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3.
CERTAINTY INDICTMENTS Constriction of
had been holden good. 20 H.6. Indictment 9 12 + + , W. H. 512. And yet says he, as if what he was going to observe was repugnant to instead of confirmatory for what he had observed before Indictment ( says he ) quod A. verberavit B J.20 juctis feritic 20th felindic held good without shewing whose they were If the of specification of the person
had been from thenceforward been missed, all those niceties would have been avoided.
It is curious after this to observe with what tranquillity the same Author at the distance of 3
pages reports afterwards another determination which contradicts this, but does not tho it does not overthrow <add> -turn this </add>
it is, because it is anterior in time || yet is in direct contradiction to it.
The requiring of this specification in not Forgery is not less liable to entangle the proof
|| An Indictment, quod invencit hominem mortuum, & felonice fruartus furit duas tunicas without or saying de finus & cattuttis of the Executor or Ordinary, is not good, and therefore the party was discharged. 11.R.2. Indictment 27. in niceties ||| It may be the subject of doubt & litigation on whom the loss will eventually
fall in such a case: it may again be a question subject of doubt both whether it were that person
supposing him ascertained or some other whom the malefactor had in his contemplation: [to defraud] for both which
questions, the one depending in good measure on the other, the duplicit <add> tacit </add> decision of the Jury seems to
be called for, when they are required to satisfy themselves before their verdicts that it
was with an intent to defraud such an one in particular that the forgery was committed. ╫ |||
╫ at any rate an alternative charge may be allowed
[On three two different prosecutions the proceedings in which are reported handed down to us] for House burning It is a lamentable
thing to observe the Judges after full proof of the crime, could not give their full qualification <add>till after </add> their to satisfy & taking a world of to
determined themselves whom the House belonged to. They might as well have set themselves to work to find
In offences [or only ] against the person, as Murder - Assault - Battery, &c, specification of the person injur be necessary at least useful, to prepare the accused for his defence.
out whether it had few or many windows, or whether the owner of it was a fair man or a .
---page break---
In the first of these cases ╫ ╫ Cr. Ch. 376 - 377 - Holme's case 1 Hale . 568. G. C. March 10. Ch. 1
the Malefactor was actually absolved. For the burning of a House they said
was not Felony, unless it was the House of another. Who told them so? No point determination
to that effect was hinted at, or subsists. They could only therefore found their decision
only on the suppos'd reason of things - but what reason? It may be said the occur for a <add> For a moment it may occur that</add>
moment <add>it was for this that that the</add>
mischief does not here subsist, since it was his own property that he was destroysing
||| it gave birth to a doubt, over and above those which are here mentioned, & which to the solving of which a Legislative exposition was deemed necessary to solve - v. 321 G.2nd c.22.§ 78 - For by the a long section introduced after 76 equally long Sections which employ'd about quite another subject.
But that was not it was no such thing the case was not so for he has but a short Term after the few simple
in another. If it had been absolutely his own, there would have been just the same result
for punishing him as ever, for [ It was House was encompassed with others, & fired with as was others were exposed to suffer by it, & such was charged to be the # ] # He was punished as for a Misdemeanour
charged, & for what appears proved to be fired with intent to burn them.] Judge Croke
who reports this decision, it without effect
In the other +, + Tort. 115 Au. 1753 the Interest was greater, and the House was insulated. and yet all
the Judges thought themselves authorized to depart from the former determination upon
this . . . distinction, that there was a possession & here was none. - Not but that
the Malefactor lived in & managed & had the of the House in question in both cases - but in
the first House latter there was no possession in Law x x And who had told them that the former decision went upon the ground of possession in Law & not of possession in fact? Thus by the shock of opposite
determinations is the Law kept set in floating in uncertainty - Do the first one set of Judges deserve
most blame for setting up an unprincipled exception, or the last others for eluding it bg a frivolous
Where was flal made before the last determination 9.G.1.c.22. which makes it Fel:y without Clergy to set fire to any House - but that Indictment appears not to have been laid at Common Law against that: since no notice is taken of it in the Argument
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