3d. The charge must not be repugnant in a material matter.(1) But averments altogether superfluous and immaterial, seldom prejudice; for if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage.(m)

4th. It must be positive and not by recital. The offence must be charged positively, and not by recital. Therefore, the words "that whereas," render it invalid.(n) But in an indictment on a conviction, the conviction may be set forth shortly; and mere matter of inducement may sometimes be set forth by recital. (o) So may the order of a justice, on an indictment for disobeying it.(p)

5th. It must not be expressed disjunctively, as “ murdered or caused to be murdered;"(q) nor argumentatively, or by way of inference, but expressly and positively.(r)

6th. It must not be double.(s) Yet in burglary, it is usual to charge that the defendant broke and entered, with intent to commit a felony, and also that he committed the felony intended. Laying several overt acts in a count for high treason, is not duplicity;(t) and the same as to conspiracy. That the defendant published and caused to be published, is not double; nor is charging a man with one endeavor to commit two offences;(u) or with a battery upon two or more persons.(v) So, a count in an indictment for selling spirituous liquors without license, charging the sale of divers quantities of different sorts of liquors, to divers persons unknown, cannot be objected to on error, as a count embracing more than one offence. The whole will be deemed a single transaction. The public prosecutor, however, on such a count, may be confined to the proof of a single offence.(w) And it seems that duplicity is cured by pleading over.(x)

What need not be stated. Presumptions of law; (y) and facts of which the court will ex officio take notice,(z) need not be stated. Nor need conclusions of law. It suffices to state the facts; the court will draw the inference. (a) Nor need mere matters of evidence, unless it alters

(1) 5 East, 254.

(m) 1 Leach, 474. 1 T. R. 322. 2 Hawk. ch. 25, s. 55. 1 Chit. Cr. L. 231. (n) 2 Stra. 900, n. (1). 2 Ld. Raym. 1363. 1 Chit. Cr. L. 230.

(0) 2 Ld. Raym. 1196, 920. (p) Matt. Dig. 266.

(4) 2 Hawk. ch. 25, s. 58. (r) 1 Salk. 373.

(8) See post, Ch. V.

(t) Kelyng, 8.

(u) 1 Bos. & Pul. 181.
(v) Matt. Dig. 267.
(w) 17 Wend. 405.
(x) Matt. Dig. 267.

(y) 4 Maule & Selw. 105. 2 Wils. 147.

(z) Russ. & Ry. C. C. 448.

(a) 2 Leach, 941.

the offence ;(b) nor any matter of defence, which in reason must come from the defendant, and need not be stated by the prosecutor. (c) Nor is it necessary to negative matter which may be given in evidence by the defendant in his justification.(d)

Facts which lie more particularly within the defendant's than the prosecutor's knowledge, need not be stated with more certainty than to a common intent. (e) If notice be necessary to raise the duty which the defendant is alleged to have broken, it should be averred; but when knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary to allege or prove it. (f) If a request or demand be necessary to complete the offence, it must be stated.(g)

And where an evil intent is required to constitute an act a crime, it must be alleged and proved.(h) But if the intention be divisible, it will suffice to prove that part necessary to constitute the offence.(i)

In an indictment for selling spirituous liquors without license, it is not necessary to specify the names of the persons to whom the sales were made.(k)

Improper to state unnecessary matter.] Unnecessary matter should not be inserted. It frequently throws a greater burthern of proof on the prosecutor than the law requires, and is both censurable and dangerous. Still less should things be stated that are repugnant, inconsistent or absurd. (1) So it is reprehensible as well as unnecessary to magnify trifling offences, as for a small assault where little or no bodily harm was done, to allege that such a one, with swords, staves, and pistols, beat, bruised, and wounded him, so that his life is greatly despaired of; and the like. If an indictment be vexatiously long the court will refer it to the master, and sometimes make the clerk of the peace pay the costs of the unnecessary matter.(m)

Effect of the want of general requisites.] If any fact or circumstance which is a necessary ingredient in the offence be omitted, or stated without sufficient certainty, it vitiates the indictment, and the defendant may demur, move in arrest of judgment, or bring a writ of error.(n)

