What shall not be sufficient to stay or reverse judgment after the verdict. "against the peace," nor for the insertion of the words, XXI. And be it further enacted, that no judgment after verdict upon any indictment or information for any felony or misdemeanor shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and, that where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute. Note. It is said in a modern treatise, with reference to the words felony begun in one county and completed in another," (see sec. 12) that "if the case of a murder, where the stroke is in one county and the death in another, is not included in those terms, there seems to be the same difficulty about the trial as there was at the common law" Car. Cr. L. 19. It seems difficult, however, to conceive how such a case as that suggested should not be included in those terms. It is true, that Hawkins (relying on 6 Hen. 7, 10, pl. 7) says that in this case the offence is not cognizable by a grand jury of either county, the offence not being complete; that is, not committed entirely in either: 2 Haw. P. C. 220. But here the word " completed" evidently means consummated, and in the case of murder, death consuminates the crime: 1 H. P. C. 426. As to venue and to the forms of indictments in general, see notes on the several titles, and see Archb. 2, et seq. For the mode of laying the property stolen, see tit." Larceny.' For observations on the plea of misnomer, see ante, p. 248. It seems, that though the defects mentioned in section 20 cannot be taken advantage of either by motion in arrest of judgment or by writ of error, yet they may by demurrer: Car. Cr. L. 47. Upon an indictment under Lord Ellenborough's Act, it was objected in arrest of judgment, that it did not state in which hand the prisoner held the weapon; but Gaselee, J., overruled the objection, the fact not being necessary to be proved, and therefore, since the 7 Geo. 4, c. 64, s. 20, not necessary to be laid in the indictment: R. v. Howes and others, Norfolk Lent Assizes, 1827. The following are general rules as to indictments on statutes: Where a statute prohibits any act to be done, and by a substantive clause gives recovery by action of debt, bill, plaint, or information, but mentions not indictment, the party may be indicted upon the prohibitory clause, and thereupon fined. But the fine ought not to exceed the penalty: 1 H. P. C. 171. Where a statute prohibits any act to be done which was before lawful, and appoints in the same clause a particular manner of proceeding against the offender, as by commitment, or action of debt, or information, without mentioning an indictment, no indictment can be maintained: R. v. Wright, 1 Burr. 543. Where a statute prohibits an act to be done which was before unlawful, and prescribes a particular remedy or method for the punishment, yet an indictment lies for it. As to the pleading of private statutes, see 1 Stark. Cr. P. C. 214. An indictment on a penal statute cannot be preferred at the sessions unless the statute gives justices of the peace a power to inquire of the offence: R. v. Buggs, 4 Mod. 379. The court may, in its discretion, quash any indictment, upon motion, for any such insufficiency, either in the caption or body of it, as will make any judgment whatever, given upon any part of it against the defendant, erroneous. And, generally, an indictment is insufficient whereever all the facts charged may be true, and yet the party be innocent. But, though judges are bound to arrest judgment after verdict, if they see the charge to be insufficient, yet they are in no case bound to quash an indictment, but may oblige the defendant either to plead or to demur to it; and this they generally do where it is for a crime of an enormous or public nature, as perjury, forgery, sedition, nuisances to the highways, &c.; nor will the court quash an indictment removed by certiorari, if a recognizance for the trial of it has been forfeited: 2 Haw. P. C. 258; Com. Dig. Indictment; H. 3 Burr. 1698; Burr. 1127; Doug. 240; Salk. 380, pl. 26. It appears, therefore, that the court will seldom quash an indictment on the motion of the defendant. And it seems to have been the uniform practice not to allow the defendant to make this motion after plea pleaded: Holt, 684; but see Comb. 21. It appears, however, that the prosecutor may make this motion at any time before the trial has actually begun, 3 Burr. 1468; but a motion on behalf of a prosecutor, "for leave to quash his own indictment," is by no means a motion of course; more especially, after having put the defendant to expense, or having been guilty of delay: R. v. Webb, 3 Burr. 1469. And after plea pleaded, the court will not quash an indictment on such a motion, before another good indictment be found, R. v. Wymer, 2 East, 226; and then only upon terms, 3 Barn. & Ald. 373. If judgment be given upon an erroneous indictment, it must stand until reversed by writ of error; and, therefore, after judgment, it is too late to move to quash the indictment: 14 Vin. Abr. 399. Clerk of the hibit no in formation for crimes tioned, exeept by or. der of court, nor issue process, till prosecutor has given 201. recog nizance to prosecute. 