11 & 12 Vict. c. 43.

Joint offenders.

The prosecutor may prosecute all or any of the parties, and the omission of a particeps criminis cannot, as in cases of joint contracts in civil actions, be taken advantage of by those who are prosecuted (see Reg. v. Brown, 26 L. J. (N. S.) M. C. 183; which was the case of an information against one of several joint owners of a mine for an infringement of the Coal Mines Joint offence. Act, 18 & 19 Vict. c. 108, s. 4, since repealed). After conviction, however, of some of several offenders for a joint offence, if there be such an offence, the parties omitted cannot be proceeded against. But it is otherwise as to offences which are in their nature several. As to whether there is in fact what is called a joint offence, the case of Reg. v. Justices of Staffordshire (32 Law T. 105; Reg. v. Justices of Staffordshire, 23 J. P. 486; Reg. v. Littlechild, 35 J. P. 86) appears in point; by the convictions in that case two persons who had used nets together at the same time and place, contrary to 1 & 2 Will. 4, c. 32, s. 23, were severally convicted in full penalties; separate informations and separate summonses had been laid and issued and were returnable at the same time, and the two cases were heard as one; the Court of Queen's Bench decided there was no excess of jurisdiction, and treated this joint hearing as a mere irregularity. 32 The old test whether an offence was a several or a joint one being whether each offender is liable to a separate penalty of the full amount, or only to a proportionate part of the full penalty, must now be considered as no longer applicable; and as each is liable to the full penalty, there is really in law no joint offence. 33

Several offenders.

It has been doubted, since the passing of the 11 & 12 Vict. c. 43, whether several offenders can be joined in the same information who have taken part in committing the same

32 The proper course is to have one information and one conviction. 33 Judicial Observations on "Joint Offences."]-Lord Campbell, C. J., observed in reference to the objection that the jurisdiction of the justices ceased when they convicted one offender in the full penalty,-"It would seem to go no further than this, if one only had been convicted, that conviction might have furnished a ground of defence to the other, if the information against him were heard before other magistrates;" and Coleridge, J., in the same case (Ex parte Smith and Till, 22 J. P. 383), said,Suppose where several are engaged, one is caught to-day and brought before justices, and another some days afterwards, how is the offence then?" Lord Campbell also observed (Id.), in reference to the objection that only one penalty was incurred, the offence being alleged to be joint, citing R. v. Clark, Cowp. 610; Paley, 224,-" Poachers now use nets a mile long, which require a hundred men to set them. Would such a case as that amount only to one offence?" Vide further observations herein in sect. 5, “The Hearing and Adjudication, &c."

c. 43.

offence at the same time and place, whether the offence is in 11 & 12 Vict. its nature joint or several; because the 10th section (post, p. 146) requires that the information shall be for one offence only, and the forms in the schedule appear to contemplate only a single offender. The 10th section referred to was evidently designed to prevent the joinder of several offences in different counts, but the statute does not allude to the joinder of offenders; 34 and, as the forms given may be adopted or made "to the like effect" (s. 32), there seems no reason in such cases to depart from the rule which prevails in this respect in the case of indictments, of joining several persons in the same, who are jointly concerned in the offence, whether as principals or accessories; for the defendant can take no objection to the information for any defect in substance or in form (ss. 1, 9, ante, pp. 139, 140). 35

Before the 11 & 12 Vict. c. 43, there were no accessories in Aiders and abettors in all offences punishable by summary conviction, unless the par- cases. ticular act extended to the offence of an accessory,—nor Sect. 5. indeed in any criminal case below the degree of felony-all were principals or nothing; but now, by s. 5 of that act,"Every person who shall aid, abet, counsel or procure the "commission of any offence, which is hereafter or shall be "punishable on summary conviction, shall be liable to be "proceeded against and convicted for the same, either "together with the principal offender, or before or after his "conviction,—and shall be liable on conviction to the same "forfeiture and punishment as such principal offender is or

34 Lord Campbell, C. J., in Reg. v. Cridland, 27 L. J. (N. S.) M. C. 30, observed during the argument," Stat. 11 & 12 Vict. c. 43, s. 10, points rather against charging more than one offence against the same person. In case of a conspiracy the parties may be all charged jointly, or each may be charged separately;" but Crompton, J., said (Id. p. 32),"We are not to be supposed to agree that, under s. 10 of Jervis's Act, 11 & 12 Vict. c. 43, two offenders can be joined in one conviction." The swearing of several oaths on one and the same occasion is one offence only, and the 11 & 12 Vict. c. 43, s. 10, does not apply (Reg. v. Scott, 33 L. J. (N. S.) M. C. 15; 8 Law T., N. S. 662). Vide Note 35, infra.

