prohibit any act to be done, and by a substantive clause give 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; Vide R. v. but if the act be not prohibitory, but only that if any person shall Harris, do such a thing, he shall forfeit so much, to be recovered by action of debt, bill, or plaint, or information, then he cannot be indicted for it, but the proceeding must be by action, bill, plaint, or information.

4 T. R. 202.

Also, where a statute adds a further penalty to an offence pro- 2 Haw. c. 25. hibited by the common law, and prescribes a partial remedy by a § 4.

summary proceeding, there either method may be pursued. There- 2 Burr. 803. fore it is indictable to disobey an order of sessions for the maintenance of relations under the stat. 43 Eliz. c. 2. though that statute gives a penalty; for before the statute of Elizabeth disobedience to an order of sessions was an offence indictable at common law. R. v. Robinson, Clerk, 2 Burr. 799.

indictable.

The true rule of distinction seems to be, that where the offence Where offences intended to be guarded against by a statute, was punishable created by before the making of such statute prescribing a particular method statute are not of punishing it, there such particular remedy is cumulative, and does not take away the former remedy. But where the statute only enacts, "that the doing any act not punishable before, shall for the future be punishable in such and such a particular manner," there it is necessary that such particular method, by such act prescribed, must be specifically pursued; and not the common law method of an indictment. Per Lord Mansfield C. J. S. C. 2 Burr. 805.

In R. v. Balme, 2 Cowp. 648. The defendants were indicted for disobeying an order of justices on the statute 13 G. 3. c. 78. for the widening of a highway. It was objected, that a summary method of proceeding before the justices being directed by the statute for the recovery of a penalty, the prosecution ought to have been in that form, and not by way of indictment. But by the Court, disobeying an order of justices is an offence at common law; and, therefore, the prosecutor might proceed either way; the penalty given by the statute is only accumulative.

R. v. Jackson, 1 Cowp. 297. 1 Cowp. 297.

And it is a general rule that subsequent statutes, which add accumulative penalties, do not repeal former statutes. Wherever there is a prohibitory law, if it be still in force, the proper remedy under it is by indictment; and where a statute 4 T. R. 457. forbids the commission of any act, the doing it wilfully is indict- 5 T. R. 607. able, although it be done without any corrupt motive.

It is also a clear and established principle, that when a new Per Ashhurst J. offence is created by an act of parliament, and a penalty is 4 T. R. 205. annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause, on the ground of its being a misde

meanor.

III. Within what time an Indictment shall be brought.

By the 31 El. c. 5. All indictments upon any statute penal, 51 Eliz. c. 5. whereby the forfeiture is limited to the king, shall be sued within

31 Eliz. c. 5.

Several offences in one indict

ment.

3 T. R. 105.

2 Burr. 984.

Per Grose J.
S.C.

One indictment may be preferred for assaulting two

persons.

two years after the offence committed; if the forfeiture be limited to the king and prosecutor, the suit shall be in one year and in default thereof, the same shall be sued for the king within two years after that year ended. But where a statute limits a shorter time, the suit shall be brought within such time limited.

But for indictments of felonies and other misdemeanors where there is no forfeiture to the king, or to the king and prosecutor, no time is limited by any statute; but the several acts of general pardon have the effect of a like limitation. The last act of which kind was that of the 20 G. 2. c. 52. for certain offences committed before June 15. 1747.

IV. How far several Offenders or several Offences may be joined in one Indictment.

It is no objection in arrest of judgment that an indictment contains several charges of the same nature (as several misdemeanors), in the different counts; for the judgment is the same; it would be otherwise indeed, if the legal judgment on each count were different, for that would be like a misjoinder in civil actions. Young & others v. the King in error, 3 T. R. 107.

[It was said by Buller J., in Young & others v. the King in error, "In misdemeanors, the case R. v. Benfield & Saunders, in Burrow, shews that it is no objection to an indictment that it contains several charges. The case of felonies admits of a different construction; but even there it is no objection in this stage of the prosecution. On the face of an indictment every count imports to be for a different offence, and is charged as at different times; and it does not appear on the record whether the offences are or are not distinct. But if it appear before the defendant has pleaded, or the jury are charged, that he is to be tried for separate offences, it has been the practice of the judges to quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to a juryman's trying one of the offences, though he might have no reason to do so in the other. But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecutor to elect on which charge he will proceed. But if the case has gone the length of a verdict, it is no objection in arrest of judgment. So, where evidence affects several persons differently, I have selected the evidence as applicable to each, and left their cases separately to the jury."

This is no objection even in the case of felonies, still less is it so in misdemeanors.] (a)

It appears to have been formerly holden that a person could not be prosecuted upon one indictment for assaulting two persons, each assault being a distinct offence. R. v. Clendon, 2 Ld. Raym. 1572. 2 Str. 870. But in R. v. Benfield & Saunders, 2 Burr. 984., the Court held this case of Clendon not to be law, and said, Cannot the king call a man to account for a breach

(a) A count for embezzling bank-notes upon the statute may be joined with a count for larceny. Rez v. Johnson, 3 M. & §. 539.

of the peace because he broke two heads instead of one? It is a prosecution in the king's name for the offence charged; and not in the nature of an action, where each person injured is to recover separate damages.

