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all or some of the offences described in the major, and there is no part in which greater nicety is sometimes required, or in which an error is attended with more fatal consequences.* Where there are several prisoners, and more than one crime, or one degree of crime, alleged in the major proposition, it is necessary not merely to aver that each is guilty of the said crimes, or of one or other of them, but to specify which of the crimes each has been guilty of, without confounding him with the other. It was but natural to expect that such a form of indictment should lead to many failures in practice, and failures, too, be it observed, wholly irrespective of the merits; but this has been especially the case where the offence has no recognised nomen juris, or legal name. In these cases, unless the prosecutor can so accurately frame his major proposition as to set forth what in all circumstances must amount to a crime, or matter of dittay, the court will not sustain the major; and, although the minor proposition sets forth in the clearest possible manner some offence, the court will not look at the minor in order to explain or interpret the major. We deem it quite unnecessary to adduce any of the very many instances which are reported where justice has been most clearly defeated by most miserable technicalities under this head.

In England, as far as our research backwards extends, we have seen no trace of this syllogistic form; but there appears to have been a practice in early times of reciting the statute which created the offence, and, in such a case, if the indictment concluded "against the form of the said statute," a material variance in the recital was fatal. But it has been settled for many ages that it is never necessary in any indictment to recite any public statute upon which it is founded, for the judges are bound, ex officio, to take notice of public Acts of Parliament, and where there are more than one by which the proceeding can be maintained, they will refer it to that which is most for the public advantage. These reasons, however, do not appear to

+Ibid, 247.

*Alison, P. C. L., 245. ‡ 1 Chitty, Cr. L. 276, and the numerous authorities there cited.

us to be sufficient; for the "charge must contain a certain description of the crime of which the defendant is accused," not merely in order that the court may know what sentence to pronounce, but "in order that the defendant may know what crime he is called upon to answer," and " the jury may appear to be warranted in their conclusion of guilty' or 'not guilty' upon the premises," and that "the defendant's conviction or acquittal may insure his subsequent protection should he be again questioned on the same ground.”* We should, therefore, rest our forms of indictment upon the much broader ground that every one is bound and presumed to know what the law is, and that when an indictment sets out a charge with sufficient distinctness and certainty to enable a person convereant with the law to perceive what the offence is, it is sufficient, for every one is presumed to know the law. Whether, however, we are right in this view or not, it is perfectly settled with us that no statement, either of the common or public statute law, is necessary in an indictment; and no such statement is ever now made,t and no instance has ever occurred that we are aware of in which any inconvenience has arisen from the omission; and we cannot doubt that it would be a great improvement if the statement in the major proposition in Scotland were rendered unnecessary.

In England, indictments founded upon statutes, or where. the punishment of any common law offence has been altered by a statute, used always to conclude "against the form of the statute," and if they did not, they were altogether bad in the former case, and the common law punishment could only be inflicted in the latter case; but now by the 14 & 15 Vict., c. 100, s. 24, " no indictment for any offence shall be held insufficient for want (inter alia) of a proper or formal conclusion."+

In England the general rule has always been that it is

* 1 Chitty, Cr. L. 169, and cases there cited. The parts of a private statute, on which an indictment may be founded, must be set out.-1 Chitty, Cr. L. 277.

See Reg. v. Holmes, Dears, C. C., 207.

*

sufficient to state that an offence was committed on a specified day; the exception is where time is of the essence of the offence, as in burglary. In Scotland the time appears to be more particularly specified. So in England, from the highest offence to the lowest, it has always been unnecessary to prove the time of committing the offence precisely as laid, unless that particular time is material; and it is sufficient to prove that the offence was committed at any time before the finding of the bill by the grand jury. But in Scotland it is otherwise. Where, therefore, a woman was charged with a theft "late on the evening" of a certain day, and the proof was that the theft was between five and six o'clock, the Court held that this could not be considered as late in the evening, and, as the prosecutor had unnecessarily circumscribed himself in his libel, the offence, as specially laid, was found not proven.† So a variance in the year has been held fatal, and other similar cases have occurred. The proper course would be to make the Scotch law the same as the English in this instance, by providing (as in the 14 & 15 Vict., c. 100, s. 24) that no indictment shall be insufficient "for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly," and by adding that "the particular time alleged need not be proved, unless time is of the essence of the offence."

