when they were all present together at one act, or assisting in such one act, as by two using and one watching at the door to prevent disturbance, and the like.

(e) (Proper addition of the accused party). The statute 1 Hen. V. c. 5, enacts, that in all indictments on which process of outlawry lies, additions shall be made to the defend. ants' names, of their estate or degree, or mystery, and of the towns or hamlets, or places, and the counties of the which they were or are conversant. This statute has been either recognized as in force in those states where the question has been brought up independent of local legislation, or has been substantially re-enacted; Wharton's C. L. 68; State v. Hughes, 2 Har. & M'H. 479; Com. v. Sims, 2 Va. Cases 374; Com. v. Lewis, 1 Met. 151; State v. Bishop, 15 Maine 122.

In England, if an accused have several titles, he must be described by the most honourable; and if he have none by birth, office, creation, or reputation, and is described by any such, or if a gentlewoman be named merely spinster, or a yeoman is named gentleman, the indictment will be defective; 2 Inst. 699. But a trader may be sued either by his degree or rank in society, independent of his trade, or by the name of his vocation; Erskine v. Murray, 2 Ld. Raym. 1542. A mis-description, however, calculated to throw contempt on the defendant, is bad, and on this ground an indictment was held vicious in abatement, which described the defendant as a lottery vender, when he was in fact a lottery broker; State v. Bishop, 15 Maine 122.

By stat. 8 Hen. VI. c. 10, s. 1, 2, the indictment ought to contain the addition of the place and county where the party indicted is "conversant and dwelling." The county in the margin refers to the place where the offence was committed, and not to the habitation of the party. Accordingly an outlawry for perjury was reversed on error, for the party was indicted by the name "N. L., late of the parish of A.," without showing in what county A. is, though " Middlesex" was in the margin; Leech's case, Cro. Jac. 167.

Neither yeoman or labourer are good additions for that of a woman; and widow, singlewoman, wife of A. B. and spinster, are good additions of the estate and degree of a woman; but burgess, and citizen, and servant, are all of them too general, and therefore not good additions of the estate or degree either of a man or woman; Hawk. b. 2, c. 23, s. 111; 2 Inst. 668; 1 Bla. C. 405; Ld. Raym. 1179; 6 M. & S. 38; R. v. Checketts, 6 M. & S. 38. As to yeomen, see 1 Bla. C. 406; 2 Inst. 595, 668. Indictment for assault, addition was stated as gentleman. Plea that he was an esquire and no gentleman, overruled. Per Fortescue J., "this is in addition only, not in the name, and they are the same, and every esquire is a gentleman, and gentlemen are called esquires;" Reg. v. Chapman, cited by Fortescue J., in Williams v. Francis, Fort. R. 354. Wife was amended to widow, in a case where the prisoner, charged with murdering her husband, was described as H., the wife of J. O., late of, &c., labourer; Reg. v. Orchard, 8 C. & P. 565, Lord Abinger; see Reg v. T. and M. Woodward, 8 C. & P. 561. Prisoners jointly indicted for stealing clothes, M. W. being described in indictment as " Margaret Woodward, singlewoman," and she pleaded to that indictment. The only evidence was that the prisoners addressed each other as husband and wife, and passed and appeared as such, and were spoken of as such by witnesses for crown. Patteson J.: This is evidence on which the jury must say whether they are satisfied that the prisoners are in fact husband and wife, even though the woman has pleaded to indictment charging her as "singlewoman." She ought to have been described as wife, not as singlewoman. The woman was acquitted: the man convicted. There are few cases in the American books where the niceties of the English law of additions have been recognized. A want of an addition in toto is ground for a motion to quash; but I apprehend that the additions "yeoman," "spinster," "gentleman," "labourer," may be relied upon universally in their proper places as sufficient. In Virginia, it is true, in an old case, the difference between "labourer" and "yeoman" was held material; Com. v. Sims, 2 Va. Cases 374; but the present tendency is to regard the existence of any additions, however general, as enough. Perhaps "yeoman" is the most general nnd unexceptionable. Where a slave is charged with an offence, the proper addition seems to be, "that a negro slave, the property of B." &c.; State v. Cherry, 3 Murph. 7.

