sentment found by a grand jury consisting of the common law number; State v. Davis, 2 Iredell 153.

(f) The adequacy of this averment, together with those that follow, was discussed by the Supreme Court of Indiana, in a late learned opinion; Beauchamp v. State, 6 Blackford 304. This general representation of the qualifications of grand jurors," it was said, "has always been held to be sufficient, even when the record comes from a court of special and limited jurisdiction; if it comes from a superior court, even the omission of these words is not fatal, because all men shall be presumed to be 'good and lawful' until the contrary ap pears; 1 Chit. C. L. 333; Bac. Abr. Indictment i.; 2 Hawk. c. 25, s. 17, 3. It is alleged there is uncertainty in the time and place of swearing and charging the grand jury. The caption shows that at the May term, 1841, of the Vigo Circuit Court, and on the third day of that month, the jurors (naming them) appeared in court, and being duly sworn and charged, &c. The defect complained of is the omission of the words then and there' before 'sworn and charged.'

"The case of The People v. Guernsey, 3 Johns. Cases 265, is relied on to support this objection. It appears to us that it has a contrary bearing. The omission of the words then and there," in reference to the swearing and charging the grand jury, was, indeed, held to be a fatal defect in the caption of the indictment. But the decision turned on the fact, that the record was certified from a court of inferior jurisdiction, and it admitted that the law is otherwise when the indictment is from a superior court. Our circuit courts are vested with public and and very ample jurisdiction, and are not in contemplation of law inferior courts. That writs of error lie to them from the Supreme Court, does not give them that character. Writs of error run to the English Common Pleas from the King's Bench, and to both from the Exchequer Chamber; but these tribunals have always been ranked among the superior courts, the highest indeed in the kingdom. The principal object of the caption is to show the jurisdiction of the court in which the indictment was found. More certainty therefore is requisite, when it is brought from a court of special jurisdiction, than when it comes from a superior court. In the latter case the omis. sion of the words 'then and there,' in respect to the swearing and charging the grand jury, is not fatal; and it may be well doubted whether it is in any case; I Chit. C. L. 334; 2 Hawk. c. 25, s. 126; Bac. Abr. Indictinent i.; Arch. C. P. 24."

As to the strictness requisite in drawing the caption, great variety of sentiment exists. In North Carolina, the courts have gone so far as to pronounce no necessity to exist for a caption at all, except where the court acts under a special commission; State v. Brickell, 1 Hawks 354; State v. Haddock, 2 Hawks 462; see 1 Saunders 250, d. n. i. Where it is wholly omitted in the court below, it may be supplied on error by the minute of the clerk on the bill at the time of presentment, and the general record of the term; State v. Gilbert, 13 Verm. 647; State v. Murphy, 9 Port. 486; State v. Smith, 2 Harringt. 532; Kirkpatrick v. State, 6 Miss. 471; State v. Thompson, Wright's R. 617; State v. Rose, 1 Alabama 29. In fact in most of the states it is now rarely tacked on, except in error. In Pennsylvania, Pa. v. Bell, Add. 156; in South Carolina, State v. Williams, 2 M'Cord 301; Vandyke v. Dail, 1 Bail. 65; in Indiana, Moody v. State, 7 Blackford 424; and in New Jersey, State v. Jones, 4 Halst. 457, it seems it can be amended when in the court below, by reference to the records of the term, or when in error, by proper evidence of the facts.

FORMS OF CAPTIONS.

Circuit Court of the United States of America, for the Southern District of New York in the Second Circuit.

Form of Captions.

(At a Stated Term of the Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit, begun and held at the City of New York, within and for the circuit and district aforesaid, on the

in the year of our Lord one thousand eight hundred and

(Also) at a Special Term, &c.

of

At an additional sessions of the Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit, begun and held at the City of New York, within and for the circuit and district aforesaid, on the of in the year of our Lord one thousand eight hundred and

day

At a Stated Term of the Circuit Court of the United States of America for the Southern District of New York in the Second Circuit, begun and held at the City of New York, within and for the circuit and district aforesaid, on the in the year of our Lord one thousand eight hundred and continued by adjournment (or adjournments) to the day of Laforesaid.

of

and

in the year last

District Court of the United States of America for the Southern District of New York. At a Stated Term of the District Court of the United States of America for the Southern District of New York, begun and held at the City of New York, within and for the district aforesaid, on the first Tuesday of in the year of our Lord one thousand eight hundred and

Form of Captions.

