Imatges de pàgina
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weapon being forfeited to the king,) but it is not essential to prove the exact value stated.-Ibid. and Arch. 309.

In larceny, the thing stolen should be alleged to be of some value, but the value needs not be stated truly.-Arch. 163.

5. The Indictment must conclude," against the peace of our Lord the King."

These words seem to be in general essential.-1 Chitty's Cr. Law, 246.

If the offence were committed in the reign of the late king, the conclusion should be against the peace of the late king, and not of the present sovereign, or of the king generally.-Ibid. 247; 2 Hale, P. C. 189.

When the indictment is for an offence created by statute, or made by statute an offence of a higher nature, the conclusion should be "against the form of the statute in such case made and provided, and against the peace of our lord the king," &c.; and both "contra formam statuti" and contra pacem" are in such cases essential.-2 Hale, P. C. 192; Arch. 52, 53.

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To the concluding words "contra pacem," the words "his crown and dignity" are always added, but are not essential.-2 Hale, P. C. 188.

III. By Information.

Informations are suggestions filed on record, charging a given offence to have been committed; and they are a mode of prosecution by which an offender may be brought to trial without that previous finding by a grand jury, which is required in the case of presentment and indictment.-4 Bl. C. 309; 2 Hale, P. C. c. 20; 2 Hawk. c. 26.

An information will not lie for felony or misprision of treason; the principle being that for these higher offences the party must be accused upon the oath of twelve men before he can be put to answer.- -Ibid. 310; 2 Hale, P. C. 151; 1 Chitty's Cr. Law, 165.

One species of information is that upon penal statutes. This is where some statute has inflicted a pecuniary penalty

upon conviction of a given offence, and a criminal proceeding is instituted against some offender to recover such penalty.-4 Bl. C. 308.

Such informations are considered as a sort of penal actions only, though carried on by criminal process.1 Chitty's Cr. Law, 166.

Sometimes in these cases, the penalty is given by the statute partly to the use of the king, and partly to the use of the informer: in some instances it is given to the king In the former case the information is said to be a qui tam information.

alone.

By 31 Eliz. c. 5, s. 5, no prosecution upon any penal statute, the suit or benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any common informer, after one year is expired since the commission of the offence; nor on behalf of the crown, after the lapse of two years longer; nor where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence.

Another species of information is that which is filed by the king's coroner and attorney in the Court of King's Bench (usually called the master of the Crown Office) at the complaint or relation of some private person.-4 Bl. C. 308.

The objects of this kind of information, are any gross and notorious misdemeanors, riots, batteries, libels and immoralities of an atrocious kind, not peculiarly tending to disturb the government (for these are the object of another species of information, to be presently noticed), but on account of their magnitude and pernicious example, deserving a more summary prosecution than that by indictment. Ibid. 309; 1 Chitty's Cr. Law, 850.

By 4 & 5 W. & M. c. 18, such informations as these shall not be filed without the express permission of the Court of King's Bench; and every prosecutor obtaining such permission shall give security by a recognizance of £20, to prosecute the same with effect, and to pay costs to

the defendant in case he be acquitted, unless the judge who tries the information shall certify there was reasonable cause for filing it; and at all events to pay costs, unless the information shall be tried within a year after issue joined. Under this statute the course of proceeding is to move the court for a rule nisi, that leave should be granted to file an information.

This kind of information is often granted against magistrates for misconduct in their official capacity.

Upon a motion for such information against a magistrate, the question is not whether the conduct complained of is strictly correct or not, but whether it proceeded from oppressive, dishonest or corrupt motives (under which, fear and favour may generally be included). If the act was not of this description, but proceeded from ignorance or mistake only, the court will not grant an information.—4 B). C. 141, note (47) by Ryland; 1 Chitty's Cr. Law, 875.

A motion for an information must be founded on satisfactory affidavits, disclosing all the facts of the case.4 Bl. C. 312, note (15) by Ryland.

In the case of a libel, the affidavit must also deny the charge, and usually in the very words of the charge. But such denial is not necessary when the charge is very general and does not impute particular acts of criminality, but consists of general abuse.-Ibid.

When the rule nisi is obtained, a copy must be served on the defendant, and the original shown to him; and before the rule can be made absolute, affidavits must be made of such service.-Ibid.

If the rule be made absolute, the prosecutor must then enter into the recognizances required by the 4 & 5 W. & M. c. 18. Ibid.

When an information is moved for against a magistrate, previous notice must be given to the magistrate, stating the ground of complaint; and it must be served on him personally if practicable; if not, left at his usual place of abode; and this must be done in sufficient time to enable

him, if he pleases, to oppose the motion for the rule nisi.— 1 Chitty's Cr. Law, 876.

In the exercise of the court's discretion whether it will grant leave to file an information, there are many cases of misdemeanor where this is refused, either because the offence does not require so summary a proceeding, or because the party applying is himself culpable, or because the consequences of such a proceeding would be peculiarly oppressive.-Ibid. 853.

When a party aggrieved applies to the court for this permission, he must consent to waive his civil remedy, and must abandon any action already commenced for the same cause, unless from peculiar circumstances the court should think fit to order otherwise.-Ibid. 856; 2 T. R. 198.

There is another species of information, viz. that which is filed by the king's own immediate officer, the Attorney General.

This is usually called an information ex officio-being filed by the Attorney General at his own discretion, without leave of the court, and not at the relation of any private prosecutor.

The objects of such information are properly such offences below the degree of felony as peculiarly tend to disturb or endanger the king's government, or to molest or affront him in the regular discharge of his royal functions. -4 Bl. C. 309; 1 Chitty Cr. Law, 845.

In case there be a vacancy in the office of Attorney General, informations ex officio may be filed by the Solicitor General.-1 Chitty Cr. Law, 841; 4 Burr. 2553.

Informations ex officio are most frequently filed in the case of libels on government or high officers of the crown, obstructions of revenue officers, breaches of quarantine, or offering to bribe public officers.-1 Chitty's Cr. Law, 845.

The Attorney General may file such information at his discretion, against whom he will, without oath or motion, or opportunity for the defendant to show cause against the proceeding; but he generally proceeds on grounds laid before him on affidavit.-Ibid. 846; 2 Hawk. c. 26, s. 6.

Neither he nor any witness for the crown is bound by recognizance, to prosecute with effect.-1 Chitty's Cr. Law, 846.

But by 60 Geo. III. and 1 Geo. IV. c. 4, if the trial is not brought on within twelve months after the plea of not guilty, the court may interfere, and order it to be brought on by the defendant, unless a nolle prosequi shall have been entered.

Besides these different species of information, there is another called an information in the nature of a writ of quo warranto; but as the object of this is only to try the civil right to a franchise or office, it is now usually considered rather as a civil than a criminal proceeding, and does not require further notice in this place.-4 Bl. C. 312.

Informations are filed in the court of King's Bench only, except when they relate to the revenue; and then usually in the Exchequer.-1 Chit. Cr. Law, 844.

In their form and structure they are subject in general to the same rules as an indictment.

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