With regard to the place where the offence was committed, it was formerly necessary in England to state a place in the indictment, whether the offence was local or not; and this seems still to be the case in Scotland. But now, by the 14 & 15 Vict., c. 100, s. 23, it is unnecessary in England to do so, unless the offence requires a local description; and this provision ought to be extended to Scotland. In England, on the trial of indictments for offences which are not local in their nature,

* This rule is subject to the exception of cases where the prosecution is limited to a certain time after the offence.

† Hume App., 522.

Escapes of Prisoners, 25.

it is generally sufficient to prove that the offence was committed at any place within the county; and it is immaterial if the proof show that it was committed at a different place in the county from that alleged. But in Scotland it is otherwise. A robbery was alleged "in the High Street of Edinburgh, near the head of the Fleshmarket Close;" but it was in fact within the mouth of the close, and in the first common stair there, and therefore the case failed.* A woman was charged with giving poison to her child in a close in the Saltmarket; but the poison was in fact given on the pavement of the Saltmarket, and therefore the case failed. similar cases have occurred. It is clear that in cases, where locality has nothing to do with the offence, the proof of the offence in any place within the county ought to be made sufficient in Scotland as it is in England.

And many

this class of

Where the offence is local the place must be stated, and proved as stated in both countries. We confess we entertain a doubt whether in sound reason there is any ground why the particular place should be specified in certain offences. What difference in the essence of the offence is there between a burglary committed in the parish of A and one in the parish of B? And why should it not suffice to allege the house to be in the county without any further description? In some cases, as in indictments for the non-repair of highways, the particular description of the place is essential in order to show the liability of the parish indicted to repair.

In both countries it is necessary to describe the property, in respect of which any offence may have been committed, and the proof must agree with the description; but in Scotland the description appears to be more precise. Thus we find that a prisoner escaped because a parcel was described as "addressed to James Budge" instead of John Budge;§ and another, because a ram was described as "a three-year-old tup," and its age could not be proved.||

* 2 Hume, 210.

Escapes of Prisoners, 26.

Alison's Practice, 262.
§ 2 Hume, 201.

|| Bell's Notes, 204.

In both countries the owners of any property mentioned in the indictment must be named, and the proof must support the statement. This rule in England formerly caused, and in Scotland still causes, numerous acquittals.

So, too, the rule is the same in both countries as to stating and proving the name of the person injured or killed.

We must here notice a case under this head, because it seems clear that the decision was erroneous. A man was indicted in Scotland for the murder of a woman described as the daughter of “John Robson, or Robertson, late wright,” when in fact he was a tailor, and acquitted on the ground of this variance. He was again charged with the same murder in the same terms as before, with the single variation of the trade of the father; it was objected that he had already “tholed an assize” for the same act of murder; and the judges held that the objection was good, and that the prisoner could not be tried again.* The ground upon which the first acquittal proceeded was that the word “wright” was material, and must be proved, and that as the father was proved to be a “ tailor” that was a fatal variance. Now in England, before the 14 & 15 Vict., c. 100, s. 28, the prisoner must have pleaded that he had been previously acquitted of the offence alleged in the second indictment, and he must not only have set out the former indictment, but he must have alleged that every material fact in the one indictment was the same as that in the other.† In this case, therefore, the prisoner must have alleged that “wright” and "tailor" were the same thing, otherwise the plea would have been bad on the face of it; and as it is impossible that such an allegation could have been truly made or supported, it is clear that the decision was wrong. Again, it is settled that if a prisoner could have been legally convicted on one indictment

* 2 Hume, 111, 195, 197, 446; Alison's P. C. L., 284.

† Where an acquittal takes place for want of proof of a name, and the prisoner is afterwards indicted, and a different name stated, he may aver that the person was as well known by the one name as by the other, and if the jury find that this is the case, he is entitled to succeed.

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