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other aid, with intent that such offender might avoid or escape from arrest, trial, conviction or punishment. (c)

An indictment against an accessary after the fact, the principal having been convicted, should, after reciting the fact of the indictment against the principal for a felony, and of his conviction upon it, charge that the defendant well knowing that the principal had committed such felony, did feloniously conceal or aid him, &c.(d)

Venue.] The revised statutes provide that an indictment against an accessary to any felony may be found in the county where the offence of such accessary shall have been committed, notwithstanding the principal offence was committed in another county; and that the like proceedings shall be had thereon, in all respects, as if the principal offence had been committed in the same county.(e)

Evidence.] If the principal has been convicted, the record of his conviction, or an examined copy, will be conclusive evidence of such conviction having taken place, and prima facie evidence also of the guilt of the principal as to the offence of which he was convicted. (f) And the burthen of proof rests on the accessary, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted.(g) But it is not conclusive; and the accessary may avail himself of every matter, both of law and fact, to controvert the guilt of the principal. (h) The magistrate, however, we think, so far as the preliminary duty to be performed by him is concerned, should not enter upon this question of the principal's guilt or innocence, when a record of conviction is produced. But we would advise him, in all cases, to treat the record practically as conclusive, and leave the accessary to disprove the principal's guilt, at the trial, if he is able to do so.

cases.

Where the principal and accessary are indicted together, it is necessary to prove the principal guilty of the offence charged, as in ordinary It must also be proved that the accessary concealed, relieved, or assisted the principal, after the felony was committed; and that he knew at the time he did so, that the felony had been committed by the principal.(i)

(c) Matt. Dig. Cr. L. 420. 2 R. S. 699, § 7.

(d) 2 R. S. 699, § 7. Matt. Dig. 120. (e) 2 R. S. 727, § 48.

(f) Roscoe's Cr. Ev. 172. 10 Pick. Rep. 477. 2 Bailey, 35, 66.

(g) 10 Pick. 477.

(h) Fost. 365 362 1 Leach, 298, 323 and note, 509. Roscoe's Cr. Ev. 172, 173. But see 2 Whee. Cr. Ca. 325. (i) 3 Peer Wms. 439. Matt. Dig. 12.

The statutory provisions respecting the evidence of a former conviction, so far as they relate to principals and accessaries, are as follows:

A copy of the minutes of any conviction, with the sentence of the court thereon, entered by the clerk of any court, duly certified by the clerk in whose custody such minutes shall be, under his official seal, together with a copy of the indictment on which such conviction shall have been had, certified in the same manner, shall be evidence in all courts and places of such conviction, in all cases in which it shall appear by the certificate of the clerk, or otherwise, that no record of the judgment on such conviction, has been signed and filed.(k)

Where a record of such conviction has been signed and filed, the record itself, or an examined or certified copy must be produced. (1)

(k) 2 R. S. 739, § 10.

(1) Ante, 267.

BOOK V.

Indictment.

I. What is an indictment, and when it lies. II. Preferring; finding; and presentment. III. General requisites of an indictment.

IV. Form and several parts of an indictment.

V. Of the joinder of defendants, and of offences, in the same indictment.

VI. Granting copy of indictment; arraignment of defendant; plead

ing.

VII. In what cases indictment will be quashed.

VIII. Removal of indictment before trial or judgment.

IX. Trial of indictment.

X. Verdict and judgment.

CHAPTER I.

What is an Endictment, and when it lies.

An indictment is a criminal prosecution at the suit of the people, on the written accusation of one or more person or persons, preferred to the grand jury against one or more person or persons, and presented by the grand jury to the court. (a)

(a) 2 Hawk. P. C. ch. 25, s. 1.

In strict legal parlance, an indictment is not so called until it has been found "a true bill," by the grand jury. Before that, it is termed a bill only. (b)

By the revised statutes, it is provided that not more than twenty-three, nor less than sixteen, shall be sworn on the grand jury. (c) No indictment can be found without the concurrence of at least twelve grand jurors. But if twelve agree, it is sufficient, though the rest dissent. (d)

When such an accusation is found by the grand jury, without any bill brought before them, and afterwards reduced to a formed indictment, it is called a presentment. (e) And when it is found by jurors returned to inquire of that particular offence only which is indicted, it is properly called an inquisition.(ƒ)

An indictment lies for all treasons and felonies; for misprisons of treason and felony; for all contempts; disturbances of the peace; all oppressions; and all other misdemeanors of a public evil example ;(g) for blasphemies against God, the christian religion, or the holy scriptures; impostures in religion; open and scandalous breaches of morality; for such acts as tend to the prejudice of the community; seditious writings and practices; or such acts or attempts as tend to endanger the constitution, or bring the goverment into contempt; or to corrupt, mislead, and pervert public justice; or to prejudice the public good.(h)

In general the offence must be of a public nature, or tend to an offence of a public nature-as to a breach of the peace. Injuries of a private nature are not indictable unless they in some way affect the public.(i) Yet refusing or neglecting, when the party is bound by contract, to provide sufficient food or necessaries for an infant of tender age, whether child, servant or apprentice, so that its health is injured, is an indictable misdemeanor.(k) A mere private injury to an individual is not, in general, indictable, however. (1)

As to offences against statutes.] If a statute specify a mode of proceeding different from that by indictment, then if the matter were already an indictable offence at common law, and the statute introduced merely a different mode of prosecution and punishment, the prosecutor has still the option of proceeding by indictment at common law, or in the mode pointed out by the statute.(m)

Where a statute adds a further penalty to an offence prohibited by the

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common law, and prescribes a partial remedy by a summary proceeding, in that case either method may be pursued.(n) The true rule of distinction seems to be, that where a statute prescribes a particular method of punishing an offence which was before punishable, the latter remedy is cumulative and does not take away the former; but where an act not before punishable, is by a statute made for the future punishable, and a particular mode of proceeding is prescribed, that mode must be speciifically pursued. (o) Thus where the offence is created by statute, or the statute declares a common law offence committed under peculiar circumstances, not necessarily included in the original offence, punishable in a different manner from what it would be punished without such circumstances; or where the nature of the common law offence is changed by statute from a lower to a higher grade, as where a misdemeanor is declared a felony, the indictment must be drawn in reference to the provisions of the statute, and conclude against the form of the statute. But where the statute is only declaratory of what was previously an offence at common law, without adding to or altering the punishment, the indictment need not conclude against the form of the statute.(p)

And it is a general rule that the adding accumulative penalties in subsequent statutes does not repeal former statutes. (q)

The revised statutes contain a provision that when the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.(r) Hence it follows, that if in the same section, or in any other section or statute, a penalty is imposed for the violation. of such statute, an action at law for such penalty is the exclusive remedy for such violation, and no indictment will lie.

Against corporations.] An indictment lies against a corporation quasi a corporation, for neglecting to do what the common good requires; as where the corporation of a city have power to direct the excavating, deepening or cleansing of a basin connected with a river, and neglect to take the proper measures in that respect, whereby the air becomes infected by noisome and unwholesome stenches and a nuisance is created.(s)

See further as to indictments, and in what cases they will lie, ante 208, et seq.

(n) 3 Barn. & Ald. 161. 2 Stark. 536.

(0) 2 Burr. 805.

(p) 13 Wend. 159.

(q) 1 Cowp. 297.

(r) 2 R. S. 696, § 39.
(8) 11 Wend. 539.

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