(Several defendants with same additions). If several defendants have the same addition, it is safest to repeat the addition after each name, applying it particularly to every one of them; and where a father has the same name and the same addition with a defendant, being his son, an indictment is defective unless it add the addition of the younger to the other additions; but where the father is a defendant without his son, it is clear that there is no need of the addition of the elder. Where L. W. Sr. and L. W. Jr. lived in the same town, on an indictment against L. W. evidence is not admissible of acts done by L. W. Jr., as it is to be presumed that the indictment means L. W. Sr.; State v. Vittum, 9 N. Hamp. 519; Jackson, ex dem; Pell v. Provost, 2 Caines 165; but see Com. v. Perkins, 1 Pick. 388; State v. Grant, 22 Maine 171; Coit v. Stark weather, 8 Conn. 280; see postea, p. 11.

In Indiana it seems no addition is necessary; thus in State v. M'Dowell, 6 Blackf. 49,

Dewey J. said: "The objection urged against the indictment is, that the defendant is not described by the addition of his degree, or mystery, and place of residence. By the common law no addition was required in indictments against persons under the degree of a knight; 1 Chit. C. L. 204. The statute of additions, 1 Hen. V. c. 5, enacts that defendants shall be described by adding to their names their estate, degree, or mystery, and place of residence, in all cases in which "the exigent shall be awarded." It has been held, in the construction of this statute, that in prosecutions which cannot be attended by the process of outlawry, the indictment need not give the addition of the defendant; 1 Chit. C. L. 206; Bacon Abr. Indictment ii.; ib. Misnomer 2; Rex v. Brough, 1 Wils. 244; Cro. Eliz. 148. The exigent, being a step in the proceedings of outlawry, is unknown to our law. It is therefore evident that the statute of additions, from its own terms, is not applicable to prosecutions in this state; and it is equally clear, that the common law does not require the defendant to be described by his addition.

(Mystery at time of finding). The additions of estate, degree, and mystery of the defendant, are not sufficient unless they be the same which he had at the time of the find. ing of the indictment; and in this respect such additions differ from that of place, which is sufficiently shown by naming the defendant lote of such a place; and such additions must be expressed in such manner that it may plainly appear to refer to the party; and therefore it is not well expressed by the addition of his mystery, naming him son of A. of B., butcher, because butcher refers to it rather than to the son; 2 Inst. 670; 2 Hale 177. (Place of residence of defendant). With respect to residence, it is a good addition of this kind to name the party late of a township named; see Dickinson's Q. S. p. 203; R. v. Yandell, 4 T. R. 521; in which respect this addition differs from that of the estate, degree, or mystery; and it is said that if the defendant be named commorant in A. late of B. it is sufficient; Cortizos v. Munoz, Stra. 924. As will be seen in the forms hereafter given, the residence in most of the states is held to be satisfied by the allegation "late of the county aforesaid," or "late of county;" sce also Wh. C. L. 70. In England greater exactness is required; and where in an indictment for an assault, defend. ant was described as late of A. in the county of B., without stating that A. was a parish, it was holden bad; although the offence was laid to have been committed at the parish aforesaid; for some certain venue must appear on the face of the record, and here the offence is laid at the parish aforesaid, and no parish is mentioned; R. v. Mathews, 2 Leach 664; 5 T. R. 162. In the city of New York the practice is to charge "late of ward in the city of New York."

With respect to addition of place, the best and most convenient course is to state that in which the prisoner committed the offence; for he is considered as conversant of that place, and by this means the confusion of stating two places in the indictment is void; Hawk. b. 2, c. 27, s. 125, 126.