35 In Ex parte Brown (16 J. P. 60), three persons were included in one conviction as reputed thieves, and no objection seems to have been taken to it on this ground. So likewise in Reg. v. Cridland (27 L. J. (N. S.) M. C. 28; 29 Law T. 210), and Reg. v. Bacon (21 J. P. 404), which was a conviction of several persons for a trespass in pursuit of game; but in Re Clee and Osborne (21 L. J. (N. S.) M. C. 112), where separate convictions were drawn up on a joint information, the court refused to order the justices to alter the conviction by making it a joint one. Reg. v. Heslop and Reg. v. Littlechild are to the same effect as Re Clee and Osborne (40 L. J. (N. S.) M. C. 137; 24 Law T., N. S. 233).

O.S. VOL. I.

L

66

"shall be by law liable, and may be proceeded against and
"convicted either in the county, riding, division, liberty, city,
borough or place where such principal offender may be
"convicted, or in that in which such offence of aiding,
"abetting, counselling or procuring may have been com-
"mitted."36

If distinct and complete acts are committed on different
days, the offences are distinct and subject to separate penalties
(R. v. Matthews, 10 Mod. 27); but ambiguity arises upon a
repetition of similar acts in pursuance of one object on the
same day. With regard to cases of this description no general
rule can be laid down, but the law in each case must be deter-
mined by the nature of the offence, and the manner in which
the particular statute applicable to it is worded. Killing
several hares on the same day incurs only one forfeiture and
is a single offence only, and so likewise is exercising trade on
a Sunday, although several sales have taken place. 37

By 11 & 12 Vict. c. 43, s. 10 (inter alia), "Every such "information shall be for one offence only, and not for two "or more offences" (see Note 34 supra). This prevents the joinder of two or more counts in the information, and if it be desired to state the offence in different counts there must be separate informations, as also when the same offender commits offences against different statutes; but where one is charged as principal and another as aiding, abetting, counselling or procuring him to commit the offence, 'they may be jointly charged in the same information, for procurers, &c. in all offences less than felony are deemed in law principals, and the offence of the person who actually committed the act and that of the accessories is but one offence.

The time of committing the offence should be stated (R. v.

36 The principal offence must actually have been committed, otherwise this section will not operate; but although not punishable under this section, the offence of inciting another to commit it is a misdemeanor at common law and punishable accordingly by indictment (R. v. Vaughan, 4 Burr. 2494; and R. v. Higgins, 2 East, 5. See Wilson v. Stewart, ante, p. 143). The offender may be charged with "aiding, abetting, counselling and procuring" the commission of the offence, as these words constitute but one offence (Ex parte Smith, 27 L. J. (N. S.) M. C. 186; 31 Law T. 87; see also Stacey v. Whitehurst, 34 L. J. (N. S.) M. C. 94; 11 Law T., N. S. 710). Vide Forms, Oke's "Formulist," 6th edit. p. 5, Nos. 6, 7.

37 Marriott v. Shaw, Cowp. 278; R. v. Lovett, 7 T. R. 152; Cripps v. Durden, Cowp. 640; 1 Smith's L. C. 378. Vide Oke's "Handy Book of the Game and Fishery Laws," 2nd edit. p. 116, note.

Pullen, 1 Salk. 369; 14 East, 272); but the precise day need not be named if the offence be alleged to have been committed between such a day and such a day, provided the first of the days be within the limited time for laying the information, or the conviction taking place. 38 As to the place of the offence, the parish, &c. and the county should be correctly stated, to show that it was committed within the jurisdiction 39 of the magistrate receiving the information, for the statement of the venue in the margin will not supply the want of statement in the body. 40 Vide also s. 9, ante, p. 139, as to variance in the time and place laid and the evidence in support of the information not being material; but in informations for offences under the Night Poaching Act (9 Geo. 4, c. 69), and the acts regulating the time for closing alehouses and beerhouses, &c., where particular times of a day are in question, time is the essence of the offence, and in those cases is material, and must be proved as laid (1 Phil. Ev. 861, 9th edit. 514), for the hour stated in the calendar will not be judicially noticed, but must be proved as a fact. 41 Where, however, any question arises as to the time, the statutory hour refers to the mean time of the place where the offence is committed, and not Greenwich time (see Curtis v. March, 3 Hur. & Nor. 868; 28 L. J., Ex. 36).

