terial act mentioned in the indictment must be stated to have been committed in such a place. If a city or town contain two or more parishes, the parish must be stated; if, on the contrary, a parish contain two or more towns, and the offence have been committed in one of the towns, the town must be stated. In London it is usual to name the ward as well as the parish; thus," in the parish of Saint Mary-le-bow in the ward of Cheap," but this, it seems, is not requisite. 2 Hawk. c. 23. s, 92. Nor need the hundred, in which the parish, &c. is situate, in other cases, be mentioned. Id. Also, besides the parish or place, the county (or the city, borough, or other part of the county to which the jurisdiction of the court is limited), in which such parish or place is situated, must also be stated; and the county, &c. so stated, must be the same as that stated as venue in the margin of the indictment. See 2 Hale, 180. Indictments for offences within the admiral's jurisdiction (see ante, p.4.) must allege each act to have been done "on the high sea;" and it is usual to add “within the jurisdiction of the admiralty of England;" sometimes the place or land near which the offence was committed, is also stated; but this is not necessary.

"Time and place are usually alleged thus: That J.S. of, &c. on the third day of May, in the second year of the reign of our sovereign lord George the fourth, in the parish of B. in the county of C." or "in the county aforesaid," (See 3 P.Wms. 439.) referring to the county in the margin. And if all the acts constituting the offence be supposed to have been done at the same time, it is sufficient (to all but the first) to allege time and place by the words "then and there," referring to the time and place mentioned to the first act, without saying "on the day and year aforesaid, at the parish aforesaid, in the county aforesaid,' or repeating the day and year, parish and county, to every act. The time and place however must be laid with certainty; and therefore where the indictment described the defendant as late of W. and laid the offence to have been committed "in the parish aforesaid" (there being no parish before mentioned, W. not having been described as such), the court arrested the judgment, R. v. Matthews, 5 T. R. 162, So, where the indictment described the place as being "in the county aforesaid," where there were two different counties before mentioned, it was holden bad, although one of the counties was mentioned in the defendant's addition merely. 1 Ro. Rep. 223. the same, if it laid the offence to have been done on the day and year aforesaid, and there were no day and year, or two different days, &c. before stated. So, if it lay it to have been done on a day certain, "and on divers other days and times," it will be bad for uncertainty, see 6 East, 395, unless it be for an offence which may have continuance, such as false imprisonment, see 2 B. & P. 425, nusance, or the like; at least such is

And

the rule in declarations, and à fortiori, it should seem, in indictments. See 10 Mod. 335. 4 Id. 101.

If no time or place be stated, or if the time or place stated be uncertain or repugnant, the defendant may demur, or move in arrest of judgment, &c.; for the defect is not cured by verdict; see 5 T. R. 162. 2 Hawk. c. 25. s. 77. Yelv. 94. Cro. El. 97, 98. Cro. Car. 525. Arch Pl. & Ev. 101. 105; the statutes of Jeofail, which cure the defect in civil cases, not extending to criminal proceedings. So, if there be no such place in the county as that laid in the indictment, the indictment is expressly declared to be void by stat. 9 H. 5. st. 1. c. 1. see 3 Camp. 73.