Nor is it any objection on demurrer, that several different de- Several offer.dfendants are charged in different counts of an indictment for ers joined in offences of the same nature, where there may be the same plea one indictment. and the same judgment, though it may be a ground for an application to the discretion of the court to quash the indictment. R. v. Kingston & others, 8 East, 41.

If there be several offenders who commit the same offence, Several though in law they are several offences in relation to the several offenders. offenders, yet they may be joined in one indictment; as if several commit a robbery or burglary, or murder. 2 Hale, 173.

Larcenies committed of several things, though at several times, and from several persons, may be joined in one indictment. 2 Hale, 173.

[If the crime wholly arise from any such joint act, which in 2 Haw..c. 95. itself is criminal, without any regard to any particular personal $ 89. default of the defendants, the indictment may charge the defendants jointly or severally; and some may be acquitted and some convicted. But where the offence indicted does not wholly arise from the joint act of all the defendants, but from such act joined with some personal particular defect or omission of each defendant, without which it would be no offence, the indictment must charge them severally and not jointly; because the offence of each defendant arises from a defect peculiar to himself.]

Two may be indicted jointly for a battery or extortion. Reg. v. Atkinson, 1 Salk. 382.

But in Rex v. Kingston & others, 8 East. 46., where several were indicted for an offence against an act of parliament, and there were several counts, in some of which some were named and not the rest, and each count charged each set of persons jointly, and this was objected to on demurrer, as being a misjoinder of counts against different sets of offenders, and not like charging the same defendants with different offences ejusdem generis, in different counts; Lord Ellenborough C. J. said, this would have been a good ground of application to the court to quash the indictment for the inconvenience which might arise at the trial, from joining different counts against different offenders; but where to the offences so charged in different counts there may be the same plea and the same judgment, there is no authority for saying that such joinder in one indictment is bad in law; nor is there any legal incongruity on the face of it to warrant us in giving judgment for the defendants on demurrer.

So in the aforesaid case of R. v. Benfield & Saunders, 2 Burr. 985. which was for the defendants' singing a libellous song against John and Jane Cooke, the court held, that this being a joint act, done by both (for they had both joined in the act of singing the libellous matter), they might well be joined in one and the same indictment.

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

Vide 7 T. R. 318.

2 Hale, 157.

8 Howell's St. Tri. 770.

Howell's St. Tri. 857.

3 Inst. 25.

Haw. c. 25. 129.

2 Haw. c. 25.

§ 2.

abetting in the principal, and accessary before or after. 2 Hale, 173.

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. Id.

But 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 R. v. Philips & others, 2 Str. 921. 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 inconveniences if this be allowed; one may be desirous to have a 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, Q. v. Hodgson & 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.

[In Tremaine's Pleas of the Crown, 138., there is a precedent of an indictment against three for perjury committed by the three; they deposed to one fact, but their evidence differed each from each. R. v. Jole.]

V. Whether the Grand Jury may examine Witnesses against the King.

Lord Hale says, that the grand jury at the assizes or sessions ought only to hear the evidence for the king, 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.

Which doctrine is also laid down by Ch. J. Pemberton, in the case of the earl of Shaftesbury.

But the learned editor of Hale's History observes upon this, that Sir John Hawkins, in his remarks on the said case, 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.

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

VI. How many Witnesses are requisite to an Indictment. An indictment be found upon may the oath of one witness only, unless it be for high treason, which requires two witnesses, and unless, in any instance, it be otherwise specially directed by act of parliament.

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 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.

But where there are two counts in the indictment, as one for a R. v. Fieldriot, another for an assault; the same may be considered as two house, distinct indictments; and the jury may affirm the bill as to one of 1 Cowp. 325. the counts, and reject it as to the other.

And where a bill is presented for murder, the grand jury may find a true bill for manslaughter only.

VIII. Indictment to be in English.

By 4 G. 2. c. 26. 6 G. 2. c. 14. All indictments, informations, inquisitions, and presentments, shall be in English, and be written in a common legible hand, and not court hand; on pain of 50l. to

him that shall sue in three months.

IX. Form of an Indictment.

In order to understand this matter rightly, it is judged requisite first to insert the entire form of an indictment, and then to take it in pieces, and explain the several parts of it in their order. Which order shall be as follows:

1. The caption.

2. The description of the person indicted.

3. Of the allegation of time, and the words vi et armis.

4. Of the allegation of place.

5. The description of the person indicting.

6. The description of the offence.

7. a. The conclusion, for an offence at common law.

b.

C.

statute.

for an offence by statute.

for an offence both at common law and by

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

The caption of the indictment is no part of the indictment itself, 2 Hale, 166. 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 for the record of the indictment, as it stands upon the file in the court where it is taken, is only thus, The jurors for our lord the king upon their oath present; when this comes to be returned upon a certiorari, it is more full and explicit, as follows:

Westmorland.

AT the general quarter sessions of the peace holden at Appleby in and for the county aforesaid, the day of in the year of the reign of our sovereign lord George the third, of the united kingdom of Great Britain and Ireland, king, defender of the faith, before J. P. and K. P. esquires, and others their associates, justices of our said lord the king, assigned to keep the peace of our said lord the king in the said county, and also to hear and determine divers felonies, tres