Every fact and circumstance which is not a necessary ingredient in the offence may be rejected as surplusage, and need not be proved at

the trial; nor will a defect in the manner of stating such matter vitiate the indictment.(o) But where an unnecessary allegation is descriptive of some ingredient in the offence, and not merely of circumstances of aggravation, it is material and relevant and cannot be rejected as surplusage.(p)

By the revised statutes it is provided that no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be affected, 1. By reason of having omitted the addition of the defendant's title, occupation, estate, or degree; or by reason of the mis-statement of any such matter, or of the town or county of his residence, where the defendant shall not be misled or prejudiced by such mis-statement; or 2. By the omission of the words "with force and arms," or any words of similar import; or 3. By reason of omitting to charge any offence to have been committed contrary to a statute, or contrary to several statutes, notwithstanding such offence may have been created, or the punishment thereof have been declared, by any statute; or 4. By reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.(g)

Under this latter clause of the statute it has been decided that an indictment is good if it contain the substance of the offence, with the circumstances necessary to render it intelligible, and inform the defendant of the allegations against him.(r)

26.

(0) 4 Co. 41, a. 5 Id. 121, b. 3 Stark.

(p) 3 Chit. Burn. 327.

q) 2 R. S. 728, § 52.

(r) 5 Wend. 271.

CHAPTER IV.

Of the form and several parts of an Endictment.

WHEN the record of the court where an indictment is tried is made up, or when it is returned to a certiorari, the indictment is preceded by a kind of preamble called the caption, which shows the time and place where and before whom, the trial was had, and the names of the grand jury who made the presentment. It constitutes no part of the indictment. (a) A mistake in it may, in general, be amended.(b)

Where an indictment found at the sessions is removed into the supreme court by certiorari, with a caption stating that the grand jury were sworn and charged, omitting the words "then and there," the omission will be fatal, on motion in arrest of judgment.(c)

The proper parts of an indictment are 1. The commencement. 2. The statement. 3. The conclusion.

1st. The commencement; and herein of the venue.] The only part of the commencement which requires attention is the venue, which, at common law should always be laid in the county wherein the offence was committed, though the charge be in its nature transitory. (d) And it must be proved by the prosecutor. (e) So much was the venue regarded as matter of substance, at common law, that where an offence was commenced in one county and completed in another it could not be laid in either, and the offender escaped. (f) This inconvenient strictness however has been remedied by several statutes and particularly by the revised statutes; which contain various provisions on the subject of venue in criminal cases.

Receivers of stolen property may be indicted in any county where they received, or had such property, notwithstanding the theft was committed in another county.(g)

Where an offence is committed on the boundary of two counties, or within five hundred yards of the boundary, an indictment may be found in either of such counties.(h)

When an offence shall have been committed within this state, on board of any vessel, an indictment may be found, in any county through which or any part of which such vessel shall be navigated in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate.(i) Where the mortal wound, &c. is given in one county, and death takes place in another, the indictment may be found in the county where the death happened.(k)

As to venue for indictments for robberies, burglaries, against accessaries, &c. sce ante, pp. 134, 90, 267.

Venue how stated.] The venue is stated in the margin, next after the caption, thus: "Saratoga county, ss."; for a city and county, "City and county of New-York, ss."

In the body of the indictment the facts must generally be stated to have arisen within the jurisdiction of the court in which the indictment is preferred; therefore if a parish, vill, or place where an offence was com mitted, be stated without naming the county in the margin, or without referring to it but by the words "the county aforesaid," it will be defective.(1) And where two counties are named, as Surrey in the margin and Middlesex afterwards in the body, the words "county aforesaid" will then refer to the last antecedent, "Middlesex ;" and if Surrey was intended, the words should be "county first aforesaid," or " said county of Surrey.(m) But on an indictment for being riotously assembled at the parish of A., and feloniously beginning to demolish the house of the prosecutor," situate at the parish aforesaid," it was held this was a sufficient reference to the parish, and that the words " parish aforesaid" must be taken to relate to the last before-mentioned parish.(n)

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Where a statute authorizes a mode or place of trial which did not exist at common law, all facts within the state should be laid where they actually happened;(0) but where a statute creating a new felony directs that it may be tried in the county where the offender is apprehended, without containing any negative words, the provision is only cumulative, and he may still be tried in the county where the offence was committed.(p)