the "towns, or hamlets, or places, and counties of which they were or be, or in which they be or were conversant. These additions should be added after the first name, and not after the alias dictus; although if an addition be given to the name after the alias dictus, it may be rejected as surplusage."

66

Estate and degree mean the same thing, namely, the rank in life of the accused. A duke, marquis, earl, viscount, or baron, must be named by his Christian name only and his name of dignity as, “John, Duke of M.(117). The addition of baronet or knight, must be added to the Christian and surname. Gentleman is a good addition, so is yeoman (118). Mystery means the trade, art, or occupation of the accused; such as merchant, tailor, husbandman, labourer, or the like. If a man have two trades, he may be named of either; but if a man who is a gentleman by birth be a tradesman, he should be named by his worthier addition of gentleman; in all other cases he may be indicted by his addition of degree or mystery, at the option of the prosecutor."

"To widows, the addition of widow; to single women, the addition of spinster; to married women, usually thus," Jane, the wife of John Wilson, late of the parish of C., in the county of B., labourer." The degree or mystery must be stated as that to which the accused was entitled at the time of the indictment (charge); late esquire, late grocer, or the like, would be bad.""

* As to the addition of place (119), the accused must be described as of the town or hamlet (120), or place, and county, of which he was, or is, or in which he is, or was conversant."

"If there be two towns (121) of the same name in the county, but distinguished from each other by additions, as Great Dale, Little Dale, Upper Dale, Lower Dale, or the like, the accused cannot be named of Dale only without addition; but if the towns have no addition to distinguish them, he may" (122).

"If the accused reside in a hamlet out of a town, he may be described as of that; if in a hamlet of a town, he may be described as of either the town or hamlet" (123).

"If the accused reside in a place known by a special name, and not within a town or hamlet, he may be named of such place; but if it be within a town or hamlet, it is safest to name him of the town or hamlet."

(117) Archbold's Crim. Plea., p. 7.

"Besides

(118) So in the army there is the addition of gen., col., lieut.col., maj. capt., &c., j, corp., private, &c., camp-followers, servant, &c.

(119) Station, or cantonment, &c.

(120) Village, &c.

(121) There are two towns in India called Cawnpore, one on the Bengal, the other on the Madras presidency, therefore, in all charges the name of the presidency should be inserted after the town, &c.

(122) Archbold's Crim. Plea., p. 8.

(123) At the village of A., near the cantonment B. &c.

D

"Besides being described of a town, or hamlet, or place, the accused must also be described of the county (124) in which such town, &c. is."

"The accused may be described as late of the parish of B. in the county of C."

"If his place of residence be known, he may be described of it according to the truth; but when it is not known, it is usual to describe him of any parish in the county where the offence was committed."

"In all cases (except as to a peer or peeress) the addition of place goes first: as J. S., late of the parish of B., in the county of S., gentleman.' If you were to describe the accused as merchant of London,' it would be bad, for it does not follow, from this description of him, that he resides there."

"Where a father and son are of the same name, and one of them is indicted, the terms 'the younger,' or 'the elder' (125), are added to his name, for the purpose of more clearly identifying him" (126).

28.-There must be a Certainty as to the Person against whom the Offence was committed.

"In indictments for offences against the persons or property of individuals, the Christian name and surname of the party injured, either his real name or the name by which he is usually known, must be stated, if the party injured be known. No addition is requisite; even where it appears that the party injured has a mother of the same name, it is not necessary to distinguish her in the indictment by the addition the younger.' But where the person injured has a name of dignity, as a peer, baronet, or knight, he should be described by it" (127).

"If, however, the name of the party injured be unknown to the prosecutor, he may be described in the indictment as a person unknown" (128).

29.-There must be a Certainty as to Time and Place.

"Time and place must be added to every material fact in an indictment; that is, every material fact stated in an indictment, must be alleged to have been done on a particular day, and at a particular place (129). As to what are material facts, it is necessary to observe every offence consists of the commission or omission of certain acts

that

(124) Province, Purgunnah (district).

under

(125) If there be two officers in the same regt., of the same Christian and surname and rank, it would be necessary to use the terms senior' or 'junior.' In the case of N. C. O. or private soldiers, &c., it may be necessary to use the term 1st, 2d, or 3d of co. A., regt. B. (126) Archbold's Crim. Plea. p.9.

(127) See note 118, or, trade, occupation, camp-follower, servant, &c.

(128) Archbold's Crim. Plead., p. 10.

(129) This will be explained under the head of the several crimes in the subsequent chapters.

under certain circumstances; and each of these, being a necessary ingredient in the offence, is material, and must be stated in the indictment. An offence of omission, or a mere nonfeasance (130), cannot indeed strictly be said to have been committed at any time or place; and therefore in an indictment for such an offence, the allegation of time and place is in general unnecessary; yet if it be an indictable offence to omit doing an act at a particular time or at a particular place, an indictment for it should undoubtedly shew that it was not done at that time or at that place. But in indictments for offences of commission, every act which is a necessary ingredient in the offence, must be laid with time and place, as abovementioned." In indictments for misdemeanors (131), if time and place be added to the first act, it shall be construed equally to refer to all the ensuing acts. The mere circumstances accompanying these acts, need not be laid with time and place, unless rendered essential by the particular nature of the offence.

"The time laid, should be the day of the month and year upon which the act is supposed to have been committed. A certain day must be stated, and this at present is always the day of the month. The year must also be stated, otherwise the indictment will be insufficient; and the year of the king's reign is usually inserted; but the year of our Lord is equally unobjectionable. In no case is it necessary to state the hour at which the act was done, unless rendered essential by the statute (132) upon which the indictment is framed."