But although time and place must thus be laid with certainty, it is not necessary it should be laid according to the truth; for if the time stated be previous to the finding of the indictment, and the place be within the county or other extent of the court's jurisdiction, a variance between the indictment and evidence in the time when the offence was committed, Kelyng. 16. 2 Inst. 318. 3 Inst. 230. 1 T. R. 70, 71, or in the place where committed, provided the place proved be within the jurisdiction of the court, 2 Hawk. c. 25. s. 84, is not material; and for this reason, in practice, all the facts in an indictment are usually stated to have occurred at the same time and place, time and special venue being laid as to the first fact, and afterwards referred to by the words "then and there," as to the others. There are some exceptions however to this rule. 1. The dates of bills of exchange and other written instruments, must be truly stated. 2. Deeds must be pleaded either according to the date they bear, or to the day on which they were delivered. 3. If any time stated in the indictment, is to be proved by matter of record, it must be truly stated. 4. If the precise date of a fact be a necessary ingredient in the offence, it must be truly stated. 5. If the statute upon which the indictment is framed, give the penalty to the poor of the parish in which the offence was committed, the parish must be truly stated. 6. Where a place named is part of the description of a written instrument, or is to be proved by matter of record, it must be truly stated. 7. If the place where the fact occurred be a necessary ingredient in the offence, it must be truly stated: and the slightest variance in these several respects, between the indictment and evidence, will be fatal, and the defendant must be acquitted. See Arch. Pl. & Ev. 331-334. And lastly, where a time is limited for preferring an indictment, the time laid should appear to be within the time so limited. Also, in an indictment for murder, the death should be laid on a day within a year and day from the time at which the stroke is alleged to have been given.

What is above mentioned as to place, relates merely to special venue, and must be carefully distinguished from place

when stated as matter of local description; for where a place is stated as matter of local description, the slightest variance between the description of it in the indictment and the evidence, will be fatal. Thus, for instance, in indictments for stealing in the dwelling house, &c. for burglary, arson, shooting into a house with intent to kill, or for forcible entry or the like, if there be the slightest variance between the indictment and evidence in the name of the parish or place where the house is situate, or in any other description given of it, it will be fatal.

It must be certain as to the facts, circumstances and intent constituting the offence.] Every offence consists of certain acts done or omitted, under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it, as that he murdered J. S., or stole the goods of J. S., or committed burglary in the house of J. S., or the like, but all the facts and circumstances constituting the offence must be specifically set forth. So the offence must appear upon the face of the indictment to be a distinct substantive offence: you cannot charge a man with being a common thief, a common champertor, conspírator, common malefactor, or common robber; but if he have committed a larceny, robbery, &c. the indictment must set forth every fact and circumstance which is a necessary ingredient in the offence. Thus, an indictment for extortion, charging that the defendant took extorsively for every horse so much, and for every twenty sheep so much, was holden bad, because it charged the defendant with exortion generally, and not upon any particular occasion. 4 Mod. 103. So, that the defendant was a calumniator, and a common and turbulent breaker of the peace, &c. was holden bad, for the same reason. 2 Str. 849. 1246. And the same, where a constable was indicted for behaving badly and negligently in the execution of his office, without specifying any particular instance of negligence, &c. 1 Str. 2. only exceptions to this rule are, 1. That a man may be indicted for being "a common barretor," without detailing the particulars of the barretry. 2. That a woman may be indicted for being "a common scold," without detailing the particulars of her conduct. 3. That a person may be indicted for keeping a common gambling house or bawdy house, without stating those circumstances which it may be necessary to give in evidence to shew that it is a house of that description. See 2 Hawk. c. 25. s. 57, 59. 4. That in an indictment for soliciting or inciting to the commission of a crime, 2 East, 4, or for aiding and assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance. In all other cases, every fact or circumstance which is a necessary ingredient in the offence, must be set forth in the indictment.

The

And if any fact or circumstance which is a necessary ingredient in the offence be omitted in the indictment, such omission vitiates the indictment, and the defendant may avail himself of it by demurrer, motion in arrest of judgment, or writ of error. Thus, an indictment for assaulting an officer in the execution of process, without shewing that he was an officer of the court out of which the process issued; 5 East, 304; for contemptuous or disrespectful words to a magistrate, without shewing that the magistrate was in the execution of his duty at the time; Andr. 226; against a public officer for nonperformance of a duty, without shewing that he was such an officer as was bound by law to perform that particular duty; Quod exoneravit tormentum dans plagam, without saying percussit; 5 Co. 122 b.; that he feloniously did lead away a horse, &c., without saying "take;" 2 Hale, 184: in all these and the like cases, the indictment is bad, and the defect may be taken advantage of in the manner above mentioned.

