II. WHAT OFFENCES ARE INDICTABLE.

There can be no doubt, but that all capital crimes whatsoever, and also all kinds of inferior crimes of a public nature, as misprisions, contempts, disturbances of the peace, oppressions, and all other misdemeanors whatsoever, of a public evil example against the common law, may be indicted; but no injuries of a private nature, unless they someway concern the commonwealth. 2 Haw. 210.

Also, it seems to be a good general ground, that wherever a statute prohibits a matter of a public grievance to the liberties and security of a citizen, or commands a matter of public convenience, as the repairing of the common streets of a town; an offender against such statute is punishable, not only at the suit of the party grieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. Yet if the party offending hath been fined to the commonwealth in the action brought by the party (as it is said that he may in every action for doing a thing prohibited by statute) it seems questionable, whether he may afterwards be indicted, because that would make him liable to a second fine for the same offence. 2 Haw. 210.

But if a statute extend only to private persons, or if it extend to all persons in general, but chiefly concern disputes of a private nature, as those relating to distresses made by lords on their tenants; it is said that offences against such statute will hardly bear an indictment. 2 Haw 211.

Also, where a statute makes a new offence, and appoints a particular method of proceeding, without mentioning an indictment, it seemeth to be settled at this day, that it will not maintain an indictment. 2 Haw, 211. Str. 679.

But lord Hale distinguishes upon this, and says, that if a statute prohibit any act to be done, and by a substantive clause gives a recovery by action of debt, bill, plaint, or information, but mentions not an indictment; the party may be indicted upon the prohibitory clause, and thereupon fined, but not to recover the penalty; but then it seems the fine ought not to exceed the penalty; but if the act be not prohibitory, but only that if any person shall do such a thing, he shall forfeit so much, to be recovered by action of debt, bill, plaint, or information, then he cannot be indicted for it, but the proceeding must be by action, bill, plaint, or information. 2 H. H. \7\.

Also, where a statute adds a further penalty to an offence, prohibited by the common law. There can be no doubt but that the offender may be still indicted, if the prosecutor thinks fit, at common law; and if the indictment for such offence conclude, against the form of the statute, and cannot be made good as an indictment upon the statute, it seems to be now settled, that it may be maintained as an indictment at common law. 2 Haw. 211.

A fact amounting to a felony is not indictable as a trespass. I. Raym. 712.

III. WITHIN WHAT TIME AN INDICTMENT SHOULD BE BROUGHT.

All actions, suits, bills, indictments, or informations, which shall be had, brought, sued, or exhibited upon any penal law, where the punishment to be inflicted upon the offender, on conviction, shall neither be death nor imprisonment in the jail and penitentiary house, shall be had, brought, sued, exhibited, or moved, within one year next after the offence committed, and not after; except where a longer or shorter time for the commencement of such suit, or prosecution, is or shall be fixed by law. 2 Rev. Code, p. 80, sect. 2.

Every indictment or information for perjury, subornation of perjury, or such forgeries or publications thereof, as may not be punishable by death, or imprisonment in the jail or penitentiary house, shall be exhibited or moved within three years next after the time of committing the offence, and not after. Ibid. sect. 3.

IV. HOW FAR SEVERAL OFFENDERS MAY BE JOINED IN ONE INDICTMENT.

1. If there be one offender, and several offences committed by him, as burglary and larceny, they may be contained in one indictment. 2 H. H. 173.

In the case of K. and Clendon, there was an indictment setting forth ⚫ that the defendant made an assault upon Sarah Beatniff and Elizabeth Cooper; and did them beat, wound, and evil intreat. After verdict it was moved, in arrest of judgment, that these were two distinct offences, and therefore could not be laid in the same indictment; and of that opinion was the court, and the judgment was arrested. Stra. 870.

But this case has since been denied to be law. See 2 Burr. 984. 2. If there be several offenders that commit the same offence, though in law they are several offences, in relation to the several offenders, yet they may be joined in one indictment; as if several commit a robbery, or burglary, or murder. 2 H. H. 173.

