And if the offence be done in the night, before midnight, the indictment shall suppose it to be done in the day before; and if it happen after midnight, then it must say it was done that day after. Lamb.

4.92.

And although the day be inserted, yet if the year is not inserted, the indictment is insufficient. 2 H. H. 177.

But where an indictment charges a man with a bare omission, as the not scouring such a ditch, it is said that it needs not shew any time. 2 Haw. 236.

And if it say, on such a day last past, without shewing in what year, that is good enough; for the certainty may be found out by the stile of the session. Lamb. 491.

But though the day of the year be mistaken in the indictment, yet if the offence were committed in the same county, though at another time, the offender ought to be found guilty: but then it may be requisite, if any escheat or forfeiture of land be conceived in the case, for the petit jury to find the true time of the offence committed; and therefore it is best in the indictment to set down the time as truly as can be, though it be not of absolute necessity to the defendant's conviction. 2 H. H. 179.

And this the rather, because the jury are to find the indictment upon their oaths. Dalt. c. 184.

Upon which ground, namely, because the jury are sworn to present the truth, it is best to lay all the facts in the indictment as near to the truth as may be.

At the hour of nine in the afternoon of the same day..... It is not necessary to mention the hour in an indictment, except for burglary. 2 Haw. 235.

With force and arms..... These words are not now necessary. 1 Rev. Code, p. 105, sect. 22.

But yet, where such words are proper and pertinent, it is safe and adviseable to insert them, if it be to no other purpose than to aggravate the offence. 2 Haw. 242.

At Appleby aforesaid, in the county aforesaid.....No indictment can be good, without expressly shewing some place wherein the offence was committed, which must appear to have been within the jurisdiction of the court. Ibid. 236.

But a mistake in the place will not be material upon the evidence, on not guilty pleaded, if the fact be proved at some other place in the same county. Ibid. 237.

And it is not sufficient that the county be expressed in the margin, but the vill where the offence was committed must be alledged to be in the county named in the margin, or, in the county aforesaid, which seems to be sufficient where but one county is named before, but to be uncertain where a county is named in the body of the indictment, different from that in the margin. (Ibid. 220. 2 H. H. 180.) But the vill, parish, &c. need not now be named. 1 Rev. Code, p. 105, sect.

23.

In and upon one George Harrison.....Wherever the person injured be known to the jurors, his name ought to be put in the indictment 2 Haw. 232.

But if they know not his name, an indictment for the murder of a person unknown, or for stealing the goods of a person unknown, is good. 2 H. H. 181.

Also, there is no need of an addition of the person upon whom the offence is committed, unless there be a plurality of persons of the same name; neither is it essential to the indictment, though sometimes it may be convenient for distinction sake to add it. Ibid. 182.

In the peace of God, and of the commonwealth, then and there being.... It is usual to alledge this, but not necessary, and possibly not true, for he might be breaking the peace at the time. Ibid. 186.

The aforesaid George Harrison not having any weapon then drawn, nor the aforesaid George Harrison having first stricken the said John Armstrong..... An indictment, grounded upon an offence made by statute, must by express words bring the offence within the substantial description made in the statute; and those circumstances mentioned in the statute to make up the offence shall not be supplied by the general conclusion, against the form of the statute. Ibid. 170.

And so it is, if a statute oust clergy in certain cases, as murder of malice forethought, robbery in or near the highway, though the offences themselves were at common law, yet because at common law within clergy, they shall not be ousted of clergy, though convicted, unless the circumstances, as of malice forethought, or near the highway, be expressed in the indictment. Ibid. 170.

But there is no necessity in an indictment on a public statute, to recite such statute; for the judges are bound, ex officio, to take notice of all public statutes. 2 Haw. 245.

Yet if the prosecutor take upon him to recite it, and materially vary from a substantial part of the purview of the statute, and conclude, against the form of the statute aforesaid, he vitiates the indictment. Ibid. 246.

So, the misrecital of the title of a statute is fatal. Ibid. 247.

Feloniously did make an assault.....There are several words of art which the law hath appropriated for the description of the offence, which no circumlocution will supply; as feloniously, in the indictment of any felony; burglariously, in an indictment of burglary and the Jike. 2 H. H. 184.

And if a man be indicted that he stole, and it is not said feloniously, this indictment imports but a trespass. Ibid. 172.

With a certain drawn sword..... Yet if the party were killed with another weapon, it maintains the indictment; but if it were with another kind of death, as poisoning, or strangling, it doth not maintain the indictment upon evidence. Ibid. 185.

Of the value of five shillings....At was formerly necessary to set forth the value of the instrument, because it was forfeited as a deodand. (Ibid.) But it is now grown obsolete. See DEODAND.

Which he the said John Armstrong in his right hand then and there had and held..... It must shew in what hand he held his sword.

Ibid.

In and upon the right side of the belly, near the short ribs of the said George Harrison..... There must be a certainty of the offence committetl, and nothing material shall be taken by intendment or implication; but the special manner of the whole fact ought to be set forth with ertainty. 2 Harv. 225, 227.

And therefore in the case of murder, it ought to shew in what part of the body the person was wounded: and therefore if it be on his arm, or hand, or side, without saying whether right or left, it is not good. 2 H. H. 185.

If theft be alledged in any thing, the indictment must set forth the value of the thing stolen; that it may appear whether it be grand or petit larceny. Ibid. 183.

In like manner, an indictment that the defendant took and carried away such a person's goods and chattels, without shewing what is certain, as one horse, one cow, is not good. Ibid. 182.

An indictment that the defendant is a common highwayman, a com mon defamer, a common disturber of the peace, and the like, is not good; because it is too general, and contains not the particular matter wherein the offence was committed. Ibid.

