crime of murder which makes it petit treason be not proved, the defendant may still be found guilty of the murder: burglary is laid to have been done "feloniously and burglariously, and with intent to commit a particular felony; murder, "feloniously and of his malice aforethought;" 2 Hale, 184, 187: forgery, "feloniously" (if made felony by statute) and with intent to defraud, &c.

Where a statute takes away the benefit of clergy from a common law felony, if committed under particular circumstances, an indictment for the offence, in order to oust the defendant of clergy, must expressly charge it to have been committed under these circumstances, and must state the circumstances with certainty and precision. 2 Hale, 170.

Lastly, as to indictments for offences created by statute: the statute contains a definition of the offence; and the offence consists of the commission or omission of certain acts, under certain circumstances, and in some cases with a particular intent. An indictment, therefore, for an offence against the statute, must, with certainty and precision, charge the defendant to have committed or omitted the acts, under the circumstances and with the intent, mentioned in the statute; and if any one of these ingredients in the offence be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict; see 2 East, 333; nor will the conclusion contra formam statuti cure it. 2 Hale, 170. and see 8 T. R. 536. Com. Dig. Information, D. 3. Thus an indictment upon stat. 5 El. c. 11. s. 2. (which makes it high treason to clip, round, or file any of the coin of the realm, "for wicked lucre or gains' sake,") must charge the offence to have been committed for the sake of wicked lucre or gain, otherwise it would be bad, 1 Hale, 220, So an indictment on that part of the black act which makes it felony "wilfully and maliciously," to shoot at any person in a dwelling house or other place, was holden bad, because it charged the offence to have been done "unlawfully and maliciously," omitting the word "wilfully;" R, v. Davis, Leach, 556: some of the judges indeed thought that "maliciously" included "wilfully;" but the greater number held, that as wilfully and maliciously were both mentioned in the statute as descriptive of the offence, both must be stated in the indictment. So, where an indictment on stat, 15 G. 2. c. 34. & 14 G. 2. c. 6. (which make it felony without benefit of clergy to steal any cow, ox, heifer, &c.) charged the defendant with stealing a cow, and in evidence it was proved to be a heifer, this was holden to be a fatal variance; for the statute having mentioned both cow and heifer, proved that the words were not considered by the legislature as synonimous. R.v. Cooke, 2 East, P. C. 617, Leach, 123. See also 1 Camp.212. But where a word not in the statute, is substituted in the indictment for one that is, and the word thus substituted

is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. As, for instance, if the word “knowingly” be in the statute, and the word "advisedly” substituted for it in the indictment, 1 B. & P. 181, or the word “wilfully" in the statute, and “maliciously" in the indictment, (the words “advisedly” and "maliciously" not being also in the statutes respectively, vide supra) the indictment would be sufficient. It is much better however to pursue strictly the words of the statute, as it precludes all question about the meaning of the expressions used; besides the court, in favorem vitæ, are sometimes inclined to listen to and countenance very nice distinctions upon the subject. Thus an indictment on stat. 2 G. 2. c. 25, (which makes the stealing of "bank notes" felony) charging the defendant with stealing “a certain note commonly called a bank note," was holden bad, because it did not follow the description of property in the statute. R. v. Craven, 2 East, P. C. 601,602. See also the cases above mentioned. And pursuing the words in the statute is in general sufficient; unless indeed they be generic terms, in which case it is necessary to state the species, according to the truth of the case. Thus, in an indict ment on stat. 37 G. 3. c. 70, (making it felony to endeavour to seduce a soldier or sailor from his duty) it is sufficient to charge an endeavour, &c. without specifying the means employed. 1 B. & P. 180. But where a statute, for instance, makes the maliciously killing of cattle a felony, it is not sufficient in an indictment on the statute to charge the defendant with killing "cattle" generally, but the species of cattle, as horse, mare, gelding, cow, heifer, ox, &c. must be stated, And where the