(How error in name or addition operates). The only mode by which at any time advantage can be taken by a prisoner of any error in his name or addition, is by plea in abatement; State v. Lorey, 2 Brevard 395; Lynes v. State, 5 Port. 236; State v. Hughes, 2 Har. & M'H. 479; see State v. Newman, 2 Car. Law Rep. 74; Com. v. Dedham, 16 Mass. 146; Turns v. Com., 6 Met. 225; Com. v. Sayers, 8 Leigh 722; R. v. Granger, 3 Burr. 1617; though where no addition is given, or where there is no christian name, the proper course is to move to quash. If he once pleads the general issue not guilty, he can. not afterwards take advantage of any such error, for he is precluded and estopped by his plea; and he is not obliged to take advantage of an error in these respects by pleading in abatement, in order to make his acquittal a valid bar to any subsequent prosecution for the same offence; for if he be afterwards indicted for the same offence by another name or addition, he may show himself to be the same person by averment and evidence, and rely with success on his previous acquittal, notwithstanding the variance; Hawk. b. 2, c. 23, s. 103, 104. A plea in abatement must be verified by affidavit exposing the defendant's real name, additions, or mystery, as the case may be; Com. v. Sayers, 8 Leigh 722; R. v. Granger, 3 Burr. 1607; Rev. Stat. Mass. c. 136, s. 31. An error as to one party of several can only be taken advantage of, in any stage, by him, and does not affect the indictment as to the others; 2 Hale 177. A plea in abatement was always of small benefit to the party accused, because he was bound to set out his true name and addition in it; and, if successful, might be indicted for the same felony; while if unsuccessful, in the English practice, sentence followed in misdemeanor; 1 Chit. C. L. 461; though here the inclination of authority, judging from the doctrines arising in demurrer, is that the judgment would be respondeat ouster; Wh. C. L. 133-4; State v. Wilkins, 17 Verm. 152; Ross v. State, 9 Miss. 696.

(f) Though some precise day, month, and year must be charged; State v. Beckwith, 1 Stew. 318; Wh. C. L. 72; R. v. Taylor, 3 B. & C. 502; it is not necessary to sustain the precise allegation in proof, if the time stated be previous to the finding the indictment; Starkie C. P. 58; Shelton v. State, 1 Stew. & Port. 208; but it is material to show that

the prosecution was commenced in due time, where it is enacted that it shall be com. menced within a particular time; see Salk. 369, 378; Carth. 501; 5 Mod. 446; 1 Ld. Raym. 582; 10 Mod. 248; and where the offence is statutory, the time laid must be subsequent to the passage of the statute by which the offence was created. It is not, how. ever, necessary to allege time to any charge of mere negation or omission; R. v. Holland, 5 T. R. 616; Starkie's C. P. 61. If the offence is laid on an uncertain or impossible day, or on a future day, or on different days, or on such a day as renders the indictment repug nant to itself, the objection is fatal in arrest of judgment even after verdict. Thus judg ments were arrested when the date charged was November, 1801, and the 25th year of American Independence, the dates being inconsistent; State v. Hendricks, Conf. N. C. R. 369; where on a charge of compounding felony, the date of the commission of the offence was laid anterior to the date fixed for the commission of the larceny; State v. Dandy, 1 Brevard 395; and where the crime was alleged to have been committed on September 30, 1033; Serpentine v. State, 1 How. Miss. R. 260. So if the date be left blank; State v. Beckwith, 1 Stewart 318; State v. Roach, 2 Hay. 552; Tam v. State, 3 Miss. 43. Where, however, an indictment tried in the first year of George IV., stated the offence as having been committed "on the 20th July, in the fourth year of the reign of king George the Fourth," it was holden that the words "fourth year of the" might be rejected as superfluous, and the indictment sustained; R. v. Gill, R. & R. 431; see R. v. Scott, R. & R. 414; 1 Russ. C. M. 562, S. C. Thus, where it was made a statutory misdemeanor to exhibit lights to persons at sea "between September and April," an allegation that the defendant exhibited lights on the 9th March was held sufficient without specifically averring that he did so "between September and April;" 6 Geo. IV. c. 164, s. 52; R. v. Brown, M & M. 163; per Littledale and Gaselee, Js.; see note to Harding v. Stokes, Tyr. & Gr. 599. It seems that where an offence is laid contrary to the form of a statute, it is not necessary to state it to have been committed "after the passing of the act," though it took place very recently before, if the time when it took place is laid and proved to be after the act passed; see judgment of Parke B., in Harding v. Stokes, Tyr. & Gr. 605. If, in point of fact, an offence is committed after a day fixed by a statute, as that on and after which an offence may be laid and tried as if committed in the county in which the offender is apprehended, and the statute does not vary the nature and character of the offence, the having laid the day in the indictment before the day fixed by the statute, will not vitiate; R. v. Treharme, 1 Mood. C. C. 298. Clerical errors, however, in setting forth the date, are liberally treated. Thus, "first March" was held sufficient for "first of March;" Simmons v. Com., 1 Rawle 142; and where the caption was " December Sessions, 1818," the date was held sufficiently well expressed by the averment "in the year aforesaid;" Jacob v. Com., 5 S. & R. 315. The setting forth the date in Arabic figures is enough; State v. Gilbert, 13 Verm. 647; State v. Smith, Peck 165; State v. Hodgdon, 3 Verm. 481. The word "being" (existens) will, unless necessarily connected with some other matter (e. g. by the word then), relate to the time of the indictment rather than of the offence; see 1 Chit. C. L. 2d ed. 220, and Reg. v. Silversides, 3 Q. B. R. 405; Wh. C. L. 75.