3. And so it is, though the offences are of several degrees, but dependent one upon another, as the principal in the first degree, and the principal in the second degree, to wit, present, aiding and abetting the principal, and accessory before or after. 2 H. H. 173.

4. Also several persons may be indicted in the same indictment for several offences of the same nature, as for keeping disorderly houses; but the indictment ought to set forth that they severally did so. 2 H. H. 173.

And this is only to be understood where the offences may be joint, as in extortion, maintenance, receiving stolen goods, and the like; and not where the offence is a separate act in each, as in the case of K. against Philips and others. Six were indicted in one indictment for perjury; and four of them pleading, were convicted, it was moved, in arrest of judgment, that the crime of perjury is, in its nature, several, and two cannot be indicted together. And by the court, there may be great inconveniencies if this is allowed; one may be desirous to have certiorari, and the other not; the jury on the trial of all may

apply evidence to all that is but evidence against one. And they cited a case, T. 6 An. Q. against Hodgson and others, where two were indicted for being scolds, and compared to barratry, and it was held not to lie. And in the principal case judgment was arrested. Str. 921. In like manner, K. against Weston and others. There was an indictment against six jointly and severally for exercising a trade; and quashed, because there ought to be distinct indictments. Stra. 623. See 4 Burr. 2046. S. P.

But an indictment will lie against several for publicly singing, in the street, libellous songs, reflecting on the prosecutor's son and daughter. 2 Burr. 980.

5. Larcenies committed of several things, though at several times, and from several persons, may be joined in one indictment. 2 H. H. 173. V. WHETHER THE GRAND JURY MAY EXAMINE WITNESSES AGAINST THE COMMONWEALTH.

Lord Hale says that the grand jury ought only to hear the evidence for the commonwealth, and in case there be probable evidence, they ought to find the bill, because it is but an accusation, and the party is to be put on his trial afterwards. 2 H. H 157.

Which doctrine is also laid down by chief justice Pemberton, in the case of the earl of Shaftsbury. St. Tr. vol. 3, p. 415.

But the learned editor of Hale's History, observes upon this, that sir John Hawles, in his remarks upon the said case (St. Tr. vol. 4, p. 183) unanswerably shews, that a grand jury ought to have the same persuasion of the truth of the indictment as a petty jury, or a coroner's inquest; for they are sworn to present the truth, and nothing but the truth. See 2 Hale, 157, note (a.)

And lord Coke says, that seeing indictments are the foundation of all, and are commonly found in the absence of the party accused, it is necessary there should be substantial proof. 3 Inst. 25.

VI. HOW MANY WITNESSES are reqUISITE TO AN

INDICTMENT.

An indictment may be found upon the oath of one witness only, unless it be for high treason, which requires two witnesses. (2 Haw. 256.) And unless in any instance it be otherwise specially directed by act of Assembly. SecTREASON.'

VII. WHETHER THE GRAND JURY MAY FIND AN INDICTMENT SPECIALLY.

It seems to be generally agreed, that the grand jury may not find part of an indictment to be true, and part false; but must either find a true bill, or ignoramus for the whole; and that if they take upon them to find it specially, or conditionally, or to be true for part only, and not for the rest, the whole is void, and the party cannot be tried upon it, but ought to be indicted anew. 2 Haw. 210.

VIII. FORM OF AN INDICTMENT.

In order to understand this matter rightly, it is judged requisite, first, to insert the entire form of an indictinent, and then to take it in pieces, and explain the several parts of it in their order.

The instance which is chosen is on the statute of stabbing. 1 Jac. c. 8.

The caption of the indictment is no part of the indictment itself, but is the style or preamble, or return that is made from an inferior court to a superior, from whence a certiorari issues to remove; or when the whole record is made up in form. 2 H. H. 166.

