to name the witness, that he may appear to be a different person from the informer (see antè, p. 691.), as the statutes generally give the latter a share of the penalty, and therefore he cannot be a witness, excepting where the act shall specially so direct. 2 Ld. Raym. 1545. 1 Str. 316. Andr. 18. 240. Bosc. 69.

day of

in the

Magistrate's authority to ad minister the oath need not

On his oath deposeth and saith, [if E. F. be present, say] in the presence of the said E. F. at -, in the county of [State the evidence, &c.] It is sufficient to set forth in a conviction, that the witness was examined on oath, without adding that be set forth.

Witness must be stated to have been

sworn; and examined in the defendant's presence.

What is a sufficient statement of the defendant's presence:

and of the oath being administered in the presence of the justice.

Evidence to be

set forth suffi

the magistrate had authority to administer the oath, if the statute give such authority. R. v. Picton, 2 East, 195.

The witness must be stated to have been sworn and examined in the defendant's presence, even though he appear to have been sworn when the information was taken. R. v. Crowther, 1T. R. 125. (see antè, p. 691.) R. v. Selway, 2 Chitt. Rep. 522.

Ex parte Aldridge, 2 B. & C. 600. In a conviction under 3 G. 4. c. 110. (repealed by 6 G.4. c. 105.) it was held necessary that the offence should appear to have been proved on the oath of one or more credible witnesses; and therefore, where the conviction stated "that R. A. was convicted of carrying brandy liable to seizure," (without saying upon oath,) and proceeded, "and it is this day in like manner also proved on the oath of J. H. that the brandy was taken from R. A., and that he was detained by an officer of the navy," &c. it was held, that carrying the brandy was the offence, and as that was not stated to have been proved on oath, the convic tion was bad; and that R. A. (having been committed to prison) was entitled to be discharged.

Where a conviction merely stated, that the defendant on such a day appeared before the magistrate on a summons, and that the magistrate proceeded to examine into the offence, and that it appeared to him on the oath of the witnesses that the offence was committed, it was held bad. R. v. Selway, 2 Chitt. Rep. 522.

R. v. Vipont and others, 2 Burr. 1163. The conviction was, that the defendants having heard the charge (of conspiring to advance their wages in the woollen manufacture), and being called upon by the justices to shew cause why they should not be convicted, and having nothing to say whereby to defend themselves, are therefore convicted: this was quashed by the court; because the evidence ought to be particularly set forth, that the court may judge thereof; and it must be given in the presence of the defendant, that he may have an opportunity of cross-examination. R. v. Crowther, 1 T. R. 127., and R. v. Benwell, 6 T. R. 75. Bosc.71.

But though the evidence ought to be given in the presence of the defendant, if the appearance of the defendant and the examin ation of the witness are both stated to have been on the same day, the court will presume that the witness was examined in the presence of the defendant, though it be not expressly so stated. 3 Burr. 1786. Cowp. 241, 242. 2 T. R. 23., and R. v. Lovet, 7 T. R. 152. Even though it be stated that the appearance was at A. and the evidence was given at B. R. v. Swallow, 8 T. R. 284. (a)

R. v. Glossop, 4 B. & A. 616. A conviction stated, that after the appearance and plea of defendant, divers credible witnesses, to wit, J. S., &c. came before the justices upon their several oaths, to them severally and respectively, and in the presence of the said J. S. &c. duly administered: it was held that, taking it altogether, it did substantially appear that the oath was administered to the witnesses in the presence of the magistrates.

It is fully settled, that in all convictions the evidence must be set out particularly, not merely the result of it; and that sufficient cient to warrant proof must appear upon the face of the record to sustain every

the conviction.

(a) In R. v. Stone, 1 East, 648. note (a), Lord Kenyon expressed his dissatisfaction with this presumption. However, the principle has been acted upon since, on more than one occasion. (See R. v. Crisp, 7 East, 392. R. v. Glossip, 4 B. & A. 616.)

defendant must

material part of the charge, and to warrant the adjudication. And Evidence for when the witnesses have been heard, the justice should call upon also be set out. the offender for his defence, and he is bound to hear the evidence (See post, offered by him, that he may state it in the conviction, if he should give judgment against him. R. v. Lovet, 7 T. R. 152.

It is laid down by Ld. Mansfield (1 Burr. 1163.) as an undoubted maxim, that on a conviction the evidence must be set out, in order that the superior court may judge of it. It has been likewise solemnly recognized as a known distinction between orders and convictions, that in the former it is allowed to state the result only of the evidence, whereas the same mode of stating it would be undoubtedly bad in a conviction. R. v. Lloyd, 2 Str. 999. In a very early case (Reg. v. Green, 10 Mod. 215.), the conviction was quashed, because the evidence was not set forth. It was only laid that the witnesses were sworn de veritate præmissorum, and that it did not appear, from what was sworn, that the defendant was guilty; but, it was said, it ought so to have appeared to the court. Again, a conviction for taking pilchards contra formam statuti was quashed, and the reason assigned was, because the witness swore generally that the defendant was guilty of the premises; for that is taking the law upon himself. Likewise a conviction on the Candle Act was set aside, because the evidence was not set out, it being only alleged that the offence was fully and duly proved. R. v. Baker, 1 Str. 316., R. v. Theed, 2 Str. 919. 2 Bar

nard. 16. 73.