256 INFORMATION. 4 & 5 W. & M. c. 18. I. Whereas divers malicious and contentious persons have more of late than in times past, procured to be exhibited and prosecuted, informations in their majesties' Court of King's Bench at Westminster, against persons in all the counties of England, for trespasses, batteries, and other misdemeanors, and after the parties so informed against have appeared to such informations, and pleaded to issue, the informers do very seldom proceed any further, whereby the persons so informed against are put to great charges in their defence; and although at the trials of such informations, verdicts are given for them, or a noli prosequi be entered against them, they have no remedy for obtaining costs against such informers: II. Be it enacted, &c., that from and after the first day crown to ex- of Easter term, which shall be in the year of our Lord 1693, the clerk of the crown in the said Court of King's Bench for the time being shall not, without express order above-men- to be given by the said court in open court, exhibit, receive, or file any information for any of the causes aforesaid, or issue out any process thereupon, before he shall have taken or shall have delivered to him a recognizance from the person or persons procuring such information to be exhibited, with the place of his, her, or their abode, title, or profession, to be entered, to the person or persons against whom such information or informations is or are to be exhibited, in the penalty of twenty pounds, that he, she, or they, will effectually prosecute such informations or information, and abide by and observe such orders as the said court shall direct, which recognizance the said clerk of the crown, and also every justice of the peace of any county, city, franchise, or town corporate (where the cause of any such information shall arise), are hereby empowered to take; after the taking whereof by the said clerk of the crown, or the receipt thereof from any justice of the peace, the said clerk of the crown shall make an entry thereof upon record, and shall file a memorandum thereof in some public place in his office, that all persons may resort thereunto without fee; and in case any person or persons against whom any information or informations for the causes aforesaid, or any of them, shall be exhibited, shall appear thereunto, and plead to issue, and that the prosecutor or prosecutors of such information or informations shall not, at his and their own proper costs and charges, within one whole year next after issue joined therein, procure the same to be tried, or if upon such trial a verdict pass for the defendant or defendants, or in case the said informer or informers procure a noli prosequi to be entered; then in any of the said cases the said Court of King's Bench Memorandum to be filed. Defendant shall have costs, if cause not tried within one year after issue joined, &c. is hereby authorized to award to the said defendant and defendants, his, her, or their costs, unless the judge, before whom such information shall be tried, shall at the trial of such information, in open court, certify upon record, that there was a reasonable cause for exhibiting such information; and in case the said informer or informers shall Defendant's not within three months next after the said costs taxed, and remedy for demand made thereof, pay to the said defendant or de- costs. fendants the said costs, then the said defendant and defendants shall have the benefit of the said recognizance, to compel them thereunto. VI. Provided that nothing in this act relating to informa- This act only tions shall extend or be construed to extend to any other extends to informa informations, than such as are or shall be exhibited in the tions by name of their majesties' coroner or attorney in the Court of master of King's Bench for the time being (commonly called the Crown Master of the Crown Office) any thing in the said act contained to the contrary notwithstanding. office. VII. And be it further enacted, by the authority afore- Defendants said, that upon the demise of any king or queen of this (except derealm, all pleas to informations in the said court shall siring) not to plead stand and be good in law, without calling defendants to again upon plead again to the same, unless the defendants desire so to the king's do, and make request to the said courts for that purpose within five months next after such demise, any law or usage to the contrary notwithstanding. Note.