subject of the indictment cannot be brought within the meaning of the statute without the aid of extrinsic evidence, it is necessary, besides charging the offence in the words of the statute, to aver such facts and circumstances as may be necessary to bring the matter within the meaning of it: as, for instance, where by the usage of a public office the bare signature of a party upon a navy bill operated as a receipt, an indictment for forging such a receipt, setting forth the navy bill and indorsement, and charging the defendant with having forged "a certain receipt for money, to wit the sum of £25 mentioned and contained in the said paper called a navy bill, which forged receipt was as follows, that is to say,-William Thornton, William Hunter," was holden bad, because it did not shew by proper averments that these signatures imported a receipt. R.v. Hunter, 2 Leach, 624, 2 East, P. C. 928. In like manner it was holden that an indictment for forging the word "settled" at the bottom of a bill, must shew by proper averments that it is a receipt. R. v. Thompson, 2 Leach, 910. See further on this subject, Arch. Pl. & Ev. 93. 140. The statute itself need not be recited. See Arch. Pl. & Ev. 140.

If there be any exception contained in the same clause of the act which creates the offence, the indictment must shew, negatively, that the defendant or the subject of the indictment does not come within the exception. I T. R. 141. 15 East, 456. 1 East, 643. 6 T. R. 559. and see 5 T. R. 83, Leach, 580, 2 East, P.Ć. 782. 1 Barn. & Ald. 362. Arch. Pl. & Ev. 141. But if an exception or proviso be in a subsequent clause or statute, 1 T. R. 320, or, although in the same section, yet if it be not incorporated with the enacting clause by any words of reference,1 Barn. & Ald. 94, it is in that case matter of defence for the other party, and need not be negatived in the pleading. Before we conclude this part of our subject, it may be necessary to observe that no part of the indictment must be in figures; and therefore numbers, dates, &c., must be stated in words at length. 2 Hale, 170. The only exception to this is, where a fac simile of a written instrument is to be set out, as in the case of forgery; in which case, it must be set out in the indictment in words and figures, as in the original itself. R. v. Mason, 1 East, 180.

In conclusion: if all the ingredients in the offence (whether it be an offence at common law or one created by statute) be not set forth in the indictment, or if any of them be not stated with sufficient certainty, the defendant may demur, move in arrest of judgment, or bring a writ of error. See R. v. Mason, 2 T. R. 581. If, on the other hand, the offence be well laid, but there be a material variance between the offence as laid, and the evidence offered to support it, the defendant must be acquitted.

It must not be double.] The defendant must not be charged with having committed two or more offences in any one count of the indictment; for instance, one count cannot charge the defendant with having committed a murder and a robbery, or the like. The only exception to this rule is to be found in indictments for burglary, in which it is usual to charge the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended. Laying several overt acts in a count for high treason, is not duplicity, Kelyng, 8, because the charge consists of the compassing &c., and the overt acts are merely evidences of it; and the same, as to conspiracy. That the defendant published and caused to be published a libel, is not double, for they are the same offence. So, a count in an indictment charging a man with one endeavour to procure the commission of two offences, is not bad for duplicity, because the endeavour is the offence charged. 1 B. & P. 181. And it is now generally understood that a man may be indicted for the battery of two or more persons, in the same count, without rendering the count bad for duplicity. 2 Bur.984. see 2 Str. 870, 2L.Raym.1572. cont.

In civil actions, the usual mode of objecting to pleadings for duplicity, is by special demurer; it is cured by general demurrer, or by the defendant's pleading over. See Arch. Pl. & Ev. 96. In criminal cases the defendant may object to it by special demurrer, perhaps upon a general demurrer, or the court in general, upon application, will quash the indictment; but it is extremely doubtful if it can be made the subject of a motion in arrest of judgment or writ of error; and it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other.

