by itself, implies that the substance only is set out ;(n) and the same, of course, of the words "in substance as follows." (o) It seems also to have been hoiden that the words "in manner and form following" require the substance only to be set out. (p) Purport" means the substance of an instrument as it appears on the face of it to every eye that reads it. Tenor" means an exact copy of it.(q) 66 Foreign language.] An instrument in a foreign language must be set out first in the original: otherwise the defendant may demur, move in arrest of judgment, or bring a writ of error;(r) and secondly in a translation, which must be proved at the trial to be correct. (s) Records.] In stating records as part of the offence, and not merely as inducement, the record must be referred to, or the omission is bad, on demurrer.(t) Variance.] When a written instrument, or parts of it, are professed to be set out verbatim, the slightest variance between the indictment and the evidence in this respect would be fatal. A mere literal variance, however, (where the omission or addition of a letter does not alter or change a word so as to make it another word, (u)) will not be material; as "receved" for "received;"(v) "undertood" for "understood;"(w) Messes" for "Messrs," or the like.(x) 66 Description of goods.] Where general chattels are the subject of an offence, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods must be stated.(y) See also LARCENY, ante, p. 146. Technical words.] In some cases particular technical words are essential to the definition of the offence, and must be inserted in the indictment, as in rape, burglary, murder, &c., which have been already noticed. If these essential words are omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error.(z) Unlawfully.] Though the word "unlawfully," is frequently used in the description of an offence, it is not necessary when the crime existed at common law, and was manifestly illegal. (a) But if a statute, in describing an offence which it creates, uses that word, an indictment on (n) 2 Salk. 417. (0) 3 Barn. & Ald. 503. (p) Leach, 227. 1 Doug. 193. (9) ld. 661. Matt. Dig. 276. (r) 6 T. R. 162. (s) 7 Moore, 1. Russ. & Ry. C. C. 473. (t) Ry. & Moo. C. C. 47. (u) 2 Salk. 661. 2 Camp. 229. (v) Leach, 145. 2 East's P. C. 977. (w) Cowp. 229. (x) Matt. Dig. 2.6. (y) 2 Hale, 182, 3. (z) 3 Chit. Burn, 349. (a) 2 Hawk. ch. 25, s. 96. Bac. Abr. Indictment, (G. 1). the statute will be bad without that word. (b) And it is, in general, best to insert it, as it precludes every legal cause of excuse for the crime. (c) The words "with force and arms," though usual in indictments for of fences against the person, are not, it seems, essential. The omission is now cured by the revised statutes. (d) Wickedly, &c.] The words "wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition," &c. are, in general, mere matter of aggravation, and not material.(e) Knowingly.] The word "knowingly," or "well knowing," will supply the place of a positive averment that the defendant knew the facts subsequently stated.(ƒ) Where a scienter is absolutely necessary to constitute guilt, it must be positively alleged.(g) But if notice or knowledge be unnecessarily stated, the allegation may be rejected as surplusage.(h) Therefore, where there is the least doubt, it is best to insert them. Intent.] Where an act must be done with a particular intent, in order to render it criminal, an evil intention must be averred upon the record, and must be proved as laid, or the variance will be fatal. (h) But if the intention be divisible, it will suffice to prove that part of it necessary to constitute the crime.(i) 3d. THE CONCLUSION.] An indictment, at common law, concludes "against the peace of the people of the state of New-York." Indictments for nuisances, usually conclude "to the great damage and common nuisance of all the people of said state, as well as against the peace," &c. But this conclusion "to the common nuisance," does not seem to be essential.(k) The words "against the peace of the people," however, seem to be essential in all cases; (1) excepting in indictments for nonfeasance ;(m) and even in these, they are uniformly used. "Against the peace," without saying " of the people." would be insufficient.(n) On statutes.] An indictment for an offence created by statute, concludes, "Against the form of the statute in such case made and provided, and against the peace of the people," &c. Where a statute either creates the offence altogether, or makes an offence at common law an offence of a higher nature, (as where it makes (b) Hawk. C. C. 43. Matt. Dig. 277. (c) 4 Maule & Selw. 274. (d) 2 R. S. 728, § 52. (e) 6 East, 472. (f) 2 Stra. 904. Com. Dig. Indictment, (G. 6). Russ. & Ry. 317. 1 Stark. N. P. 390. (g) Id. ib. (h) 2 East's Rep. 452. (h) 2 Stark. N P. Rep. 245. See Russ. & Ry. C. C. 365, 445. (i) 3 Stark. 62, 35. (k) Matt. Dig. Cr. L. 278. (1) 2 Hale, 188. Cro. Jac. 527. 6 Mod. 128. Russ. & Ry. C. C. 176. (m) 1 Vent. 108, 111. 