At a Special Term, &c.

At a Stated Term of the District Court of the United States of America for the Southern District of New York, begun and held at the City of New York, within and for the district aforesaid, on the first Tuesday of in the year of our Lord one thousand eight hundred and and continued by adjournment (or adjournments) to the in the year last aforesaid."

day of

State of New Jersey, Sussex County, ss.

Be it remembered, That at a Court of Oyer and Terminer and General Gaol Delivery, holden at Newton, in and for said County of Sussex, on the fourth Tuesday in May, in the year of our Lord one thousand eight hundred and twenty-seven, before the Honourable Gabriel H. Ford Esq., one of the justices of the Supreme Court of Judicature of the State of New Jersey, and John Gustin, Joseph Y. Miller, Walter L. Shee, Aaron Hazen, and others, their fellows, judges of the Inferior Court of Common Pleas in and for the said county, according to the form of the statute in such case made and provided, by the oaths of Elijah Emitt, Absalom Dunning, John Layton, Nathaniel Vanauken, Isaac Bedell, Philip Smith, Philip Wyker, Thomas A. Dildine, Thomas B. Egbert, Joseph Greer, William D. Johnson, Abraham Dunning, Andrew Wilson, David Cumpton, Lewis Shuman, Nicholas J. Cox, John Lennington, Zenas Hurd, and by the solemn affirmation of William Green, who alleges himself to be conscientiously scrupulous of taking an oath, good and lawful men of the said county, sworn, affirmed and charged to inquire for the state, in and for the said body of the said County of Sussex, it is presented in manner and form following, that is to say: Sussex County, ss. The jurors of the state of New Jersey, for the body of the county of Sussex, upon their oaths and affirmation, William Green, one of the said jurors, being the only person who affirmed, on the said jury, alleging himself to be conscientiously scrupulous of taking an oath, present that Zachariah Price, late of the township of Vernon, in the County of Sussex aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the twentyfifth day of March, in the year of our Lord one thousand eight hundred and twenty-seven, with force and arms, &c., at the township aforesaid, in the county aforesaid, and within the jurisdiction of this court, one barn of the property of one Nicholas Ryerson, not parcel of the dwelling house of the said Nicholas Ryerson there situate, wilfully and maliciously did burn and caused to be burned, to the great damage of the said Nicholas Ryerson, to the evil example of all others in the like case offending, contrary to the form of the statute in such case made and provided, against the peace of this state, the government and dignity of the same. And afterwards, that is to say, at the same Court of Oyer and Ter. miner and General Gaol Delivery, holden at Newton aforesaid, in the county aforesaid, on Monday the twenty-eighth day of May, in the year last aforesaid, before the said Honourable Gabriel H. Ford Esq., justice of the Supreme Court of Judicature, and John Gustin, Joseph Y. Miller, Walter L. Shee, Aaron Hazen, and others their fellows, judges of the Inferior Court of Common Pleas in and for the said county, cometh the said Zachariah Price, in his proper person according to the condition of the recognizance by himself, and his pledges in that behalf heretofore made and now here, touching the premises in the said indictment above specified and charged upon him, being asked in what manner he will acquit himself thereof, he says he is not guilty thereof, and of this he puts himself upon the county; and the said Alpheus Gustin Esq., who prosecutes for the state in this behalf, does likewise the same; wherefore let a jury thereupon come, to wit, on Monday the twenty-eighth day of May, in the year of our Lord eighteen hundred and twenty-seven, and as yet of the said term of May, before the said the Honourable Gabriel H. Ford Esq, one of the justices of the Supreme Court of Judicature, and John Gustin, Joseph Y. Mil. ler, Walter L. Shee and Aaron Hazen Esqrs., and others their fellows, judges of the Inferior Court of Common Pleas in and for the said county, of good and lawful men of the County of Sussex aforesaid, by whom the truth of the matter may be the better known, and who are not of kin to the said Zachariah Price, to recognize upon their oaths, whether the said Zachariah Price be guilty of the misdemeanor in the indictment aforesaid above specified, or not guilty, because as well the said Alpheus Gustin Esq., who prosecutes for the state in this behalf, as the said Zachariah Price, have put themselves upon the said jury, and the jurors of the said jury, by Benjamin Hamilton Esq., high sheriff of the said