-Informations in the name of the master of the Crown Office seem, at common law, to stand on the same footing as those filed, ex officio, by the Attorney General; the distinctions between them arising principally from this statute, and the practice which has subsequently regulated the mode and substance of the proceedings. They are of two classes- those filed against private individuals, and those granted against magistrates, for misconduct in office; but in no case will an information lie for treason or felony. Informations against individuals have been usually granted in cases of aggravated and notorious misdemeanor; but they will lie generally for batteries, Shower, 116; cheats, Shower, 110; 1 Sid. 431; abduction, Cro. Car. 557; March, 52; 3 Keb. 101; and even in cases of abduction, where the demise. Court of Chancery has committed the offender for the contempt: 2 Str. 1107 ; Andr. 310; for seducing a man to marry a pauper in order to exonerate the parish: 1 Wils. 41; 4 Burr. 2106; 2 Lord Ken. 466. However, the court in these cases will now refuse a criminal information, and leave the applicant to his remedy by indictment, Cald. 246, 2 N. P. L. 262; for seducing a woman addicted to drinking to make her will, 2 Burr. 1099; for malicious impressment, 1 W. Bla. 19; for rescue, Shower, 109; for perjuries and subornations, 5 Mod. 342, Sulk. 78; conspiracies, 2 Haw. P. C. c. 26, s. 1 ; libels, if of a very malignant nature, and the prosecutor swears that the allegations are false, 1 Doug. 283,387 riots, 5 Mod. 459; nuisances in neglecting to repair highways, Sir T, Raym. 384; (but this is not usual unless under particular circumstances, 1 Chit. Cr. L. 851, n.) or in obstructing navigable rivers, Shower, 114. Also for attempting to bribe a privy counsellor to procure the reversion of a government office, 4 Burr. 2494; for attempting to bribe at elections, &c., 1 W. Bl. 541, 2 Lord Raym. 1377; for procuring a female apprentice to be assigned, though with her own consent, for purposes of prostitution: 1 W. Bl. 439. Informations have also been granted against individuals, for endeavouring to influence the minds of jurymen by hand-bills and other publications: 4 T. R. 285, 1 B. & A. 379. For more on this subject, see 2 Haw. P. C. c. 26; Bac. Abr. Informations; Williams, J., Information; 1 Chit. Cr. L. 849; Arch. 40. The court will grant a criminal information against magistrates, in cases of gross corruption or tyranny; as, for neglecting to put an act of parliament in execution, from favour and partiality to an individual, 1 Str. 413; for corruptly granting or refusing a license to keep an alehouse, 1 T. R. 692; 3 Burr. 1716, id. 1317; for refusing to relieve burgesses appealing against a poorrate, 2 Lord Ken. 570; for illegally demanding a fee previously to the discharge of the party arrested, and committing him, on his refusal to pay it, 1 Wils. 7; for exceeding their power, in bailing a person accused of felony: 2 Star. 1216. So, also, an information will lie against a justice, for singly taking an examination, preparatory to making an order of removal, and against two others, for requiring the order, as if it had been taken before them all, without either summoning the party, demanding security, or entering into the merits of the question: And. 238; 1 Str. 1092. But the court, in the exercise of its discretion, will frequently refuse an application for a criminal information: in the case of individuals, either because the offence does not require so severe a proceeding, because the party applying is himself culpable, or because the consequences of such a measure would be peculiarly oppressive, 1 Chit. Cr. L. 853; and in the case of magistrates, where they act uprightly, though they mistake the law, R. v. Jackson, 1 T. R. 653; and, generally, the court will be guided by the merits of the applicant, the time of the application, the nature of the case, and the consequences of granting the information: 2 Haw. P. C. c. 26, s. 9. Before a person applies for leave to file a criminal information, he must resign his civil remedy, and drop any action commenced against the defendant, unless the court permit him to do otherwise : 1 Chit. Cr. L. 856. The application is for a rule to shew cause why a criminal information should not be filed against the party complained of, and must be made by a barrister or serjeant: 1 Chit. Rep. 602. In the case of magistrates, the time for making the application is limited: thus, where facts tending to criminate a magistrate took place twelve months before the application to the court, they refused to grant a criminal information, although the prosecutor, in order to excuse the delay, stated that the facts had not come to his knowledge till a very short time before the application, R. v, Bishop, 5 B. & A. 612; and generally the court will not grant an information against a magistrate at the end of the term, so late that cause cannot be shewn before the next, for any misconduct alleged to have taken place before its commencement: 7 T. R. 80. In cases of this kind, it is necessary, in the first instance, to give notice of the motion for the rule nisi; which notice must be served personally on |
