words should be used to characterize the class, quality, or technical peculiarity of the offence. There are some terms which are so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem to be, are capable of doing it. Thus the word "feloniously" must be introduced in every indictment for felony, whether it be a felony at common law or by statute, the term "feloniously" being a term of art, for which no equivalent expression can be substituted: (Reg. v. Gray, Leigh & C. C.C. 365; 33 L. J. M. C. 78.) In an indictment for murder it must be stated that the defendant did "feloniously, wilfully, and of his malice aforethought kill and murder" the deceased: (24 & 25 Vict. c. 100, s. 6.) In an indictment for burglary, the word "burglariously" must be inserted. In an indictment for a rape, there must be the words, "did ravish and carnally know" (R. v. Warren, 1 Russ. 686; 1 East P. C. 447.) In an indictment for robbery from the person, there must be the allegation of "against the will of" the party robbed.

:

With reference to offences created by statute, it will be necessary to state in the indictment all the ingredients, intents, and motives set forth in the enactment as going to make up the crime, and where particular words are used, no substituted or equivalent words will be deemed sufficient for those actually used by the Legislature. Thus, upon an indictment under the Black Act (now repealed), which made it felony "wilfully and maliciously" to shoot at any person, &c., the allegation was "unlawfully and maliciously," the word "wilfully" being omitted, the indictment was held bad: (R. v. Davis, 1 Leach, 556.) So upon

an indictment under the 5 & 6 Will. 4, c. 76, which makes it a misdemeanour for wilfully making a false answer at a municipal election, the allegation was that the defendant "falsely and fraudulently" answered, &c., the word "wilfully" being omitted, the indictment was held to be bad: (Reg. v. Bent, 1 Den. C. C. 157.) So an indictment upon the 7 & 8 Geo. 4, c. 30, s. 2 (now repealed) for feloniously, voluntarily, and maliciously setting fire to a barn, was held bad for omitting the word unlawfully," which was used in the statute : (R. v. Turner, 1 Moo. C. C. 239; R. v. Ryan, 2 Moo. C. C. 15.)

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If it be necessary to explain any circumstances so as to shew the act of the party charged to amount to an indictable offence, that explanation must appear upon the face of the indictment. Thus, if the charge be that the defendant has forged the word "settled" to a bill, it must be shewn by proper averments that the document is a receipt (R. v. Thompson, 2 Leach, 910; R. v. Hunter, 2 East P. C. 928).

If there be any exception contained in the same clause of the Act which creates the offence, the indictment must shew negatively that the defendant does not come within the exception: (R. v. Earnshaw, 15 East, 456; R. v. Baxter, 5 T. R. 83; R. v. Pearce, R. & R. 174.) If, however, the exception or proviso be in a subsequent clause or statute, or, although in the same section, yet, if it be not incorporated with the enacting clause by any words of reference, it is matter of defence, and need not be negatived in the indictment (R. v. Hall, 1 T. R. 320; Steel v. Smith, 1 B. & Ald. 94.)

All indictments must be in words at length, nor can any figures be allowed; numbers and

dates therefore must be written in full: (4 Geo. 2, c. 26; 6 Geo. 2, c. 14.) When, however, a facsimile of a document is required to be set out, then the original must be exactly copied.

CONCLUSION.

Formerly great care was required in adding a proper and formal conclusion: but now, by the 14 & 15 Vict. c. 100, s. 24, it is enacted that 66 no indictment for any offence shall be held insufficient for the omission of the words. . . ." "against the peace," nor for the insertion of the words "against the form of the statute " instead of "against the form of the statutes," or vice versá; nor for want of a proper and formal conclusion," &c.: (Reg. v. Holmes, Dears. C. C. 207). It is usual, however, to conclude indictments for offences created by statute with the words against the form of the statute in such case made and provided ;" and in all cases to add the words" against the peace of our Lady the Queen, her crown and dignity," and as these words are convenient for designating the conclusion of a count, it is a very desirable that each count should terminate with one or both of these conclusions, as the case may be.

AS TO THE JOINDER OF SEVERAL OFFENCES.

The rule applicable to the joinder of different offences in the same indictment is different in its application to felonies and misdemeanours.

As regards felonies.-Although in point of law there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender, yet the doing so is considered to be so objectionable, that the Court

will, in its discretion, if the objection be taken before plea, quash the indictment; or, if taken after plea, put the prosecutor to elect upon which charge he will proceed, and this upon the grounds that a double charge may confound the prisoner in his defence, and may prejudice him in his challenge to the jury, since he might object to a juryman trying him upon one of the charges, though he might have no reason to do so upon the others: (Young v. The King, 3 T. R. 106.) Such joinder, however (as not being contrary to law), is no ground either of demurrer or arrest of judgment (2 East P. C. 515); nor is it an objection that can be taken upon a writ of error: (Reg. v. Heywood, Leigh & C. 451; 33 L. J. M. C. 133.) In the abovementioned case, whilst the Court affirmed the legal proposition that an indictment was not bad for containing several charges of felony against the same person, BLACKBURN, J., observed: "I hope, however, that it will not be understood that we sanction any departure from the practice of either putting the prosecutor to elect, or quashing the indictment where there is reason to apprehend that the joinder of several counts may embarrass the prisoner in his defence."

But, although it is deemed an improper practice to charge a defendant with distinct felonies in the same indictment, there is no objection whatever to the same felony being charged in different ways; so that, in fact, there may be any number of different counts in one indictment for the same criminal act, framed in such ways as to meet the possible varying facts of the case. This practice is the more necessary because, though the petit jury may find a prisoner guilty of a part of a count, and acquit him of the residue, the grand jury cannot separate the parts of a count,

but must either find the whole of a count or ignore it. If, therefore, the same felonious act will bear different constructions being placed upon it, several counts may be framed to meet it in accordance with those constructions. Thus, if one man shoot at and wound another under circumstances warranting the belief that it was done feloniously, there may be distinct counts, one charging the shooting at, with an intent to murder, another with intent to maim, another with intent to disfigure, another with intent to disable, and another with intent to do some grievous bodily

harm.

So also in an indictment for burglary, the intent may be varied in different counts, as may also the ownership of the dwelling-house; and counts also may be added for stealing in a dwelling-house, and for a simple larceny.

No counts, however, both for felonies and misdemeanours can be joined in the same indictment, even though they relate to the same transaction; and this chiefly upon the ground that the right of challenge and other incidents of a trial for felony and misdemeanour are essentially different; and if such count be joined, the indictment will be held bad on demurrer; and, if a general verdict be returned, it will be liable to be quashed on motion in arrest of judgment; and on a writ of error (Starkie's C. P. 43); where, however, the indictment contains a count for felony, and one also for misdemeanour, and no advantage is taken of the defect on demurrer, and the prisoner is convicted of the felony alone, no valid objection can then be urged to the misjoinder: (Reg. v. Ferguson, 1 Dears. C. C. 427; R. v. Jones, 2 Moo. C. C. 94.)

The objection to the including in one indict