different parts of the publication, distinct from each other, they may be introduced thus: In a certain part of which said libel there were and are contained the false, scandalous, malicious, and inflammatory words and matter following, that is to say,' &c. And in a cer

tain other part of which said libel there were and are contained,' &c. A mere literal variance, (that is, where the omission or addition of a letter does not alter or change a word, so as to make it another word), will not be material; as, for instance, reiceved' for 'received,' 'undertood' for understood,' or the like."

"The recital of written instruments, which must be set out verbatim, is usually introduced by the words 'according to the tenor following,' or 'of the tenor following,' or 'in the words and figures following,' or "the false, &c. words and matter following,' or other words which imply that a correct recital is intended. On the other hand, when the substance only is intended to be set out, it should be introduced by such words as 'in substance as follows,' 'to the effect following,' or the like. The word 'tenor' implies that a correct copy is set out.'

"Where words are the gist of the offence, they must be set forth in the indictment with the same particularity as a libel (146): as, for instance, in an indictment for scandalous or contemptuous words spoken to a magistrate in the execution of his office; or for blasphemous or seditious words (147). But if some of the words be proved as laid, and the words so proved amount to an indictable offence, it will be sufficient. Where words are laid as an overt act of treason, it is sufficient to set forth the substance of them; for they are not the gist of the offence, but proofs or evidences of it merely " (147*).

"Where any matter laid in an indictment is to be proved by a record, great care must be taken that the statement correspond exactly with the record” (148).

"The intention of the party, at the time he committed the offence,

(146) See note 144.

is

(147) In cases falling under art. 2, sec. i., Arts. of War, swearing or cursing, or those falling under the art. 21, sec. xii, Arts. of War, speaking words to induce others to misbehave or abandon a post.

(147*) See 3d art., sec. ii., Arts. of War, (begin, excite, cause or join in any mutiny) “As marching with troops to join others in a state of mutiny.”

(148) "The term record is applied to such proceedings of superior courts only, Ct. of Chancery, K. B., C. P., Ct. of Exchq., and does not extend to the rolls of inferior courts; the registeries of proceedings whereof are not properly called records. A record is an authentic testimony in writing, contained in rolls of parchment, and preserved in a court of record. In these rolls are contained the judgment of the court on each case, and all the proceedings previous thereto; carefully registered, and preserved in public repositories, set apart for that purpose."-(Jacob's Law Dic.) The original proceedings of cts.-mar, are kept in the office of the Judge Adv.gen., and are the records of his office, and any person tried is entitled to a copy from that office. See M. A., sec. xxxi. Suppose a soldier who had deserted and been convicted of the crime, was tried for a second act of desertion, and the charge set out that he had before deserted, the fact and conviction would be stated from the original proceedings in the Judge Adv.gen.'s office.

is often a necessary ingredient in it; and in such cases it is as necessary to state the intention in the indictment, as any other of the facts and circumstances which constitute the offence" (149).

"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 accused to have committed or omitted the acts, under the circumstances and with the intent mentioned in the statute (150). 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, or the word 'wilfully' in the statute, and maliciously' in the indictment, (the words advisedly' and 'maliciously' not being also in the statutes respectively,) the indictment would be sufficient. It is much better, however, to pursue strictly the words of the statute (151), as it precludes all question about the meaning of the expressions used. 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 indictment on stat. 37 Geo. III. 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" (152).

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"If there be any exception contained in the same clause of the act which creates the offence, the indictment must show, negatively, that the accused, or the subject of the indictment, does not come within the exception (153). But if an exception or proviso be in a subsequent clause

(149) Suppose the case of desertion. Desertion is a crime, so is absence without Leave. In the former case, the charge would state desertion, that A. B., did absent himself for such a time, and did not return till brought back. There being no intention to return would, in such case, constitute desertion. In the case of absence without lease, the charge would state that A. B. did absent himself without leave, on such a day and did not return till such a day; here the return without force would shew that he did not intend to desert. There might be the intention in the mind, but no act to show such intention.

(150) Such as in the case of art. 1, sec. xi., Arts. of War. Embezzling stores. &c. belonging to the H. E. I. Co. The latter words should be stated in the charge.

(151) See sec. iv., arts. 1, 2, musters, sec. v., art ii., returns. sec. vi., arts. 2. 3. 7. desertion, sec. vii. art. 3, challenges, sec. ii., arts. 1, 2, 3, embezzlement, sec. xii, arts. 1. 16, 21, duties in quarters, &c. sec xiv. art. 26, scandalous, infumous conduct &c. In some statutes are used the words, "being contrary to the form of the statute naming the statute," &c.

(152) See art. 7, sec. vi., Arts of War.

(153) As in art. 5, sec. xii., Arts of War. "that A. B. not being prevented by sickness, or other evident necessity, did not repair, &c. to the place of parade, &c."

clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it need not be negatived in the pleading" (154).

"No part of the indictment must be in figures; and therefore numbers, dates, &c. must be stated in words at length. The only exception to this is, where a fac-simile of a written instrument is to be set out, as in case of forgery; in which case it must be set in the indictment in words and figures, as in the original itself" (155).

31.-Two or more Offences should not be charged in the same Count of the Indictment.

"The accused must not be charged with having committed two or more offences in any one count (156) of the indictment. For instance one count cannot charge the accused with having committed a murder and a robbery, or the like (157). The only exception to this rule is to be found in indictments for burglary; in which it is usual to charge the accused 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; because the charge consists of the compassing, &c., and the overt acts are merely evidences of it (158); and the same as to conspiracy. That the accused 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 (159), because the endeavour is the offence charged. 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." (160).

