such. It was formerly usual to insert the names of twelve grand jurors, at the least, in the caption; and Lord Hale says that this is necessary; though, as has just been seen, it is now thought enough to aver that twelve united. y In fact, it having lately been objected upon error, that the caption did not contain the names of any of the jurors, the House of Lords, after consulting the judges, affirmed the judgment; and in a later case z the chief justice agreed that the insertion of the names is not necessary. And a variance in the names of the grand jurors is not fatal; b nor is the omission of the word "grand" before "jurors." b1 § 229. When an indictment purports to be on the affirmation of some of the grand jurors, it is said, in New Jersey, that it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or it will be fatally defective; c but such is not the usual practice; the indictment going no further, in most states, than to aver the fact of its being made on the oaths and affirmations of the grand jurors. § 230. If the caption omit to state the grand jury were sworn, it will be presumed they were sworn; at least the recital in the record that "the grand jury were elected, empanelled, sworn, and charged," will be sufficient. d § 231. In New York, it was ruled that an indictment taken at the sessions must, in the caption, state that the grand jury were, then and there, sworn and charged; the omission of the words "then and there" being fatal on motion in arrest of judgment;e but the contrary was held in Mississippi, where it was said that, if it appear from the record that the grand jurors were sworn, it will be presumed that they were then and there sworn. f § 232. Defects in the caption of the indictment, as not naming the judges, the jurors, and the county, which would be fatal if b1 U. S. v. Williams, 1 Clifford C. r State v. Jones, 4 Halsted, 357. 2 Hale, 167. z R. v. Marsh, 6 Ad. & Ell. 236. a R. v. Aylett, 6 Ad. & Ell. 247; Archbold, by Jervis, 24. C. 5. c State v. Harris, 2 Halsted, 361. d McClure v. State, 1 Yerger, 206, per Catron, J. e People v. Guernsey, 3 Johns. Cas. b State v. Norton, 3 Zabr. 33; 265. State v. Dayton, Ibid. 49. f Woodsides v. State, 2 How. Miss. R. 655. the indictments were removed into a superior court, may be supplied in the court in which it is taken by reference to other records there. g And in New Jersey, it is said that it may be amended in the supreme court, on proper evidence of the facts; or the certiorari may be returned to the court below, and the amendment made there. h Such also is the practice in South Carolina. i It must appear in each count of an indictment that it was found by the jurors on their oaths, and a want of such allegation in a subsequent count will not be aided by such allegations in a former count, where there is no reference to such former count for the finding of that fact. k The indorsement upon an indictment is no part of it. k1 IV. NAME AND ADDITION OF DEFENDANT, AND NAME OF PROSECUTOR AND THIRD PARTIES. 1. WHEN DEFENDANT IS A CORPORA TION, § 233. 2. How OFTEN THE DEFENDANT'S NAME MUST BE REPEATED, AND HOW FAR A SUBSEQUENT FULL NAME CURES A FORMER OMISSION, § 234. 3. WHAT IS A MISNOMER, § 236. 4. ALIAS DICTUS, § 237. 5. DEFENDANT'S MIDDLE NAMES, § 238. 6. ABBREVIATIONS AND INITIALS, § 239. 7. WHERE DEFENDANT'S NAME IS UNKNOWN, § 242. 8. ADDITION AND MYSTERY, § 243. 9. JUNIOR AND SENIOR, § 249. 10. DESCRIPTION OF PARTIES INJURED, AND THIRD PARTIES, AND HEREIN OF PERSONS UNKNOWN, § 250. 11. GENERAL SUMMARY OF PRACTICE, § 259. 1. When Defendant is a Corporation. § 233. The indictment must be certain as to the name of the person indicted. The inhabitants of a parish, however, in England, may be indicted for not repairing a highway, or the inhabitants of a county, for not repairing a bridge, without naming any of them.m So in Pennsylvania, it was determined, that where an act of assembly directed "the president, managers, and g U. S. v. Thompson, 6 McLean, j Clark v. State, 1 Carter (Ind.), 156; English v. State, 4 Texas, 125; 253. Pennsylvania v. Bell, Add. 173; Com. v. Bechtell, 1 Amer. Law Journal, 414. h State v. Jones, 4 Halsted, 357; State v. Norton, 3 Zabr. 33. i State v. Williams, 2 McCord, 301; Vandyke v. Dare, 1 Bailey, 65. See post, § 497. k State v. McAllister, 26 Maine (13 Shep.), 374. k1 Collins v. People, 39 Ill. 233. Bac. Ab. Misno. B.; Indict. s. 2; 2 Hale, 175; Cro. C. C. 34; Chitty's C. L. 167. Post, § 595, &c., as to what is variance in this respect. m 2 Roll. Ab. 79; Archbold C. P. 25. See ante, § 85, &c. company" of a certain turnpike-road to remove a gate on the road, that an indictment would not lie against the president and managers, individually, for not removing the gate. n In Maine, however, it is said, that where an offence is committed by virtue of corporate authority, the individuals concerned in its commission, in their personal capacity, and not as a corporation, must be indicted; o and in Virginia it has been determined, still more broadly, that a corporation cannot be impleaded criminaliter by its artificial name at common law. p But for all disobedience to statutes and derelictions of duty the better opinion is that a corporation aggregate may be indicted by its corporate name; which name must, as a rule, be correctly alleged, as it existed at the time of the offence. q 2. How often the Defendant's Name must be repeated, and how far a subsequent Full Name cures a former Omission. § 234. In an indictment the name of the defendant should be repeated to every distinct allegation; but it will suffice to mention it once as the nominative case in one continuing sentence. An indictment against "Edward Toney Joseph Scott," laborers, intended for Edward Toney and Joseph Scott, is bad. q1 § 235. If the surname of the defendant be omitted in the presenting portion of an indictment, the defect is fatal, though the full name be mentioned in subsequent allegations referring to the name as their antecedent; as where the grand jurors present that “Hawkins” did falsely, &c., pretend that he, the said " Hawkins Hand," had a large amount of money, &c. And the defendant may plead in abatement that his name is not "Hawkins," but "Hawkins Hand." r n Com. v. Demuth, 12 Serg. & Railway Co. 3 Ad. & El. Q. B. 223; Rawle, 389. 