NOTE. The following indictment is founded on a statute which is not in force in this country. It will, however, equally elucidate the doctrine of indictments, and is given merely for example. It is humbly submitted whether the words included thus [ ] may not now be omitted, on the authority of the laws adduced in support of that opinion. But I give it merely as an opinion, and would by no means wish the profession to depart from precedents long settled and grown venerable by antiquity, without some further and better warrant for such departure.

The caption of an indictment runs thus :

county, to wit.

The jurors for the commonwealth, for the body of the county of upon their oath, do present, That John Armstrong late of Appleby, in the county aforesaid, yeoman, [not having God before his eyes, but being moved and seduced by the instigation of the devil] on the thirtieth day of March, in the year of our Lord at the hour of nine in the afternoon of the same day [with force and arms] at Appleby aforesaid, in the county aforesaid, and within the jurisdiction of the district court aforesaid, in and upon one George Harrison [in the peace of God and of the said commonwealth] then and there being (the aforesaid George Harrison not having any weapon then drawn, nov the aforesaid George Harrison having first stricken the said John Armstrong) feloniously did make an assault, and that the aforesaid John Armstrong, with a certain drawn sword [of the value of five shillings] which he the said John Armstrong in his right hand then and there had and held, the said George Harrison in and upon the right side of the belly, near the short ribs of him the said George Harrison (the aforesaid George Harrison, as is aforesaid, then and there not having any weapon drawn, nor the aforesaid George Harrison then and there having first stricken the said John Armstrong) then and there feloniously did stab and thrust, giving unto the said George Harrison then and there, with the sword aforesaid, in form aforesaid, in and upon the right side of the belly, near the short ribs of him the said George Harrison, one mortal wound of the breadth of one inch, and of the depth of nine inches; of which said mortal wound, he the said George Harrison then and there instantly died, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Armstrong him the said George Harrison, on the aforesaid thirtieth day of March, in the year aforesaid, at Appleby aforesaid, in the county aforesaid, in manner and

form aforesaid, feloniously did kill; against the peace and dignity of the commonwealth, and against the form of the statute in such case made and provided.

The following are the substantial parts of the body of an

late of

indictment.

That [in the county aforesaid, yeoman.] The name of the party indicted regularly ought to be inserted, and inserted truly in every indictment. 2 H. H. 175.

But the inhabitants of a parish may be indicted for not repairing the highway, although no person is particularly named. Wood, b. 4.

c. 5.

It is said that no person indicted can take advantage of a mistaken surname in the indictment, notwithstanding such surname has no manner of affinity with its true one, and he was never known by it. 2 Haw. 230, 1, 2, 3. 2 H. H. 176.

But the mistake of the christian name is pleadable, and the party shall be dismissed from that indictment. Ibid.

But the safest way is to allow his plea of misnomer, both as to his surname and as to his christian name, for he that pleads misnomer of either must in the same plea set forth what his true name is, and then he concludes himself, and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. Ibid.

Also, an indictment naming the defendant by two christian names is not good. L. Raym. 562.

If the county is in the margin, and the indictment sets forth the fact to be done at such a place, in the county aforesaid, it is good, for it refers to the county in the margin; but if there be two counties named, one in the margin, and another in the addition of any party, or in the recital of an act of parliament, the fact laid at such a place in the county aforesaid vitiates the indictment, because two counties are named before, and therefore it is uncertain to which it refers. Crown Cir. 115, 116.

But although the defendant be indicted by a wrong name or addition, or with no addition, yet if he appear, and plead not guilty, without taking advantage of that defect, he shall never alledge the misnomer, or want of addition, to stop his trial or judgment; for by such his appearance, and pleading to issue, the indictment is affirmed, and the misnomer or want of addition salved. 2 H. H. 176.

And if several persons be indicted for one offence, misnomer, or want of addition of one, quashed the indictment only against him, and the rest shall be put to answer; for they are, in law, as several indictments. Ibid. 177.

Not having God before his eyes, but being moved and seduced by the instigation of the devil.....I do not find it asserted by any authority, that these words are necessary in an indictment. On the thirtieth day of March, in the year of.....No indictment can be good, without precisely shewing a certain day of the material facts alledged in it.