and plainest ground,' leaving him to his [then] remedy by demurrer or motion in arrest of judgment or writ of error.' 1 Chitty, Crim. L. -300; Com. Dig. Indictment (H.); 'forgery, perjury, subornation, or any crime concerning the highways,' so of all crimes that are heinous': Belton, Inhabs. of, 1 Salk. 372, 1696; 1 Sid. 54, 1682; perjury, nuisance or the like': Anon., 1 Vent. 370, 1685; and see Johnson, 1 Wils. 325, 1752; Thomas, 3 D. & R., K. B., 621, 1823. The reason of the practice holds good at the present day: per Alverstone C.J., Lynch, 1903, 1 K. B. 444; 72 L. J. K. B. 167; 20 Cox C. C. 468: high treason, trial at bar. They have also refused to quash indictments for cheating: Orbell, 6 Mod. 42, 1704; for selling flour by false weights: Crooke, 3 Burr. 1841, 1766; and for other minor offences. See also Heane, 10 Jur. N. S. 724; 4 B. & S. 947; 33 L. J. M. C. 115, 1864.

Prosecutor moving] But if the application was by the prosecution on the ground of error or defect, it might, it seems, have been made at any time before actual trial: Webb, 3 Burr. 1468; 1 W. Bl. 460, 1768. Before an application of this kind by the prosecution is granted a new bill for the same offence must have been preferred against defendant and found. Wynn, 2 East, 226, 1802. And when the court orders the former indictment to be quashed, it is usually upon terms, namely, that the prosecutor shall pay to the defendant such costs as he may have incurred by reason thereof: Webb; that the second shall stand in the same order for trial as the first would have done: Glen, 3 B. & Ald. 373, 1820; Webb; and (particularly where there has been any unnecessary delay: Webb) that the name of the prosecutor be disclosed. Glen. A., indicted for perjury at the spring assizes, 1843, entered into a recognisance to try at the summer assizes, 1844. It being discovered that the indictment was defective, another indictment was prepared and found at the latter assizes, on which prosecutor wished to try. Wightman J. held that defendant was entitled to have the first indictment disposed of before he was tried on the second, and refused to allow counsel for the prosecution to enter a nolle prosequi without the A.-G.'s authority, but quashed the first indictment on prosecutor paying defendant his costs of the adjournment and the recognisance, and defendant proceeded to trial on the second without adjournment. Dunn, 2 Moo. Č. C. 297; 1 C. & K. 730, 1843.

Nolle prosequi] The attorney-general never moves to quash the information or the indictment, because he alone may enter a nolle prosequi, which has the same effect. Stratton, 1 Doug. 239, 1779. The practice of entering a nolle prosequi dates from the end of the reign of Ch. 2; there is no precedent for indictments in that of Ch. 1, but many for informations: per Holt C.J., Goddard v. Smith; it is not an acquittal, and the A.-G. or a prosecutor may issue fresh process, but no such case was then (1705) known, and it was at least doubted by the Q. B. in Allen, 1 B. & S. 850; 31 L. J. M. C. 129; 9 Cox C. C. 120, 1862, where a modern form of the fiat may be found. The ancient form in Latin is given 4 Inst. 19-20: information in 1553 against thirty-nine members of the House of Commons departing without license. If the A.-G. abuses this power only Parliament can deal with him: per Cockburn C. J., Allen. It is clear that he is not bound to hear the prosecutor before giving his fiat. It does not appear why statutory authority is given to the A.-G. to enter a nolle prosequi for Customs prosecutions by 39-40 V. 36, 256. See also Burnby, 5 Q. B. 348, 1843. A nolle prosequi is an absolute bar to any further

proceedings whatever in the case, defendant having no right of trial; hence the defendant need not appear in court-as he must in the case of no evidence being offered against him.

It seems that it may be entered after verdict, as in Leatham, 1861, the S.-G. took this course on one count (bribery).