County of Sussex, for this purpose empanneled and returned, agreeably to the statute in such case made and provided, to wit, John Cummins, Matthew Ayres, Lewis Havens, Sylvenus Adams, William Milcham, Jacob Miller, Nicholas Ackerson, Gabriel Post, Lewis Peters, Joseph Predmon, Lewis Dennis and Samuel H. Hibler, who being elected, tried and sworn and affirmed, the said Lewis Dennis, one of the said jurors, being the only person who was affirmed on the said jury, alleging himself to be conscientiously scrupulous of taking an oath to speak the truth of and concerning the premises, upon their oaths and affirmation, say that the said Zachariah Price is guilty of the misdemeanor aforesaid on him above charged in the form aforesaid, and as by the indictment aforesaid is above supposed against him; and upon this it is forthwith demanded of the said Zachariah Price if he hath or knoweth of any thing to say wherefore the said justice and judges, and their fellows as aforesaid here, ought not upon the premises and verdict aforesaid, to proceed to judgment against him, who nothing further saith, unless as he before had said; whereupon all and singular the premises being seen, and by the said justice and judges, and their fellows as aforesiad, here fully understood, it is considered by the court here that the said Zachariah Price be confined and imprisoned at hard labour in the state's prison for the term of ten years.

The caption to the panel of the grand jury was as follows:

List of the names of persons summoned to attend at the Court of Oyer and Terminer and General Gaol Delivery, to be holden at Newton, in and for the County of Sussex in the State of New Jersey, in the term of May, in the year of our Lord one thousand eight hundred and twenty-seven, pursuant to the statute in such case made and provided, by me, viz. A. B., C. D., &c., naming the jurors.

Subscribed. B. H., Sheriff.—(State v. Price, 6 Halst. 204, 205, 206).

City and County of New York, ss.

before

two of

Be it remembered, That at a Court of General Sessions of the Peace, holden at the Halls of Justice of the City of New York, in and for the City and County of New York, on the first Monday of in the year of our Lord one thousand eight hundred and forty. Esquire of the said City of New York, and the aldermen of the said city, judges of the said court, assigned to keep the peace of the said City and County of New York, and to inquire, by the oaths of good and lawful men of the said county, of all crimes and misdemeanors committed or triable in the said county, and to hear, determine, and punish according to law, all crimes and misdemeanors in the said City and County, done and committed, not punishable with death. By the oath of foreman, (here setting forth grand jurors).

It was presented as follows, that is to say, City and County of New York, ss: The jurors of the people of the State of New York, in and for the body of the City and County of New York, upon their oath present that, &c.

State of Vermont, Windsor County, ss.

Be it remembered, That at the county court begun and holden at Woodstock, within and for the County of Windsor, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and forty-five: The grand jurors within and for the body of the County of Windsor aforesaid, now here in court duly empanneled and sworn, upon their oath present that, &c. (See State v. Nixon, 18 Verm. 70; State v. Munger, 15 Verm. 290).

(g) The jury must appear to be of the "county aforesaid;" Tipton v. State, Peck's R. 8; Cornell v. State, Mart. & Yerg. 147; Wh. C. L. 631; though the allegation, "em. panneled and sworn in and for the county of Wilkinson and state of Mississippi," may supply its place; Woodsides v. State, 2 How. Miss. R. 655.

In New Jersey, where the caption states the finding to be on the oath and affirmations of the grand jury, it must appear that the affirming jurors were persons entitled by law to take affirmations instead of oaths; State v. Harris, 2 Halst. 457; see note postea, p. 22. This particularity does not seem elsewhere to have been held necessary; see Archbold's C. P. 5th Am. ed. 34.

(h) The omission of the allegation "then and there sworn and charged," in New York, has been held fatal; People v. Guernsey, 3 Johns. 265; though in Mississippi, "then and there" are not considered indispensable; Woodsides v. State, 2 How. Miss. R. 655; and they do not appear in the precedent given by Mr. Archbold; Archbold's C. P. 5th Am. cd. 34. As appears in note f, p. 2, the omission in Indiana is considered no error.

(i) See as to this form generally, Archbold's C. P. 5th Am. ed. 33; 2 Hale 166; R. v. Fearnly, 1 Leach 425; Wh. C. L. 63.

CHAPTER II.

GENERAL FRAME OF INDICTMENT AT COMMON LAW.

