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selves upon the immutable principles of common sense, and regardless of denunciation as visionary reformers, they will be content to rest their claims to having faithfully performed their duty, upon the wisdom and intelligence of the people. They are not ignorant of the fact, that their proposed reform will strike at the root of a system, artificial and absurd in itself, and which is only saved from the contempt it merits, by the frequent use of the names of venerable legal authorities, under whose sanction it has grown and ripened into maturity. For what are called the time honored institutions of the past, they entertain a high and becoming regard; but when they are told that the machinery of the law, invented and put in operation in an age of comparative darkness, and permitted to remain, for no other reason than that it was easier to continue its use than to reform it, constitutes an exception to the spirit of the age, whose distinguishing characteristic is advancement and reform, they are compelled to wonder at the blind devotion, which would deny in this respect, the clear and peremptory demand of the public voice. Nor will they allow themselves to believe that absurdities and fictions, so glaring and gross in themselves, as to provoke the laughter and contempt of the intelligent, will be permitted to continue longer than until a safe substitute for them can be found.

The object of pleading, whether in civil or criminal actions, is to inform the parties of the facts alleged by each against the other, with such clearness and distinctness as to enable them to prepare for the trial of disputed facts, or for the application of the law to those which are admitted. Refine as we may, upon the mode of effecting this object, the mos: devoted worshipper of the ancient forms will not deny that this is the only legitimate object of pleading. And in its application to criminal cases, in which no special pleading is required on the part of the defendant, by the code, (except where a former conviction is pleaded, which must be in a brief, prescribed form,) the elements of pleading may be still further condensed into this definition: that it is a statement of a crime imputed to the prisoner, with such a particularity of circumstances only, as will enable him to understand the charge and prepare for his defence, and as will authorise the court,-applying the law to the facts charged,— to give the appropriate judgment upon conviction. Indeed, adopting the definition given by the elementary writers, it

will not be found to vary from that just stated. "In the statement of the indictinent," says Mr. Archbold, "all the ingredients in the offence with which the defendant is charged, the facts, circumstances and intent constituting it, must be set forth with certainty and precision, without any repugnancy or inconsistency; and the defendant must be charged directly and positively with having committed it."

So

Yet, upon this simple definition has been built a superstructure of rules and illustrations, the utter ridiculousness of which is a reproach to legal science. In the first place, it is said, that the indictment must be certain as to the party indicted; by which is meant, that he must be described by his name, or as a person unknown to the grand jurors, in which case something must be stated to ascertain who is intended-He must also be designated by his "mystery," which, according to Mr. Archbold, means his trade, art or occupation. Again, it must be certain as to the person against whom the offence was committed, and as to the time and place of its commission; but according to Mr. Archbold," although time and place must thus be laid with certainty, it never was necessary that it should be laid according to the truth." Archb. Crim. Pl. 9th ed., 40. It must also be certain as to the fact, circumstances and intent, constituting the offence. far as these rules require the facts to be stated with truth, and as they tend to inform the defendant with precision what charge he is called upon to answer, they are certainly unobjectionable. But when we come to see, that according to the existing practice, this certainty means everything but what it would seem to import, astonishment may well be expressed that its continuance should be deemed desirable. The uninitiated in the mysteries of pleading can scarcely conceive, how entirely futile these rules have become, by the mass of fiction in which they are imbedded. The terms "certainty as to the fact, circumstances and intent," would naturally convey to the mind that the information to be given to the defendant is precisely such as should be furnished to him. But instead of that, it is nothing more nor less than a legal creation, which, in its practical operation, is often made the means of defeating justice upon a mere quibble, or of artfully and adroitly concealing from the defendant the nature of the charge against him.