In like manner, an indictment for divers scandalous threatnings, and contemptuous words, spoken of a justice of the peace, is not good, but ought to set forth the words in special. Str. 699.

An indictment for disobeying an order of justices must find, positively, that such an order was made, and not by way of recital, that whereas L. Faym. 1363.

Then and there feloniously did stab and thrust....In an indictment it is best, and often necessary, to repeat the time and place, to the several parts of the fact. 2 H. H. 178.

Thus, in an indictment of murder or manslaughter, as well the day and place of the stroke, or other act done, as of the death, must be expressed; the former, because the escheat or forfeiture of lands relates thereto; the latter, because it must appear that the death was within the year and day after the stroke. Ibid. 179.

One mortal wound, of the breadth of one inch, and of the depth of nine inches.... Regularly the length and depth of the wound is to be shewed; but this is not necessary in all cases, as namely, where a limb is cut off; so it may be also a dry blow. Ibid. 186.

But though the manner and place of the hurt, and its nature, be requisite as to the formality of the indictment, and it is fit to be done as near the truth as may be, yet if upon evidence it appear to be another kind of wound, in another place, if the party died of it, it is suffi cient to maintain the indictment. Ibid.

Against the peace, &c.....The conclusion of all indictments in this tommonwealth is, against the peace and dignity of the commonwealth. Const. Virg. art. 18.

And against the form of the statute in such case made and provided..... Regularly, if a statute only make an offence, or alter an offence from one crime to another, as making a bare misdemeanor to become a felony, the indictment for such new made offence at common law must conclude, against the form of the statute, or otherwise it is insuffi cient. 2 H. H. 192.

But if a man be indicted for an offence, which was at common law, and concludes, against the form of the statute, but in truth it is not brought by the indictment within the statute, it shall be quashed, and the party shall not be put to answer it as an offence at common law. Ibid. 171.

And if an offence were felony at common law, but a special act of Assembly oust the offender of some benefit that the common law allowed him, when certain circumstances are in the fact; though the body of such indictment must express those circumstances, according as they are prescribed in the statute, yet the indictment need not conclude, against the form of the statute. Thus on the statute of the 8 El. c. 4. in case of pick-pockets, the body of the indictment must bring them within the express purview of the statute, or otherwise they shall have the benefit of clergy; but it need not conclude, against the form of the statute, neither is it usual in such cases, for it was felony before, and the statute doth not give a new punishment, nor make it to be a crime of another nature, but only takes away clergy. But yet, if it should conclude in such case, against the form of the statute, it would not vitiate the indictment, but would be only surplusage. 2 H. H. 190.

If an act of Assembly making an offence be but temporary, and made perpetual by another statute, the indictment concluding against the form of the statute is good. Ibid. 173.

If the former statute be discontinued, and revived by another statute, the best way is to conclude, against the form of the statutes; though there is a good opinion, that it is good enough to conclude against the form of the first statute. Ibid.

If one statute be relative to another, as where the former makes the offence, the latter adds a penalty; the indictment ought to conclude, against the form of the statutes. Ibid.

Condition of a recognizance to prefer a bill of indictment.

(The penalty may be the same as form (A) under title RECOGNI

ZANCE

The condition of this recognizance is such, that if the above bound AJ shall personally appear at the next court to be holden at for &c. and then and there prefer a bill of indictment against A O, late of yeoman, for the felonious taking and carrying away of the property of and shall then and there give evidence concerning the same, to the jurors who shall inquire thereof, on the part of the commonwealth. And in case the same be found a true bill, then, if the said A J shall personally appear before the jurors, who shall pass upon the trial of the said A O, and give evidence upon the same indictment, and not depart without leave of the court, then this recognizance to be void.

Condition of a recognizance to answer to an indictment.

(For the penalty, see form (A) title RECOGNIZANCE.

The condition of this recognizance is such, that if the above bound A O shall personally appear at the next court, to be holden at for &c. then and there to answer to an indictment to be preferred against him, by AJ, of yeoman, for assaulting and beating him the said A J, and not to depart without leave of the court, then this recognizance to be void.

INFANTS.

1. BY an infant, or minor, is meant any one who is under the age of twenty-one years. 1 Inst. 2.

2. It is said, generally, that those who are under a natural disability of distinguishing between good and evil, as infants under the age of fourteen years, which is called the age of discretion, are not punishable by any criminal prosecution whatsoever. But this must be understood with some allowance; for if it appear by the circumstances, that an infant under the age of discretion could distinguish between good and evil, as if one of the age of nine or ten years kill another, and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of full age, but in such case the judges will in prudence respite the execution, in order to get a pardon and it is said, that if an infant, apparently wanting discretion, be indicted and found guilty of felony, the justices themselves may dismiss him without a pardon. And in general it must be left to the discretion of the judge, upon the circumstance of the case, how far an infant, under that age, is capax doli, or hath knowledge to discern betwixt good and evil. Hale's Pl. 43. 1 Haw. 2. 1 H. H. 18.

A remarkable instance of this kind we have in the case of William York, who, a boy of ten years of age, was convicted before lord chief justice Willes for the murder of a girl of about five years of age; and received sentence of death. But the chief justice, out of regard to the tender years of the prisoner, respited execution, till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or not, upon the special circumstance of the case; which he reported to the judges as follows. The boy and girl were parish children, but under the care of a parishioner, at whose house they were lodged and maintained. On the day the murder happened, the man of the house and his wife went out to their work early in the morning, and left the children in bed together. When they returned from work the girl was missing; and the boy being asked what was become of her, answered, that he had helped her up, and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man under whose care the children were observed that a heap of dung near the house had been newly turned up. And upon removing the upper part of the heap, he found the body of the child, about a foot's depth under the surface,