(Hour of committing offence). It is not necessary to state the hour of committing the offence, except where its indictable nature or character is made by statute to depend on the hour of its being committed. Thus, as burglary cannot be committed in twilight, it is necessary in case of that offence to allege a certain hour in the night at which it was committed, in order that the fact might appear on the face of the indictment to have been done after the twilight of the evening, and before that of the morning; R. v. Waddington, 2 East P. C. 513; Ï Hale 549; 2 Hawk. c. 25, s. 76, 77; State v. G. S., 1 Tyler 295; Thompson v. Com., 4 Leigh 652; State v. Mather, Chip. 32. It is not enough to lay this offence as having been committed between the hour of twelve at night and nine the next morning; State v. Mather, Chip. 32.

(g) (Vi et armis). Whatever may once have been thought of the magic of these words, it is now settled that they are wholly unessential. The statute 37 Hen. VIII. c. 8, clearly dispenses with them, even if before that they possessed any signification or importance; and the current of authority, even in those states where that statute is not in force, is to reject them altogether; 2 Hawk. c. 25, s. 90; 3 P. Wms. 497; Wh. C. L. 102; State v. Kean, 10 N. Hamp. 347; State v. Munger, 15 Verm. 290; 2 Tyler 266; Tipton v. State, 2 Yerg. 542; Territory v. M'Farlane, 1 Mart. 224; State v. Thomson, 2 Rice's Dig. 386. In Com. v. Martin, reported 2 Barr 244, the exception taken to the indictment, which was for assault and battery, was the want of those words, and though it does not distinctly appear so on the face of the report, the intimation of the court is clear that they are wholly unnecessary.

(h) In this country the usual practice in averring place is by charging the offence to have taken place in the county where it was committed; Wh. C. L. 77; Duncan v Com., 4 S. & R. 448. In Massachusetts, however, it has been held, that if from the terms of

the location of a town or district by the act of incorporation, the court cannot conclude that the whole town, district, or unincorporated place lies in the same county, both town and county must be averred; Com. v. Springfield, 7 Mass. 9; and in the same case it was declared, that the proper course in that state in all capital cases, is to lay both county and town. In the city of New York the practice is to name the ward, in the city of New Orleans the parish.

(Repeating time and place to every material fact). When time and place have been once named with precision, the words "then and there," referring to the last antecedent, will afterwards sufficiently express both; Wh. C. L. 74; Stout v. Com., 11 S. & R. 177. Where the circumstances stated in indictments for misdemeanors are merely continuous, as in assaults with aggravation, one mention of time and place as applicable to all circumstances, will suffice; but this is otherwise in felonies where distinct and independent circumstances are necessary to the charge; 2 Hale 178; R. v. Cotton, Cr. El. 738. But the mere qualification "and" without the word "then" is insufficient to extend the original allegation of time to the averment thus introduced; Wh. C. L. 74. Where the time and place are inmaterial, they may be introduced by the words to wit; though without a scilicet in such case, a variance would not prejudice; and as in cases where they are of the essence of the charge, a scilicet will not aid a variance in proof; Busby v. Watson, Bla. Rep. 1050; it is rarely ever useful; Dickinson's Q. S. 6th ed. 212.