1 Salk. 381. (n) 2 Hale, 188. a misdemeanor a felony,) an indictment for, the offence must conclude against the form of the statute."(0) 66 If the statute do not make it an offence of a higher nature, but merely increase or otherwise alter the punishment, &c. the indictment, in order to bring the offence within the statute, must conclude "against the form of the statute;" but if it do not so conclude, it may still be good at common law.(p) Or if the statute be merely declaratory of an offence at common law, without adding to or altering the punishment, &c. an indictment for the offence may conclude either “against the form of the statute," or as at common law.(q) But where a statute merely takes away a certain privilege or benefit from a person committing a common law offence under particular circumstances, to which benefit or privilege the defendant, but for the statute, would have been entitled at common law, an indictment for the offence, though it must charge it to have been committed under the circumstances mentioned in the statute, should not conclude " against the form of the statute."(r) 66 An indictment against A., for shooting at B., and against others as aiding, &c. was held sufficient in a late case, without concluding " against the form of the statute," as to each offence, but only at the conclusion of the count.(s) Where one statute is relative to another, as where one creates the offence and the other the penalty, an indictment for the offence must conclude "against the form of the statute."(1) But where the offence is prohibited by several independent statutes, the indictment may either conclude "against the form of the statutes," or "statute," in the singular.(u) If the statute creating the offence be temporary, and be continued or made perpetual by another statute, an indictment for the offence may conclude against the form of the "statute."(v) If one statute imposes a pecuniary penalty for an offence, and a subsequent statute makes the offence a felony, an indictment for the felony should conclude "against the form of the statute.(w) But an indictment for a common law felony, committed abroad and made triable here by statute, need not conclude "against the form of the statute.”(x) If an indictment conclude "against the form of the statute," when it should conclude as at common law, the mistake is not material, and the words contra form. stat. may be rejected as surplusage.(y) In an indictment on a statute, besides the conclusion "against the form of the statute," the words "against the peace of the people," are absolutely essential ;(z) for the former conclusion will not supply the omission of the latter.(a) Formerly, omitting to conclude "against the form of the statute," when it was essential, was error, and might be taken advantage of by demurrer, motion in arrest of judgment, or writ of error. (b) Defects of this kind, however, are now cured by the statute, not withstanding the offence may have been created, or the punishment declared, by a statute.(c) (y) 5 T. R. 162. Sayer, 225. 1 Vent. 103. (z) 2 Hale, 188. (a) Russ. & Ry. C. C. 176. CHAPTER V. Of the joinder of defendants and offences in the same Endictment. 1st. JOINDER of defendants.] Where the act is such that several may join in it, all or any number of the offenders may be indicted, either jointly or separately. (a) So, principals in the first and second degree, and accessaries before and after the fact, may all be joined in the same indictment ;(b) or the principal may be indicted first and the accessary after the conviction of the principal; or before, for a substantive felony.(c) But where the offence is such as not to admit of a participation or agency, several offenders cannot be joined; as, for perjury,(d) or for seditious or blasphemous words, or the like; because such offences are in their nature several. Even where several commit a joint act, not of itself illegal, but which becomes so by reason of some circumstances applicable to each individual severally and not jointly, they must be indicted separately.(e) Thus, several partners cannot be indicted jointly for exercising their trade without having served an apprenticeship. (f) Persons have been jointly indicted for obtaining money by false pretences; (g) for joining in singing a libellous song,(h) or jointly publishing a libel. But if the publication be separate, they must be severally indicted. Also, several offenders for different offences of the same kind may in some cases be included in the same indictment, if the word several be inserted, which makes it several as to each of them. But if any material inconvenience arise from this mode, the court will, in its discretion, quash the indictment.(i) If an indictment charge two persons jointly with an offence which may be committed jointly or separately, as stealing in a dwelling house, (a) 2 Hale's P. C. 173. 2 Burr. 984. 2 Hawk. P. C. ch. 25, s. 89. 1 Salk. 382. (b) 2 Hale, 173. (c) See ante, p. 261, 262. (d) 2 Str. 921. (e) 2 Hawk. ch. 25, s. 89. (h) 2 Burr. 985. (i) 3 T. R. 106. 8 East, 46. |