6

“The time and place are usually alleged thus: That J. S. of &c., on the third day of May in the year of our Lord 182-, in the parish of B., in the county of C.' (133); or, in the county aforesaid. 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

(130) "As in not coming to church, &c., which need not be alleged in any certain place; for generally speaking it is not committed any where.”—(Jacob's Law. Dic. See art. 1, sec. i, Arts. of War, Divine worship.)

(151) "A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprebends both crimes and misdemeanors; which, properly speaking, are mere synonymus terms: though, in common usage, the word crimes' is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler names of misdemeanors' only. In the English law, misdemeanor is generally used in contradiction to felony, and misdemeanors comprehend all indictable offences, which do not amount to felony, as perjury, battery, libels, conspiracies, attempts, and solicitations to commit felones, &c."-(Blackstone, vol. iv., p. 5.)

(132) As for instance in the case of art. 7, sec. xiv., Arts. of War, holding a ct.martial excepting between the hours of six in the morning, and four in the afternoon, except in cases which require an immediate example.

(133) See notes 119, 120, 121.

and year, &., to every act. The time and place, however, must be laid with certainty (134).

"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 (135), a variance between the indictment and evidence in the time when the offence was committed, or in the place where committed, provided the place proved be within the jurisdiction of the court, is not material"(136).

30.-There must be a Certainty 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 accused 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, common robber, &c.; 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" (137). "Every fact and circumstance which is not a necessary ingredient in the offence, should be rejected, and in indictments for trifling offences all circumstances of gross aggravation, contrary to the truth, be avoided" (138). "And all the facts and circumstances, which constitute the offence, must be stated with certainty and precision, that the accused may be enabled to judge whether they constitute an indictable offence or not, in order that he may demur (139) 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 (140); and that there may be no doubt

(134) See note 129.

(135) See M. A., sec. ii., p. 4. sec. xvii., p. 8. sec. xxxvi., p. 10. sec. lvii, p. 14. sec. lxi., p. 18. (136) Archbold's Crim. Plea., p. 11, 12, 13, 14. (137) This will be explained under the head of the several crimes in the subsequent chapters.

(138) Such as charging conduct “unbecoming an officer,” as “ conduct scandalous, infamous," &c. See act. 26, sec. xiv., Arts. of War.

(139) "A pause or stop, put to any action upon a point of difficulty, which must be determined by the court, before any further proceedings can be had therein: for in every action the point of controversy consists either in fact or in law; if in fact, that is tried by the jury; but if in law, that is determined by the court."—(Jacob's Law Dic.)

(140) Except in the cases described by the M. A., sec. xvii, where an officer, &c.

doubt as to the judgment which should be given, if the accused be convicted."

"Certainty to a certain intent in general, however, is all that is required. The ct., however, will construe the words of the pleading according to their ordinary and usual acceptation, and technical terms according to their technical meaning. And if the sense of a word be ambiguous in the ordinary acceptation of it, it shall be construed according as the context and subject matter require it to be, in order to render the whole consistent and sensible: thus the word 'until' may be construed inclusive or exclusive of the day to which it is applied, according to the context and subject matter" (141).

"Mere matter of inducement, however, does not require so much certainty as the statement of the gist (142) of the offence. So, where the offence cannot be stated with complete certainty, it is sufficient to state it with as much certainty as it is capable of. As in the case of a conspiracy to defraud a person of goods, it is not necessary to describe the goods, as in an indictment for stealing them; stating them as 'divers goods' has been holden sufficient. So, in an indictment for soliciting and inciting another to commit an offence, it is not necessary to state the offence contemplated, with the same degree of certainty as in an indictment for the offence itself (143), even, it should seem, although the offence were afterwards actually committed."

"Written instruments, where they form a part of the gist of the offence charged, must be set out verbatim. In an indictment for a libel, the libellous matter must be set out verbatim (144); for sending a threatening letter, the letter must be set out verbatim; for not executing a warrant, the nature and tenor of the warrant must be shown" (145).

"Where part only of a written instrument is included in the offence, that part alone is necessary to be set out. As where some parts of a publication are libellous and others not, it is only necessary to state those parts containing the libel; and if the libellous passages be in different

tried by a court of law, may be afterwards tried by a ct.-mar. for the same offence, and those in art. 2, sec. x., Arts. of War, appeals from regt. to gen. cts.-mar.

(141) The words theretofore mean before that time,—heretofore before this time. From the day of the date, may include or exclude the day of the date, inuendoes, iranical expressions, asterisms, initial letters, &c., may, in connexion with other expressions, explain their meaning:-thus, k―g (meaning the king)—r—1 (meaning rayal), c—n (meaning crown).-(Howell's St. Tr., vol. xx., p. 806 to 9.)

(142) “ Gist of action, is the cause for which the action lieth, the ground and foundation thereof."-(Jacob's Law Dic.)

(143) Such as persuading a soldier to desert, art. 7, sec. vi., Arts. of War. (144) As in art. 1, sec. ii., Arts. of War, traiterous or disrespectful words against the kaz, &c., and particularly, in the cases falling under the art. 26, sec. xiv., Arts. of War, scandalous, infamous conduct, &c., and in cases under art. 1, sec. xi., Arts. of War, embezzling, &c.

(145) In the case of disobedience of orders, the nature and tenor of the order should be stated.