It must be positive.] Every fact and circumstance stated in an indictment, must be laid positively, that is, the indictment must directly affirm that the defendant did so and so, or that such a fact happened under such and such circumstances; it cannot be stated by way of recital," that whereas" &c., or the like. 2 Hawk. c. 25. 60. 1 Show. 337. 1 Salk. 371. 2 L. Raym. 1363. As, for instance, where an indictment for not obeying a Justice's order, set forth the order by way of recital, "that whereas a certain order," &c., although it charged the not obeying the order positively, it was holden bad. R. v. Crowherst, 2 L. Raym. 1363. So, stating a matter by way of argument or inference, would render the indictment bad; as, for instance, that by a certain indenture testatum existit that J. S. demised &c.; and this, perhaps, even in mere matter of inducement, although in one case the contrary certainly has been decided. 3 Salk. 171.

A defect in these respects is not cured by verdict; and consequently the defendant may take advantage of it by demurrer, motion in arrest of judgment, or writ of error.

It must not be repugnant.] Where one material part of an indictment is repugnant to another, the whole is void: as, for instance, an indictment charging the defendant with forging a bond by which J. S. was bound, &c. (which is impossible if the writing be forged); or with disseising A, and it appear upon the face of the indictment that A. had but an estate for years; 2 Hawk c. 25. s. 62; with stealing the goods of the said J. S., where the name of J. S. was not previously mentioned, Id. &. 72, or in the parish aforesaid, where no parish was before mentioned; Ante, p. 13; for forging a bill of exchange, stating it to be signed by the party whose signature was alledged to be forged, 2 East, P. C. 985, or the like. If the repugnancy

however be in an immaterial part, it may in general be rejected as surplusage, especially after verdict. Bac. Abr. Pleas, I. 4. But still it is a general rule, that an allegation in pleading, which is sensible and consistent in the place where it occurs, and not repugnant to antecedent matter, cannot be rejected as surplusage, though laid under a videlicit, however

inconsistent it may be with an allegation subsequent. 5 East, 244. See Arch. Pl. & Ev. 112, 113.

Averments how made.] The usual way of making an averment ment in an indictment, is thus: "And the jurors aforesaid upon their oath aforesaid, do further present that," &c., or if it be connected with what has immediately preceded it, it may be introduced simply thus, " And that," &c., then proceeding to state the matter of the averment. But when the matter of the averment is but a mere adjunct of some person or thing preceding, it does not require even this technical mode of introducing it: thus, "that A. being an officer," &c., is a sufficient averment that A. was an officer; see 2 Ro. Rep. 226. 2 Bur. 832. 864. 3 Id. 1232. 2 Hawk. c. 25. s. 112; "that A., knowing that B. was indicted for forgery, concealed a witness against him," is a sufficient averment that B. was indicted; Fitzg. 122. 263 ; So, "dans plagam mortalem," 5 Co. 120. March. pl. 127, or "sciens that," &c. 2 Str. 904, is a good averment. So, where an indictment for perjury stated that "at and upon the hearing of the said complaint," the defendant deposed, &c., this was holden to be a sufficient averment that the complaint was heard. 1 T. R. 10.

3. Conclusion of the Indictment.

For an offence at common law.] An indictment for an offence at common law, concludes thus : Against the peace of our Indictments for nui

Lord the King, his crown and dignity. sance usually conclude, "to the great damage and common nuisance of all the liege subjects of our said Lord the King," &c., as well as "against the peace," &c. ; but this conclusion ad commune nocumentum, does not seem to be essential.

The words "against the peace of our Lord the King," however, seem to be essential in all cases, 2 Hale, 188. Cro. Jac. 527. Cro. Car. 584. 6 Mod. 128, excepting in indictments for nonfeasance, 1 Vent. 108, 111. I Salk. 381; and even in these they are uniformly used: "against the peace," without saying "of our Lord the King," would be insufficient. 2 Hale, 188. If the offence were committed in the reign of the late King, the indictment should conclude," against the peace of our Lord the late King," &c.; if "of our Lord the King," or "of our Lord the now King," it would be bad, 2 Hale, 189, and the defendant might move in arrest of judgment, 3 Bur. 1901, or bring a writ of error. Contra pacem nuper regis et regis nunc, might answer in such a case, Yelve. 66, because the words" et regis nunc" might be rejected as surplusage; on the other hand, if an offence (as for instance a nuisance) commence in the reign of one king, and still continue in the reign