THE jurors for, &c.,(a) inquiring for, &c.,(b) upon their oath (c) do present that A. B.(d) late of the said county, yeoman,(e) on the (ƒ) with force and arms,(g) at aforesaid, in the county aforesaid,(h) and within the jurisdiction of the said court, in and upon, &c., one E. F., &c.,(i) with intent, &c.,(j) against the form of the statute (or statutes) in such case made and provided, and against the peace and dignity (of the sovereign authority).(k)

2d count. And the jurors aforesaid, upon their oath aforesaid, do further present that the said A. B. aforesaid, to wit, on the day and year aforesaid, at in the county and within the jurisdiction

aforesaid, did, &c.(1)

(Conclude as in first count).

(a) The jurors "of" instead of “for,” is not bad on arrest of judgment; R. v. Turner, 2 M. & Rob. 214, Parke J.; see 1 Chit. C. L. 327.

(b) At Common Law the jurors must appear to be of the county; Whitehead v. R., 14 Law J. (M. C.) 165; see postea, p. 14, et seq., for the forms and authorities in the several

states.

(c) Where the jurors entertain conscientious objections to taking an oath, the proper course is to insert "oaths and affirmations;" Dickinson's Q. S. 200; Key's case, 9 C. & P. 78; and this is always the case in Pennsylvania, though in the remaining states, the prac tice has been relaxed, and the phrase "oath" seems adopted as a settled form.

(d) In this note will be considered first, in what way the defendant's name is to be set out; and secondly, in what cases several defendants may be joined.

1st. In what way the defendant's name is to be set out.

The christian and surname of the defendant, if known, should be stated with correct. ness; except in an indictment against the inhabitants of a county or parish, who may be so described without naming any of them; Hawk. b. 2, c. 25, s. 68; Archbold's C. P. 25. Wh. C. L. 65. In Pennsylvania, under an act directing the "president, managers and company" of a certain road to remove a particular gate, it was held that an indictment of those officer or officers individually for a violation of the act, was bad; though the court declined saying whether they would have sustained an indictment charging the defendants as a corporation; Com. v. Demuth, 12 S. & R. 389. But the weight of authority elsewhere is that the members of a corporation when indicted for a corporation offence, must be charged individually; State v. Great Works, 20 Maine 41; Com. v. Swift-Run Gap, 2 Va. Cases 362. But if the name of a prisoner is unknown, and he refuses to disclose it, an indictment may be sustained against him as "a person whose name is to the jurors unknown, but who is personally brought before the said jurors by the keeper of the prison of ; R. v. R. & R. 489. A man cannot be indicted with an alias dictus of the christian name, as "John, otherwise Robert," though to an alias of the surname there is no objection; 1 Ld. Raym. 560; surnames being originally acquired by assumption. See cases collected, 5 M. & W. 447; see also per Lord Stowell, Wakefield v. Wakefield, 1 Hagg. Cons. R. 400; Barlow v. Bateman, 3 P. Wms. 64. An indictment was quashed before plea, because an addition was placed, not after the first name, but after the alias dictus; R. v. Semple, 1 Leach 420; but this defect is cured by plea, R. v. Hannam, ib. n.; see Cro. Jac. 482, 610. The cases tend to show that if a defendant has more than one christian name given him in baptizm, as John Thomas, they are considered in law as forming one christian name, and must be set out correctly in their order; Com. v. Perkins, 1 Pick. 388; Jones v. Macquillon, 5 T. R. 195; 3 East 111; Willes 554; Evans v. King, Pouget v. Tomkins, 1 Phill. R. 499; Stanhope v. Baldwin, 1 Addams' R.

6

WHEN SEVERAL DEFENDANTS MAY BE JOINED.

93; see 1 M. & Gr. 783, n., though in New York it is declared that a middle name is surplusage, and its omission to be disregarded; Roosevelt v. Gardiner, 2 Cow. 463. The proper name of a bastard is that he has gained by reputation, and not his mother's name, unless so gained; R. v. Clark, R. & R. 358.

