Lapas attēli
PDF
ePub

define, beyond any doubt, the exact charge of the state against the accused. If the crime is an offence at common law only, the common law forms of indictment should be followed. If it is created or modified by statute, it is sufficient to allege it in the words of the statute, where such words contain a full and complete description of all the acts necessary to constitute the offence; otherwise, in addition to the words of the statute, such words must be employed as do define and specify the precise nature of the crime. The statement of the acts must be positive and assertive, not laid with a whereas, or by way of recital, or argumentatively. Technical words, where necessary, must be used. In all crimes involving violence, or a breach of the peace, the act must be alleged to have been committed with force and arms. In felonies, it must be alleged to have been done feloniously; in treason, traitorously; in burglary, burglariously; in robbery, against the will; in piracy, piratically; in murder, with malice aforethought. Also in murder, it must be charged that the accused did kill and murder, and, in murder by wounding or beating, that he struck, and that the wound was mortal. In rape, it must be alleged that the accused ravished and carnally knew. In indictments for mayhem, it must be stated that the accused did maim, and in those for barratry, that he is a common barrator. For these words, and such others as, at common law or by statute, are made technically descriptive of the whole crime or of any element therein, there are no substitutes, and an indictment, from which they are absent, cannot be sustained.

Read 2 H. P. C., pp. 170-173, 183-193.

1 Chitty C. L., pp. 227-247, 275–292.

1 Arch. Cr. Pr., pp. 282-307.
i Whart. C. L., §§ 285-413.
1 Bish. C. P., §§ 415–420, 499–668.

§ 497. Of the Joinder of Counts. Duplicity. Repugnancy. Uncertainty.

Each

(An indictment may contain one or more counts. count must be of itself a full and complete charge of crime, and be sufficient to sustain a verdict, for no number of defective counts can make a good indictment.) Matter stated in one count may by reference thereto, without restating it at length, be made a part of another count. Different counts for different offences may be joined in one indictment in cases of misdemeanor, though not in felony; but two distinct offences cannot be charged in the same count. If two or more distinct offences are joined in one count, the count is bad for duplicity. If material allegations in a count contradict each other, the count is bad for repugnancy. If the allegations are in the disjunctive, or in any other way fail to specify precisely what crime. was committed, the count is bad for uncertainty. Immaterial allegations are surplusage, and inconsistencies therein do not vitiate the count. If one count in an indictment be good, a verdict on such count will be sustained, though other counts are defective.

Read 2 H. P. C., pp. 173, 174.

1 Chitty C. L., pp. 169-174, 248–255.

1 Arch. Cr. Pr., pp. 308–314.

1 Whart. C. L., §§ 382, 394, 396, 414-428.

3 Whart. C. L., §§ 3176-3181.

1 Bish. C. P., §§ 421-462, 477-498.

§ 498. Of the Joinder of Offenders and Offences.

Different offenders may be joined in one indictment, where they are alleged to have been joint actors in the commission of the crime. Different persons may also be prosecuted for different offences, of the same nature, in the same

indictment, but there can be no joinder of offenders where the crime is, in its nature, several.

Read 2 H. P. C., pp. 173, 174.

1 Chitty C. L., pp. 255, 267-271.

1 Arch. Cr. Pr., pp. 315–319.

1 Whart. C. L., §§ 429-435.

1 Bish. C. P., §§ 463-476.

$499. Of Process.

Process is a warrant issued for the apprehension of the offender after prosecution, in cases where he has not already been arrested and brought before the court. This warrant, and the arrest thereon, are subject to the same rules as those which govern a warrant and arrest before prosecution.

Read 4 Bl. Comm., p. 318.

2 H. P. C., pp. 194-215.
1 Chitty C. L., pp. 337-346.
1 Arch. Cr. Pr., pp. 343–350.

§ 500. Of Arraignment. Standing Mute.

Arraignment is the formal demand upon the accused, for his answer to the prosecution. A person accused of any crime, for which a corporal punishment may be inflicted, must be present in court during all such proceedings as are material to his case, and, if the charge against him be of felony, he must both appear and plead in person. Whenever he is to be arraigned and plead in person, he is called to the bar of the court, during its open session, the indictment is read to him, and he is required to state whether he is guilty or not guilty of the offence charged therein. If he makes no answer to this arraignment, he

is said to stand mute. This may occur either through his obstinacy, or because he is dumb, or is insane, or is ignorant of the language in which the proceedings are conducted. When an accused stands mute through obstinacy, or is dumb, the court will order a plea of not guilty to be entered. When he is ignorant of the language, an interpreter will be provided, to acquaint him of the charge, and inform the court of his answer. When he appears to be insane, a jury will be appointed to try the question of his sanity, and, if they find him to be of an unsound mind, he will be remanded for safe-keeping.

Read 4 Bl. Comm., pp. 322-329.

2 H. P. C., pp. 216-225, 314-322.

1 Chitty C. L., pp. 411, 414-428.
1 Arch. Cr. Pr., pp. 350-355.

1 Whart. C. L., §§ 530-532.

3 Whart. C. L., §§ 2991-3000, 3153-3155.
1 Bish. C. P., §§ 265-277, 728-733 b.
1 B. & H. L. C. C., pp. 433–439.

§ 501. Of Counsel.

Quash.

Guardian ad Litem. Motion to

In some States, it is the practice, before suffering the accused to answer, to provide him with counsel, if he is himself unable to procure any; and where he is an infant, and without a guardian, to appoint for him a guardian ad litem. A motion to quash the indictment, if to be made at all, should also be made before or at the time of the arraignment, though the court has power to allow such motion at any time before verdict. This motion is a request, addressed orally or in writing to the court, praying that no further proceedings be had upon the indictment. It may be based either upon matters apparent on the face of the

record, or upon extrinsic matters, if properly brought before the court.

Read 1 Chitty C. L., pp. 299–304, 407–411.

1 Arch. Cr. Pr., pp. 336-341.

1 Whart. C. L., §§ 518-524.

3 Whart. C. L., §§ 3004-3006.

1 Bish. C. P., §§ 114, 295-313, 758-774.

§ 502. Of the Plea of Guilty.

A plea is the answer, made by the accused, to the charge contained in the indictment. Pleas are of five kinds : (1) Plea of Guilty; (2) Plea to the Jurisdiction; (3) Pleas in Abatement; (4) Demurrer; (5) Pleas in Bar. A plea of guilty is the formal acknowledgment of the accused, in open court, that the allegations of the indictment are true. It is not necessarily a confession of guilt; it is merely an admission that he has done what is legally and properly charged against him. If the indictment is bad, the admission has no effect; if it is good, the admission is a waiver of the trial, and the court may forthwith proceed to judg

ment.

Read 4 Bl. Comm., p. 329.

HLALERT BREED.

2 H. P. C., pp. 225, 226.

1 Chitty C. L., pp. 428-431, 434–437.
1 Arch. Cr. Pr., pp. 355, 356.

1 Whart. C. L., §§ 530-533.

1 Bish. C. P., §§ 734-757, 795, 802-804.

§ 503. Of Pleas to the Jurisdiction.

A plea to the jurisdiction is an allegation that the court, before which the case is pending, has no authority to hear and determine the same. When this want of jurisdiction appears on the face of the record, the indictment may be

« iepriekšējāTurpināt »