Other grounds] In addition to those mentioned above, 7 Encyc. Laws E. 125, adds: 'where the indictment is too vague and general (Stroulger, 17 Q. B. D. 327,' 1886: C. C. R.), where a majority held that an indictment was bad on this ground, but was cured by verdict; it might have been quashed before it-so Goldsmith, 1873. See now 8. 5 (1) of the Indictments A.

Appeal] Now points of law on the indictment, whether taken at the trial or not, may be raised by appeal by virtue of s. 3 (a) of the Criminal Appeal A.-subject to the responsibility to the C. C. A. for not having taken the point below': see Embarrassment, above; Rendle, 1909; Rye, 1909; and Stoddart, 1909. McCallum, 11 Cr. A. R. 3, 1914, seems to be an instance of an indictment (false pretences, quashed by the O. C. A.) which, since the Indictments A. is hardly likely to recur in so faulty a form; there was no averment that the false name given by appellant was false. Even where every one of the six counts of an indictment was bad for duplicity, but were, on objection, amended, though the C. C. A. thought amendment should not have been allowed, it declined to quash the conviction on the ground that there was no miscarriage of justice: M. Cohen, 3 Cr. A. R. 180, 1909.

The C. C. A. will interpret an indictment where there has been a clerical error and objection has been taken below, and may hold it good for conviction on some charge: Garland, 1910, 1 K. B. 154; 74 J. P. 135; 102 L. T. 284; 26 T. L. R. 135; 79 L. J. K. B. 239; 3 Cr. A. R. 199; and so Thompson, 1914.

Procedure] The application to quash must be made to the court in which the bill is found, except when the record has previously been removed by certiorari to the House of Lords or to the K. B., when it must be made to the former or the latter. Q. S. has authority to quash an indictment found there before plea pleaded; and the Q. B. would not inquire on certiorari whether the indictment was properly quashed, the proper way of raising such a question being by writ of error. Wilson, 6 Q. B. 620, 1844.

Where the indictment had been found without jurisdiction, the court quashed it after plea pleaded-on affidavit; and would do so if the same was clear on the face of the indictment. Heane (perjury, removed from Central Criminal Court to Q. B.); and Goldsmith, L. R. 2 C. C. R. 74; 42 L. J. M. C. 94; 12 Cox C. C. 479, 1873, where objection was taken at the close of the prosecution-when the judge might have quashed-that the two counts for receiving property obtained by false pretences, on which there was a conviction, did not set out the false pretences: the C. for C. C. R. treated the objection as made after verdict in arrest of judgment, and held it, even if good on motion to quash, cured by verdict. Lush J. quashed an indictment for false pretences (as not amendable) after the close of the prosecution, because it did not contain the words with intent to defraud.' James, 12 Cox C. C. 127, 1871; cf. Rushworth, 1816. Where the indictment had, on the application of the defendant, been removed into the K. B., the

court refused to entertain a motion by him to quash after a forfeiture of his recognisance for not having carried the record down to trial. Anon., 1 Salk. 380, 1704.

Amendment] The object of this power was stated in the preamble of rpd. 9 G. 4, 15, which gave the first trifling instalment of it, to be for remedy of great expence and delay or failure of justice by reason of variances

the case.'

...

in matters not material to the merits of

It was at first considered that this power ought to be very sparingly exercised: Cooke, 7 C. & P. 559, 1836; one objection being that the presentment on oath of the grand jury was thereby altered: Hewins, 9 C. & P. 786, 1841. The C. for C. C. R. would not allow one distinct statutory offence to be substituted in the indictment for another: Benson, 1908, 2 K. B. 270; 21 Cox C. C. 631: c. q.; but now the C. C. A. has in certain cases power to substitute a verdict: s. 5 (2) of Crim. Ap. A.