Every fact and circumstance laid in an indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial; also, if there be any defect in the manner of stating such matter, the defect will not vitiate the indictment. 4 Co. 41 a. 5 Co. 121. b. There is a custom of stating, in indictments for trifling offences, circumstances of gross aggravation, contrary to the truth, which are at least useless, and should be avoided.

And not only must all the facts and circumstances, which constitute the offence, be stated, but they must be stated with such certainty and precision, that the defendant may be enabled to judge whether they constitute an indictable offence or not, in order that he may demur or plead to the indictment accordingly, that he may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly,-that he may be enabled to plead a conviction or acquittal upon this indictment, in bar of another prosecution for the same offence,-and that there may be no doubt as to the judgment which should be given, if the defendant be con❤ victed. See R. v. Horne, Cowp. 672. Therefore in indictments for burglary, arson, and stealing in the dwelling house, shop, or warehouse, &c. a local description of the house, &c. must be given, namely, the parish or place and county in which it is situate: in indictments for obtaining money by false pretences, the false pretences must be specified: 2 T. R. 581. 2 Str, 1127: in an indictment against a person for not serving the office of constable, the mode of election must be set out, to shew that he was legally elected; for if he were not legally elected, he cannot be guilty of a crime in not serving: 5 Mod. 96: an indictment for extortion must shew what fee was due, or that nothing was payable, 3 Leon. 268, as well as the fee exacted: an indictment for stopping up the King's highway, must specify what part. Show. 389. Also, for the same reasons, if the

indictment charge the defendant with one or other of two offences, in the disjunctive, as that he murdered or caused to be murdered, forged or caused to be forged, 2 Hawk. c. 25. s. 58. 1 Salk. 342, 371, levavit vel levari causavit, 2 Str. 200, conveyed or caused to be conveyed, &c. Hardw. 370, it is bad for uncertainty; and the same, if it charge him in two different characters, in the disjunctive, as, quod A. existens servus sive deputatus, took, &c. 2 Ro. Rep. 263.

Certainty to a certain intent in general, however, is all that is required. Co. Lit. 303. a. 5 Co. 121 a. See Arch. Pl. & Ev. 108. Certainty is of three kinds : certainty to a certain intent in every particular, which is required only in pleas &c, of estoppel, and pleas in abatement; certainty to a common intent, which is required in ordinary pleas; and certainty to a certain intent in general, which is required in declarations and indictments. The latter is a medium between the other two; not so great a degree of certainty as the first, and a greater degree of certainty than the second. I shall endeavour further to define them. Where certainty to a certain intent in every particular is required, the court will presume the negative of every thing the pleader has not expressly affirmed, and the affirmative of every thing the pleader has not expressly negatived; or, in the words of Lord Coke, the pleader must exclude every conclusion against him. Where certainty to a common intent only is required, the court will presume in favour of the pleader, every proposition which by reasonable intendment is impliedly included in the pleading, though not expressed; and where words are made use of, which admit of a natural sense, and also of an artificial one, or one to be made out by argument or inference, the natural sense shall prevail. Thus, if a plea state that the master and fellows of a college were seised in fee, it shall be intended in right of the college; Plowd. 102; if a man plead a feoffment, livery shall be intended, because it would not otherwise be a feoffment; Co. Lit. 303. b. Cr. El. 401; or if he plead an assignment of dower, it shall be intended by metes and bounds, for otherwise it would not be a legal assignment. Bro. Pleader, 145. Cro. Car. 162. See Arch. Pl. & Ev. 209–211. Common intent, however, is a rule of construction only, and not of addition; it cannot add to a sentence, words which are not impliedly included in it; and therefore in trespass, if the defendant plead a release, without shewing at what time it was made, the court cannot presume that it was made after the trespass, Plowd. 46. a. unless the particular trespass be specially mentioned in it. Certainty to a certain intent in general, being a medium between the two degrees of certainty above mentioned, may be inferred from what has just now been said respecting them; and it should seem therefore, that in cases where it is required, every thing which the pleader should have stated, and which