The information or conviction must contain an exact descrip- The act contion of the offence, which, in order to give the justice juris- stituting the diction, must appear to be within both the letter and the spirit of the statute that creates it, and which must be accurately described that the defendant may know what charge he has to answer (Bosc. 25), and the conviction should contain the same certainty as an indictment; 43 for being a summary proceeding Certain. and conclusive on the defendant, it ought to have the greatest certainty on the face of it (R. v. Jukes, 8 T. R. 544). The

38 2 Hawk. c. 25, s. 82; R. v. Crisp, 7 East, 389; R. v. Huggins, 3 C. & P. 602; R. v. Simpson, 10 Mod. 248; Onley v. Gee, 30 L. J. (N. S.) M. C. 222; 4 Law T., N. S. 338.

39 R. v. Hazel, 13 East, 139; Kite and Lane's Case, 1 B. & C. 101. Jide Introduction, ante, pp. 9-29, as to jurisdiction.

40 R. v. Austin, 8 Mod. 309; see also Deybell's Case, 4 B. & Ald. 243, 247 R. v. Fletcher, 13 L. J. (N. S.) M. C. 16.

41 Collier v. Nokes, 2 C. & K. 1012; 15 Law T. 189.

42 The mode of describing technically all offences will be found in the author's other work, "The Magisterial Formulist," 6th edit., and in Chap. II. of this Volume of the present work the page containing the form to be used in each case is stated.

43 Ex parte Pain, 5 B. & C. 251; Re Elmy and Sawyer, 1 Ad. & Ell. 843; R. v. Marsh, 4 D. & R. 267, per Bayley, J.

Positive.

Not in the alternative.

Description of defendant.

Particular facts.

description of the charge in the information must include in express terms every ingredient required by the statute to, or a statement of the facts which, constitute the offence; for nothing must be left to intendment, or inference, or argument for helping out the description. 44 For it is a rule with respect to summary proceedings before justices on penal statutes, that after a conviction nothing can be intended, so as to get rid of any defect in point of form; for everything necessary to support the conviction must appear on the face of the proceedings, and must be established by regular proof, or by the admission of the party of that which is not proved (R. v. Daman, 2 B. & Ald. 378). A direct and positive charge must be stated against the defendant; a mere statement of facts amounting to a presumption of guilt is not sufficient (Rex v. Bradley, 10 Mod. 155); and all the facts must be expressly alleged, and not left to be gathered by inference or intendment (R. v. Fuller, 1 Ld. Raym. 509). The offence must not be stated by way of recital, nor in the alternative or disjunctive, nor in an argumentative way.45 Where the gist of the offence is a guilty knowledge, there must be a direct averment of its existence. 46 So, the defendant must be brought within the description of the statute. 47 So, the information should not state the legal result of facts, but the facts themselves, in order that the court may judge whether or not they amount to a legal offence, as where a conviction under the swearing act omitted to set forth the oaths and curses. 48

Though in general it may be sufficient to state the fact in the words of the act of parliament, yet it is not always safe

44 R. v. Denman, 1 Chit. Rep. 152; Rex v. Jukes, 8 T. R. 536; Rex v. Fuller, 1 Ld. Raym. 509; R. v. Trelawney, 1 T. R. 222; Rex v. Bradley, 10 Mod. 155; Rex v. Pereira, 2 Ad. & Ell. 375; Ex parte Smith, 3 D. & R. 464; R. v. Marriott, 1 Str. 66; Charter v. Greame and another, 18 L. J. (N. S.) M. C. 73; R. v. Turner, R. & M. 239; Ex parte Askew, 15 J. P. 485; Ex parte Perham, and Reg. v. Pearham, 29 L. J., M. C. 33.

45 R. v. Catherall, 2 Str. 900; R. v. Crowhurst, 2 Ld. Raym, 1363; R. v. Middlehurst, 1 Burn, 399; R. v. Marshall, 1 Moo. C. C. 158; 2 Hawk. c. 25, s. 58; R. v. Morley, 1 You. & Jer. 22; R. v. North, 6 D. & R. 143; R. v. Pain, 7 D. & R. 178; R. v. Sadler, 2 Chit. Rep. 519; 1 Salk. 373; Rex v. Stocker, 1 Salk. 342, 371.

46 R. v. Jukes, 8 T. R. 536; Rex v. Marsh, 2 B. & C. 717; Chaney v. Payne, 2 Q. B. 712; R. v. Llewellyn, 1 Show. 48; Ex parte Hawkins, 2 B. & C. 31.

47 R. v. Turner, 4 B. & Ald. 510; R. v. Little, 1 Burr. 913.

48 R. v. Popplewell, 1 Str. 686; R. v. Chaveney, 2 Ld. Raym. 1368; R. v. Sparling, 1 Str. 497; R. v. Daman, 1 Chit. 147; 2 B. & Ald. 379; Mould v. Jennings, Cowp. 642; R. v. Roberts, 1 Str. 603; and see Reg. v. Rowed, 3 Q. B. 180.