Statute] 14-5 V. 100 was repealed by the Indictments A., s. 5 (1) and (2) whereof now regulates the law; the combined effect of these sub-ss. seems to be that the court of trial could now properly make the amendment in Benson, above. Whether before the Cr. Ap. A. the amendment in A. Allen, 1910, would have been allowed, is doubtful. The tendency of the later cases was to give the then governing statute, 14-5 V. 100, a wide construction': Welton, above; 2 Russ. Cri. 1974; cf. 1975; now every amendment is to be made which is necessary for determining the real question in controversy between the parties': per the judges, St. Losky v. Green, 9 C. 13 N. S. 376, 1860; which is certainly the principle on which the C. C. A. acts.

6

Name, &c. of persons] Indictment Rule 7 supersedes many of the cases on the names and descriptions of persons, but the principles of some may still be useful. Thus, in Frost, D. & P. 474; 6 Ĉox C. C. 526; 24 L. J. M. C. 116, 1855, two Christian names of the occupier were omitted and could not be proved: c. q. Parke B. said: The court are never bound to amend in any case . . . .. but, after verdict [which stated that the identity of the occupier as alleged with the actual occupier was established by the evidence], the questions whether the court should have and could have amended are unimportant, since any amendment that is made ought to be made before the case is allowed to go to the jury.' Cf. Murray, 1906. Where proof of the name of the alleged deceased failed, amendment to a certain female child whose name is to the said proof unknown' was allowed: Welton, 1882: cf. Averments, descriptive. For other instances, see Variances in Index, and cf. Who is the occupier? under Burglary. Barnes, 1866 (L. J.), is an instance of an original indictment, which would have been good, being amended and held bad.

Stephen J. on objection by defence, amended " a certain woman into a woman to the jurors unknown,' although the next count alleged the woman's name. Titley, 14 Cox C. C. 502, 1880. But he quashed three counts as 'too general' in charging by divers artful, &c. tricks and means' an attempt to induce T. T. to commit an indictable misdemeanour, to break the law, &c.,' and refused to allow a fourth for inciting, endeavouring, &c. to persuade T. T. to unlawfully supply a noxious thing knowing that the same was intended to be unlawfully used with intent to procure the miscarriage of a woman' to be amended

Preliminaries to Trial: Defects: Aliens.

273

by inserting the name of the person supplied, or for whom it was intended. O'Callaghan, 14 Cox C. C. 499, 1880, p. 240; but the chief ground of the refusal seems to have been that there had been no inquiry by a magistrate, and therefore the court ought not to go out of its way to assist the prosecution, as substantial injustice may be done by altering' the terms of the grand jury.

Dates] In Dossi, 13 Cr. A. R. 158, 1918, indecent assault on March 19, the verdict was with regard to March 19, not guilty. If the indictment covers other dates, guilty.' Q. S., on the motion of the prosecution, amended to 'on some day in March': verdict, guilty. The C. C. A. confirmed this verdict as good in law, time not being of the essence of the offence, citing 1 Inst. 318; 3 Inst. 230; Syer, 1589.

Clerical error] By a clerical error the owner was alleged to have known that his goods were stolen: conviction; motion in arrest of judgment; Q. S. amended. The C. for C. C. R. held that the indictment was bad on its face for not alleging scienter, Q. S. had no power to amend after verdict, defendant was entitled to move in arrest of judgment, and the conviction was bad. Larkin, D. & P. C. C. 365; 23. L. J. M. C. 125; 6 Cox C. C. 377, 1854. Cf. Oliver, 13 Cox O. C. 538, 1877: C. C. R. See Judgment, below.