32.

(154) The term pleading, is usually applied both to the charge of the pltff. and the deft's. defence and more strictly to the latter. The declaration is the statement of the pliff's. cause of action, the deft's. answer is called a plea; the pltff's reply a replication, &c. &c.

(155) Archbold's Crim. Plea., p. 15 to 25.

(156) Article of charge, or accusation.

(157) When a soldier deserts, there is frequently a second charge for carrying away clothing, &c. And in case of mutiny, a second charge for expending so many cartridges.

(158) Thus in mutiny, as in the case of Lieut. col. Johnston, 102d regt. (See case 1, p. 72.) there was only one count or charge" that he did begin, excite, cause and join in a mutiny, by putting himself at the head of the N. S. W. corps and seizing and causing to be seized and arrested, and imprisoning, and causing to be imprisoned, by means of the above-mentioned mil. force, the person of the Govr. Bligh," &c.

(159) Containing more than one fact in the same count. Thus in the case of Serjt. Grant, the charge contained (in one count)" for advising and persuading to desert H. M.'s and enter into the E. I. Co.'s service."-(See the case at art. 7, sec. vi., Arts. of War.)

(160) Archbold's Crim. Plea., p. 25.

32.-The Words of the Indictment must be positive.

Every fact and circumstance stated in an indictment must be laid positively, that is, the indictment must directly affirm that the accused 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. 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" (161).

33.-The Facts in the Indictment must not be repugnant (162).

Where one material part of an indictment is repugnant to another, the whole is void; as, for instance, an indictment charging the accused with stealing the goods of the said J. S., where the name of J. S. was not previously mentioned (163), or in the parish aforesaid, where no parish was before mentioned. If the repugnancy, however, be in an immaterial part, it may, in general, be rejected as surplusage, especially after verdict. But still it is a general rule, that an allegation in pleading (164), 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 videlicet, however inconsistent it may with an allegation subsequent" (165).

34.-Additional Counts how added to Charges, and the Averments how made.

The usual way of making an averment in an indictment, is thus: "And further 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

(161) Archbold's Crim. Plea., p. 26, charges frequently commence with the words " for having deserted, on such a day,” instead of charging, "that A. B., did desert on such a day, having absented himself from his regt., and not having returned till brought back on such a day." In the case of disobedience of ors., the charge would state that A. B. did not do so and so, as directed by gen., &c., ors. of such a date, &c., which ors. direct that, &c.

(162) What is contrary to any thing said before.

(163) In the commencement of charges it is usual to state A. B. confined by C. D. Now in the charge it should be set forth that A. B. did steal a gold watch, &c., the property of C. D., and further that the said A. B., did steal a silver watch, also the property of the said C. D. The name of C. D. being mentioned in the commencement of the charge is not sufficient, it merely shews the confinement of A. B. by C. D., but without the statement or charges the act is not set forth.

(164) In setting out the matter of accusation.

(165) Archbold's Crim. Plea. p. 26.

officer (166); "that A., knowing that B. was indicted for forgery, concealed a witness against him," is a sufficient averment that B. was indicted. So, where an indictment for perjury stated that "at and upon the hearing of the said complaint," the accused deposed, &c., this was holden to be a sufficient averment that the complaint was heard" (167).

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35. Conclusion of the Indictment or Charges.

"An indictment for an offence at common law concludes thus: against the peace of our lord the king, his crown and dignity' (168). 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 an offence (as for instance, a nuisance) commence in the reign of one king, and still continue in the reign of his successor, the indictment should properly conclude, against the peace of both' (169). In charges, the usual conclusion is, 'To the prejudice of good order and military discipline;' or, the same being in breach of the Arts. of War' (170); or, 'all which, or any part thereof being disgraceful to the character of a soldier, and in breach of the Arts. of War;' or any similar terms, derogatory to the character of, prejudicial to, or subversive of military discipline and authority.""-(See more under subsequent chapters).

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36.-Joinder of two or more Persons in one Indictment.

"Where several persons join in the commission of an offence, all, or any number of them, may be jointly indicted for it, or each of them may be indicted separately. Thus, if several commit a robbery, burglary, or murder (171), they may be indicted for it jointly or separately, and the same where two or more commit a battery, or are guilty of extortion, or the like. Two or more cannot be jointly indicted for perjury, or for seditious or blasphemous words, or the like, because such

(166) Suppose a soldier be charged, “that A. B., private in 24th regt., did at such a place, on such a day, commit an act of mutiny by discharging the contents of a loaded musket at C. D. being in the execution of his office." There might be a second count," And further that the said A. B. (without adding regt., &c.), did then and there, (without adding time and place,) make away with a ball cartridge, the property of the Hon. E. I. Co." The word said shows who A. B. is, and the words "then and there" describe the time and place.

(167) Archbold's Crim. Plea., p. 27.

(168) These words are not essential though always used. If against any particular statute, then "against the form of the statute in such case made and provided, and ugainst the peace," &c.-(Archbold's Crim. Plea., p. 28.)

(169) Archbold's Crim. Plea., p. 27.

(170) But the offence should not be described as against any particular art. of the Arts. of War. (Tytler, p. 216).

(171) Or in cases of mutiny, see a case at art. 5, sec. ii., Arts. of War. G.O. H. G. 25th Sept. 1812. Desertion, see a case at art. 1, sec. vi., Arts. of War. G. O. C. C. 12th March, 1817. See more upon this subject in subsequent chapters.