(i) (The description of the party against whose person or property the offence was committed). The indictment must be so certain as to the party against whom the offence was committed, as to enable the prisoner to know and understand who that party is, and what charge he is called on to answer; 2 Curw. Hawk. 319. And an error in setting forth the names of such party, is much more serious than in setting forth the name of the defendant himself, as the latter can only be taken advantage of by abatement, but the former is proper ground for acquittal, in case of variance in evidence, or arrest of judg. ment in case of variance on record; Wh. C. L. 71. The mis-spelling of a surname, when its usual pronunciation is satisfied by the manner in which it is written in the record, as "Whyneard" for "Winyard," is sufficient; R. v. Foster, R. & R. 412; and in one case the court went so far as to say that "Harrison" was not a fatal variance from "Harris;" State v. France, 1 Overton's R. 434; though in Pennsylvania, in Com. v. Gillespie, 7 S. & R. 469, the extreme position was taken that "Burrall" was sufficient to arrest judgment where the proof was that the name was Burril. The word, however, it must be observed, occurred in the copy of a lottery ticket, pretended to be set out in the indictment. A mere statement, it seems, of the christian name, without any surname, will not suffice; Hawk. b. 2, c. 25, s. 71. Where the name and addition of the injured party can. not be ascertained, as where a body of a murdered person is found who cannot be identi fied, or goods are found on a highwayman, &c., the indictment may allege the party to be "to the jurors unknown;" 2 Hale 181; see 2 B. & Ald. 580. To support the description of "unknown," remarks Mr. Serjeant Talfourd, it must appear that the name could not well have been supposed to have been known to the grand jury; Reg. v. Stroud, C. & K. 187. "Unknown" was held sufficient where there was evidence that the party injured, a bastard child who died at twelve days old unbaptized, had been called by its mother Mary Ann; R. v. Smith, 1 Mood. C. C. 295; S. C. 6 C. & P. 151. A bastard which had never acquired a name, is sufficiently identified by showing the name of its parent thus-"a certain illegitimate male child then lately born of the body of A. B. (the mother);" Reg. v. Mary and Jane Hogg, 2 M. & Rob. 380; see Reg. v. Hicks, 2 ib. 302; where an indictment for child-murder was held bad for not stating the name of the child or accounting for its omission. A bastard must not be described by his mother's name till he has acquired it by reputation; R. v. Clark, R. & R. 358; Wakefield v. Mackey, 1 Phill. R. 133, contra. A bastard child, six weeks old, who was baptized on a Sunday, and down to the following Tuesday had been called by its name of baptizm and mother's surname, was held by Erskine J. to be properly described by both those names in an indictment for its murder; Reg. v. Crans, 8 C. & P. 765; but where a bastard was baptized "Eliza," without mentioning any surname at the ceremony, and was afterwards, at three years old, suffocated by the prisoner, an indictment, styling it "Eliza Waters," that being the mother's sur name, was held bad by all the judges, as the deceased had not acquired the name of Waters by reputation; R. v. Ellen Waters, 1 Mood. C. C. 457. (N. B. No baptizmal register or copy of it was produced at either trial. Semb.: "Eliza" would have sufficed; see Reg. v. Stroud, C. & K. 187, and cases collected; Williams v. Bryant, 5 M. & W. 447). In the previous case of R. v. Frances Clark, R. & R. 358, an indictment stated the murder of" George Lakeman Clark, a base-born infant male child, aged three weeks," by the pri soner, its mother. The child had been christened George Lakeman, being the name of its reputed father, and was called so, and not by any other name known to the witnesses. Its mother called it so. There was no evidence that it had been called by or obtained its mother's name of Clark. The court held him improperly laid Clark, and as nothing but