9 C. & P. 469; Com. v. Phillipsburg, R. 41. o State v. Great Works, 20 Maine, 10 Mass. 78; Com. v. Dedham, 16 Ibid. 142; State v. Vermont Cent. R. R. 28 Vt. 583; Com. v. Demuth, 12 S. & R. 389. See McGary v. People, 6 Hand. (45 N. Y.), 153. p Com. v. Swift Run Gap Turnpike Co. 2 Virg. C. 362. See ante, $ 85, &c. q Ante, § 85, 86; R. v. Great North of England R. R. Co. 9 Q. B. 315; R. v. Mayor, &c. of Manchester, 7 El & Bl. 453; R. v. Birm. & Glou. q1 State v. Toney, 13 Texas, 74. 165. 3. What is a Misnomer. § 236. A plea in abatement, in the language of Mr. Chitty, has always been allowed when the Christian name of the defendant is mistaken, 8 but it seems formerly to have been supposed that an error in the surname was not thus pleadable. t But it is now the settled law that a mistake in the latter is equally fatal with one in the former. u As will be seen, however, if the sound of the name is not affected by the misspellings, the error will not be material. v If two names are, in original derivation, the same, and are taken promiscuously in common use, though they differ in sound, yet there is no variance. w A blank in either Christian name or surname, is ground for a motion to quash, or plea in abatement. w 4. Alias Dictus. § 237. It has been holden, that a defendant cannot be described with an alias dictus of the Christian name, z but a man may be described by a second surname, if laid under an alias. y The surname may be such as the defendant has usually gone by or acknowledged; and if there be a doubt which one of two names is his real surname, the second may be added in the indictment after an alias dictus, z thus, "Richard Wilson, otherwise called Richard Layer." Proof of either will be enough. z1 s 2 Hale, 176 237, 238; 2 Hawk. c. 25, s. 68; Bac. Ab. Ind. G. 2, Misn. B.; Burn, J., Indict.; Gilb. C. P. 217. Post, § 536. t 2 Hale, 176; 2 Hawk. c. 25, s. 69; Burn, J., Indict.; Williams, J., Misn. ; Bac. Ab. Misn. B.; Com. v. Demain, Brightly R. 441. u 10 East, 83; Kel. 11, 12. v 10 East, 84; 16 East, 110; 2 Hawkins, c. 27, s. 81. Post, § 258, 597. w 2 Rol. Ab. 135; Bac. Ab. Misn., where the instances of this principle are stated at large. w Post, § 518, 537. 222 x 1 Ld. Raym. 562; Willes, 554; Burn, J., Indict.; 3 East, 111. This doctrine, it is said, is not well founded; for, admitting that a person cannot have two Christian names at the same time, yet he may be called by two such names, which is sufficient to support a declaration or indictment, baptism being immaterial. R. T. H. 26; 6 Mod. 116; 1 Camp. 479. z Bro. Misn. 37. z1 State v. Graham, 15 Rich. (S.C.) 310. 5. Defendant's Middle Names. § 238. In New York, it has been determined that the law never recognized more than one Christian name, and, therefore, when the middle names of the defendant were omitted, the omission was right. a And the same view is taken in Ohio and Tennessee, with the qualification that if a middle name is nevertheless set out, it must be proved as laid. b In Illinois and California the last point has been differently held. 61 It was held a misnomer, however, in Massachusetts, when T. H. P. was indicted by the name of T. P. c And in Missouri, it has been held that the omission of the first name, giving only the middle, is fatal. cl 6. Abbreviations and Initials. § 239. Where surnames, with a prefix to them, are ordinarily written with an abbreviation, the names thus written in an indictment are sufficient. d § 240. Where a man is in the habit of using initials for his Christian name, and he is so indicted, and the fact whether he was so known is put in issue, and he is convicted, the court will not interfere on that ground. e § 241. If a man, by his own conduct, renders it doubtful what his real name is, he is answerable for the consequences. f 7. When Defendant's Name is unknown. § 242. Where the name of the prisoner is unknown, and he refuses to disclose it, he may be described as a person whose name is to the jurors unknown, but who is personally brought before them by the keeper of the prison; g but an indictment against him as a person to the jurors unknown, without something to ascertain whom the grand jury meant to designate, a Roozevelt v. Gardiner, 2 Cowen, 463; People v. Cook, 14 Barb. 259; S. P. State v. Manning, 14 Texas, 402. State v. Williams, 20 Iowa, 98. b Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.), 266. b1 People v. Lockwood, 6 Cal. 205; Miller v. People, 39 Ill. 457. c Com. v. Perkins, Pick. 388. cl State v. Martin, 10 Mo. 391. d State v. Kean, 10 N. Hamp. 347. See Com. v. Kelcher, 3 Met. (Ky.) 484, where "Mrs. Kelcher" was held sufficient on demurrer. e City Coun. v. King, 4 McCord, 487; and see cases cited post, § 255. f Ibid.; Newton v. Maxwell, 2 Crompt. & Jer. 215. g State v. Angell, 7 Iredell, 27. |