2d. (In what cases several defendants may be joined). Where the felony is such as several may join in, e. g. house-breaking, larceny, &c., and it is believed that several have joined in committing it, in several degrees, e. g. as principal in the first or second degree, or as accessaries before or after the fact, they may all be indicted jointly; 2 Hale 173; Kane v. People, 9 Wend. 203; Com. v. Elwell, 2 Met. 190; Com. v. Gillespie, 7 S. & R. 469; Reg. v. Puthain, 9 C. & P. 280; and the like in misdemeanors, where all are principals, e. g. extortion, battery, &c.; a keeping a gaming house, &c., 2 Burr. 984; adultery, Com. v. Elwell, 2 Met. 190; and the same rule bears though the several parties may have acted separately, if the grievance, e. g. the nuisance, is the result of all their acts jointly, they may be joined in an indictment stating the acts to have been several; R. v. Stafford and others, I B. & Ad. 874. This in England is said by Mr. Serjeant Talfourd to be the more usual and convenient course; though a distinct indictment might, in point of law, be maintained against each, as all offences are, in their nature, several; Reg. v. Atkinson et al., Ld. Raym. 1248; Salk. 32; Com. v. Harley, 7 Met. 462. A joint indictment, however, prepared on this basis, is in its nature several also; for the issues upon it are joined distinctly between the prosecution and each defendant; the defendants may plead in different ways, and although they plead similar pleas, may, in case of felony, procure several trials by severing in their challenges. So also some may be convicted and others acquitted, except where the offence is one which cannot be committed by less than two, as conspiracy; or less than three, as riot; when if the jury acquit all the parties charged on the record but one, in the first case, or two in the second, all must be acquitted, unless it is laid and found that the offence was committed with others to the jurors unknown. Thus, several may be joined in an indictment for publishing a libel, where all joined in the publication; R. v. Benfield and Saunders, 2 Burr. R. 980; and for obtaining money under false pretences, when all were present aiding and assisting in the common object of fraud; Reg. v. Young et al., 1 Leach 505; Com. v. Call, 21 Pick. 515; Com. v. Harley, 7 Met. 462. Three were jointly charged with procuring certain other persons to utter a forged will. The only evidence for the crown was of separate acts, done at separate times and places by each of the persons charged as accessaries; at the end of that evidence, one pleaded. For the rest it was said, that only one could on the evidence be convicted. It was held, however, that the rest might be convicted; Reg. v. Barker and others, C. & K. 442.

But where the offence of each is entirely distinct in its nature, or arises out of some personal duty or omission, each ought to be separately indicted, or, at all events, severally charged. Thus, indictments against two or more jointly for perjury, as common scolds, or for exercising a trade without serving an apprenticeship, are bad; for the act complained of are essentially and necessarily several; R. v. Phillips and others, 2 Strange 921; Reg. v. Hodson, 6 Mod. 210. And though several defendants may be included in one indictment for several distinct misdemeanors of the same kind, as for severally keeping dis orderly houses; 2 Hale 174, cited R. v. Kingston and others, 8 East R. 4; it is neither discreet or proper, for the court might (at all events before plea, or as it seems, even before the jury is charged with them; Reg. v. Norton, 8 C & P. 196), quash such an indictment for any inconvenience shown to arise from the joinder of different counts against different offenders; ib., see Lord Raym. 1248; or, if the objection is not made till after the jury has been charged, might put the prosecutor to his election; see p. 191 Dickinson's Q. S. Objection to an indictment for improper joinder of defendants in it, is too late after verdict; Reg. v. Hayes, 2 M. & Rob. 155.

To support conspiracy it is necessary that two or more defendants should be charged to have been engaged; R. v. Kinnersely, 1 Strange 193; R. v. Sudbury, 12 Mod. 262; 13 East 412; 1 Ld. Raym. 484; State v. Allison, 3 Yerg. 428; People v. Howell, 4 Johns. 296; Turpin v. State, 6 Blackf. 72; though it is sufficient to aver the offence to have been committed by one defendant particularly named, together with others to the inquest unknown; and the same law applies to riot, with the exception that in the latter offence three or more defendants must be joined; see Wharton's C. L. 110, 491, 527.

If two or more be jointly charged with having committed a single offence, they cannot be separately convicted of separate parts of it. But both may be convicted, or one only, and the other acquitted of the whole charge; see R. v. Hempstead, R. & R. 344; also R. v. Batterworth, and R. v. Messingham, 1 Mood. C. C. 257. In R. v. Harris, Balls & Moses, 7 C. & P. 416, three were jointly indicted at the central criminal court for feloniously using plates containing impressions of forged notes. It was held that a singly using the plates by each of the three while alone, would not suffice for a conviction; but the jury must select some one particular time after all three had become connected, viz. a tine