When we are asked, what is meant by certainty, in the sense in which it is used in these rules, we have but to recur

to the author just referred to, for a brief and comprehensive, though it must be confessed not a very satisfactory or intelligible answer. "Certainty" says he, "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 endeavor 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 favor 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." (Arch. Crim. Pl. 9th Ed. 43)

In illustration of this rule, scores of cases, if it were necessary, might be presented, to show to what an absurd length quibbling upon it has been carried, and how often justice has been entirely defeated by its application. A few only will be referred to. Mr. Livingston, in his notes on the criminal code reported by him, gives the following example: "In an indictment for forgery, a stroke of the pen, which occurred in the instrument, had not been copied in the indictment. The prisoner being convicted, his counsel moved in arrest of judgment, and assigned the omission of this stroke for cause. The paper and the indictment were handed up to the bench, and the judge, not being able with the naked eye to discover any difference, had recourse to a glass, and by the aid of a strong magnifier, discovered something which he said was either a tick, (a word of which I do not profess to know the meaning,) or a letter,-which, he would not or could not determine; but submitted it to the jury, with directions, if they found it to be the one, (I forget which,) to convict, if the other to acquit ; and to aid in the determination of this

engaged himself in the effort to reform the modes of criminal procedure; and among the subjects to which he directed his attention, the most prominent was the simplification of the rules of pleading. Instead of the unintelligible subtleties which he found to grow out of the common law rules on the subject, he reduced the art of pleading to a plain, comprehensive and practical system. In place of the mystical terms certainty to a common extent, certainty to a certain intent in general, and certainty to a certain intent in particular," he saw no difficulty in substituting the clear and intelligible rule, that all that was necessary in an indictment, should be that "the act or omission charged be so clearly and distinctly set forth, as to enable a man of common understanding to know what is intended." Liv. Crim. Code, 520, art. 254,

subd. 6.

In more recent times, and in the country from which our legal institutions have been borrowed, the sagacity of our great jurist has been justly appreciated; and as a proof that what has been deemed in the Commissioners, an act of recklessand visionary presumption, has been regarded in that country. as practicable and just, the fact need only to be mentioned, that the British Commissioners, after the fullest consultation with the bench and the bar of that country, have recommended the adoption, almost in terms, of the provision just referto. In their eighth report, p. 76, is embraced the following provision:-"All acts, omissions and eircumstances essential to the offence, must be so plainly, directly and distinctly stated, as to enable a man of ordinary understanding to know what is intended "

Resting upon this weight of authority, to say nothing of the principle involved in the proposition, the Commissioners had expected, though it seems without just reason, that the introduction of this rule into the code of civil procedure, would have met with more favor than it has been its fate to receive. They will, however, permit themselves to indulge the hope, that their attempt to translate into intelligible English, the phrase "certainty to a common intent" may be more favorably appreciated.

In accordance with the views already expressed, the Commissioners have resolved to recommend, that all the forms of pleading in criminal actions, heretofore existing, be abolished, and that hereafter the forms of pleading and the rules by which their sufficiency are to be determined, shall be those

which are prescribed by the code. The rules to be substituted in their place, sec. 291-312, are few and simple, and in the main come recommended by the high authorities to which allusion has just been made. Referring the legislature to the sections themselves, for a more full explanation of them, the Commissioners will content themselves with a brief recapitulation of the principles which they embody.

First; The indictment must contain the title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties, and a statement of the acts constituting the offence, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

Second ;-It must be direct and certain, as it regards the party, and the offence, and the particular circumstances of the offence charged, when they are necessary to constitute a complete offence.

Third-It must charge but one offence, and in one form only; except that where the offence may be committed by the use of different means, the indictment may allege the means in the alternative.

Fourth-The words used must be construed in their usual acceptation in common language, except such words and phrases as are defined by the law, which are to be construed according to their legal meaning.

Fifth ;-Words used in a statute to define a public offence, need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.

Sixth ;-The indictment is sufficient, if it can be understood therefrom, 1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately set forth; 2. That it was found by a grand jury of the county in which the court was held; 3. That the defendant is named, or if his name cannot be discovered, that he be described by a fictitious name, with the statement that he has refused to discover his real name; 4. That the offence was committed at some place within the jurisdiction of the court; except where the act, though done without the local jurisdiction of the county, is triable therein; 5. That the offence was committed at some time prior to the time of finding the indictment; 6. That the act or omission, charged as the offence, is clearly and distinctly set forth, in ordinary and con

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