the name identified him in it, the conviction was held bad; see also R. v. Sheen, 2 C. & P. 634. However, in Reg. v. Biss, 8 C. & P. 773, an indictment against a married woman for murder of a legitimate child, which stated “that she, in and upon a certain infant male child of tender years, to wit, of the age of six weeks, and not baptized, feloniously and wilfully, &c., did make an assault, &c.," was held insufficient by all the judges, as it neither stated the child's name, nor that it was "to the jurors unknown." Semble: it would have sufficed to state him as "a certain male child, &c., of tender age, that is to say, about the age of six weeks, and not baptized, born of the body of C. B.;" sce 2 C. & P. 635, n. ; see also R. v. Sheen, 2 C. & P. 634. Where a party is as usually known by one name as another, he may be described by either, and by the name which he has assumed, even though shown not to be his right name; R. v. Norton, R. & R. 509; R. v. Berriman, 5 C. & P. 601; Anon., 6 C. & P. 408. So where an indictment charged the name of the person slain as Marie Gardiner alias Maria Bull, and the proof showed her real name to be Maria Frances Bull, though she was generally known by the name in the indictment, it was held sufficient; State v. Gardiner, Wright's R. 392. If a false description be added to the name, as if a female feloniously married by a man whose wife is still alive, be described a "widow," when she is known to be a singlewoman, the error will be fatal, though no description of her was requisite; R. v. Deeley, 1 Mood. C. C. R. 303; 4 C. & P. 579 (A. D. 1831). Where the party injured has a mother or father of the same name, it is better to style the prosecutor "the younger," as it may be presumed that the parent is the party meant; for George Johnson means G. J. the elder, unless the contrary is expressed; Singleton v. Johnson, 9 M. & W. 67. But this was held immaterial, where it is sufficiently proved who Elizabeth Edwards, the party described assaulted, was, viz. the daughter of another Elizabeth Edwards; R. v. Peace, 3 B. & Ald. 519; see ante, p. 7. A variance in the name or identity of the party laid as injured, will entitle the prisoner to acquittal; Dickinson's Q. S. 6th ed. 213. See also generally on this head, 2 Hale's Pleas of the Crown, p. 239, ed. by Stokes and Ingersoll, n. 1, to which work the practitioner is referred as being at the same time the most satisfactory edition of Hale extant, and as containing a series of notes of singular learning and accuracy.

(j) (Allegation of intent). What the law forbids to be done, it becomes illegal to do wilfully; Fergus v. State, 6 Yerg. 345; Wh. C. L. 168; on which account the doing it will be the subject matter of an indictment as contempt of the statute; Crowther's case, Cro. El. 655; without the addition of any corrupt motives; per Ashurst J., R. v. Sainsbury, 4 T. R. 451, cited 2 A. & E. 612; for disobedience of an act of the legislature, is indictable on the principles of the common law, though a pecuniary penalty may also be provided for it; R. v. Jones, Strange 1146; indictment for not taking on defendant the office of overseer on a regular appointment; R. v. Harris, R. v. Crorsley, 10 A. & E. 132. But the intention of the party at the time he commits an act charged as an offence, is often as necessary to be proved as any other fact laid, though it can only be proved by overt acts, every man being supposed to intend the necessary consequence of his own acts; R. v. Harrington, R. & R. 207. When more than one criminal intent is averred, the averment is divisible, and only one need to be proved; e. g. if a person is charged with assaulting a child with intent to abuse and carnally know her, he may be convicted of an assault with an intent to abuse her only; R. v. Dawson, 2 Stark. 62; Shaw's case, 2 R. 79; Figgins v. Cogswell, 3 M. & S. 369. As to intent in uttering a counterfeit half-crown in charity, see Page's case (on 2 W. IV. c. 34, s. 7), 8 C. & P. 22; and Alldy's case for erasing and altering a stamped post-horse license, both before Ld. Abinger C. B., 8 C. & P. 136.

In R. v. Hunt and another, 2 Camp. 583, an information charged that defendant" composed, printed and published" a libel. The proof was of publication only; Ld. Ellenborough held it sufficient for a conviction, adding, "If an indictment charges that the defendant did and caused to be done' a particular act, it is enough to prove either. The distinction runs through the whole criminal law; and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified."-Defendants convicted.

In R. v. Williams, 2 Camp. 646, defendant was charged with "composing, printing and publishing" a libel. His MSS. was produced and shown to have been delivered by him to a printer, who printed and sold copies by his orders. These copies differed from the indictment, and from the MSS. which was adhered to in it. Lawrence J., "defendant may be acquitted of printing,' and found guilty of composing and publishing.' Defendant convicted. See also 3 M. & S. 371; 2 Bla. R. 789.

(k) (Conclusion of indictments at common law). The old reason of the ordinary conclusion of an indictment at common law, "against the peace of our said lady the queen, her crown and dignity," was that these words were always necessary in order to show to whom the forfeiture accrued. Whether in misdemeanor, R. v. Taylor, 3 B. & C. 502; common law felony, R. v. Cook, R. & R. C. C. 176; 2 Russ. C. & M. 172; or felony