Defects cured by verdict] If,' says Blackstone, 3 Comm. 394, 'a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impossible to support the action or defence, this omission shall be aided by a verdict. the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose that a jury under the inspection of a judge would find a verdict for the plaintiff or defendant, unless he had proved those circumstances without which his general allegation is defective. Exceptions, therefore, that are moved in arrest of judgment, must be much more material and glaring than such as will maintain a demurrer; or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceedings.' 7 G. 4, 64, 21, provides that certain irregularities-e.g. if any person has served upon the jury who has not been returned as a juror by the sheriff or other officer-shall not avail to stay or reverse judgment after verdict. See Heymann v. R., L. R. 8 Q. B. 102; 12 Cox C. C. 383, 1873; Goldsmith, 1873; Aspinall; Bradlaugh v. R.; Knight, 14 Cox C. O. 31, 1878: C. C. R.; Kelleher, ib. 48, O. C. R. Ir.; Oliver, 1877; Stroulger; Mansell v. R., at 420 and 422.

Aliens] An alien shall be triable in the same manner as if he were a natural-born British subject': 4-5 G. 5, 17, 18, where 'alien' not a British subject (which title see).

X.

Jury] The general rule for the composition of a jury is that the sheriff is to return a competent number of good and lawful men of the body of his county, qualified according to law': 6 G. 4, 50, 13, as amended. But see Addenda.

Statute] 6 G. 4, 50, 1: Every man, except as hereinafter excepted, between the ages of twenty-one years and sixty years, residing in

any county in England, who shall have in his own name or in trust for him, within the same county, ten pounds by the year above reprizes in lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or in rents issuing out of any such lands or tenements, or in such lands, tenements, and rents taken together, in fee simple, fee tail, or for the life of himself or some other person, or who shall have within the same county twenty pounds by the year above reprizes in lands or tenements, held by lease or leases for the absolute term of twenty-one years, or some longer term, or for any term of years determinable on any life or lives, or who being a householder, shall be rated or assessed to the poor-rate, or to the inhabited house-duty in the county of Middlesex, on a value of not less than thirty pounds, or in any other county on a value of not less than twenty pounds, or who shall occupy a house containing not less than fifteen windows, shall be qualified and shall be liable to serve on juries for the trial of all issues joined, in any of the King's courts of record at Westminster . . . and in all courts of assizes, nisi prius, oyer and terminer and gaol delivery, such issues being respectively triable in the county in which every man so qualified respectively shall reside, and shall also be qualified and liable to serve on grand juries in courts of sessions of the peace and on petty juries for the trial of all issues joined in such courts of session of the peace . . ." and so triable as above.

Wales] By 33-4 V. 77, 7 (amended 46-7 V. 39, Sched.), the qualification in Wales is the same as that in England.

Exemptions] By 45-6 V. 50, 186, every burgess of a borough having a separate court of quarter-sessions or a borough civil court is qualified and liable to serve on all juries in those courts unless exempted by law, but by the schedule of 33-4 V. 77, they are exempt from serving on the county sessions, and so are members of the town council, justices of the peace, the town clerk and treasurer for the time being, of the borough. Justices are also exempt from serving on juries within their jurisdiction. Ib. See also 25-6 V. 107. For full list of exemptions, see 18 Halsbury, 230. I believe that merely being at the bar [but not practising] will not do' for exemption: L. Ellenborough, Watson, 32 St. Tr. 25, 1817.

Aliens] By 33-4 V. 77, 8: Aliens having been domiciled in England or Wales for ten years or upwards, if in other respects duly qualified, shall be qualified and shall be liable to serve on juries or inquests in England and Wales as if they had been natural-born subjects of the Queen: but save as aforesaid, no man not being a naturalborn subject of the Queen shall be qualified to serve on juries or inquests in any court or on any occasion whatsoever.'

Challenge] Challenges are either to the array ('the whole jury as it stands arrayed in the panel or little square pane of parchment on which the jurors' names are written.' Burn's Justice: Jurors, citing 1 Inst. 156-8) or to the polls (persons or heads in the array,' ib.); they are also either peremptory or for cause.

Procedure] When defendants have pleaded the general issue, they are informed by the officer of the court that the persons whose names he is about to call will form the jury to try them, and that they are