In the latter cases, where the necessity of setting out the evidence has been discussed, the judges have uniformly expressed their wish that it should be fully set forth; and the stat. 3 G. 4. c. 23. (suprà, p. 695.) expressly requires the evidence given by each witness to be stated. (See also Nash's case, 4 B. & A. 295., tit. Habeas Corpus, and In re Rix, post, p. 711.)

If a conviction state in the words of the statute the deposition of the witness to the fact, it is sufficient; but if the magistrate endeavour to shelter himself from detection by merely stating the fact of the offence in the terms of the act of parliament, as if it were the legal effect of the evidence, when the evidence itself would not warrant the conclusion, he subjects himself to a criminal information, upon a proper case laid before the court. R. v. Pearse, 9 East, 358.

The evidence, when set forth, must contain sufficient to warrant the conviction. Therefore it must be of a fact existing at the time of the information; and so it must appear. In R. v. Fuller, 1 Ld. Raym. 509., a conviction on stat. 8 & 9 W. 3. c. 19., for keeping two concealed washbacks, was quashed, because, though the information, which was given on the 30th of March, charged the defendant with then having the washbacks, the evidence, which was not given until the 3d of April, was merely that the defendant habet et custodit eadem duo et concelata vasa; confining it to the time when the evidence was given, and of course subsequent to the day of the information.

p. 711.)

The time of committing the offence must also be stated in that Time of compart of the conviction in which the evidence is set forth. Paley, 132. mitting offence For if that be not shewn, either by positive proof of the day, or by must be stated express reference in the evidence to a date previously mentioned, in the evidence; the conviction cannot be supported; as is exemplified in this

and the place where committed.

case:-A conviction on the Malt Act, 42 G. 3. c. 38. §30. (repealed by stat. 46 G. 3. c. 139.), stated an information to have been exhibited on the 29th of May 1805, charging “that the defendant, within three months now last past, did wet certain corn," &c. The evidence stated was, that the witness on the 22d of May (without mentioning the year) found a floor of malt then in the operation, &c. (so proceeding to state the fact of the offence). The conviction was quashed, on account of the defective manner in which the date was alleged in the evidence.— Ld. Ellenborough C. J. "The evidence ought to appear to support the information, and the justices should either have stated the evidence of the witness to be that the offence was committed on the 22d May 1805, if they really so understood the witness to mean; or, if they had any doubt of that, they should have inquired of him more particularly as to the date of the fact. But here the date of the year neither appears expressly by the evidence, nor by any words of reference to any other date which is certain. And if they have done their business slovenly, we cannot supply their omission. As it stands on the conviction, the offence does not appear to have been committed within three months before the prosecution commenced, which is necessary to give them cognizance." R. v. Woodcock, 7 East, 146.

So, it should appear that the fact was proved to have been committed in some place within the jurisdiction of the magistrate. R. v. Jeffries, 1 T. R. 241.

In R. v. Edwards, 1 East, 278., a conviction on stat. 5 G. 3. c. 14. (repealed by stat. 7 & 8 G. 4. c. 27.) for fishing, without consent of the owner, "in part of a certain stream which runneth between B. in the parish of K. in the county of W. and C. in the same parish and county," was quashed, because it did not appear that the intermediate course of the stream, between the two termini, in which the offence was alleged to be com mitted, was in the county of W., and within the jurisdiction of the committing magistrate. For in R. v. Inhab. of Stepney, Burr. S.C. 23., it was held that those who act under a jurisdiction given by act of parliament must shew their jurisdiction.

Again, the stat. 12 C. 2. c. 24. § 45., giving summary jurisdiction, in offences against the excise, to two or more justices of peace resid ing near to the place where such offence shall be committed, must be understood to be confined to justices of the county wherein the of fence was committed. Therefore, where a defendant was convicted by two resident justices, on stat. 19 G. 3. c. 50. § 2., for having in his custody and possession a private and concealed still for illicit dis tillation; and the evidence only shewed that his house was in the county, and that the still was found concealed in the garden of the said house, such garden not appearing to be in the said county, the conviction was held bad. R. v. Chandler, 14 East, 267. (See antè, p. 697.)

So also, in a conviction for illegally insuring lottery_tickets, against stat. 22 G. 3. c. 47., the information laid the offence in Great Queen Street, in the parish of St. Giles, &c. The evidence was as follows: T. J. deposeth, "That on the 10th of March last he insured personally (not stating where) with the said Jefferies, the defendant, No. 18,433, and paid 2s. 9d., to receive one guinea if drawn blank or prize on the 30th day of drawing." It was ob jected, that the evidence did not prove the offence to be com