the Week of Proper 28 / Ordinary 33
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Bible Encyclopedias
Indictment
1911 Encyclopedia Britannica
or (from Anglo-Fr. enditement, enditer, to charge; Lat. in, against, dictare, declare), in English law, a formal accusation in writing laid before a grand jury and by them presented on oath to a court of competent jurisdiction. The accusation is drawn up in the form of a ” bill " of indictment, prepared by the officer of the court or the legal adviser of the prosecution, engrossed on parchment, and sent before the grand jury. The grand jury hear in private the witnesses in support of the accusation (whose names are endorsed on the back of the bill), and, if satisfied that a prima facie case has been made out, find the bill to be a true bill and return it to the court as such. If otherwise, the jury ignore the bill and return to the court that they find " no true bill." Indictments differ from presentments, which are made by the grand jury on their own motion and their own knowledge; and from informations, which are instituted on the suggestion of a public officer without the intervention of a grand jury.
An indictment lies for "all treasons and felonies, for misprision of treasons and felonies and for all misdemeanours of a public nature at common law." And if a statute prohibit a matter of public grievance or command a matter of public convenience all acts or omissions in disobedience to the command or prohibition of the statute are treated as misdemeanours at common law, and unless the statute otherwise provides are punishable on indictment. In other words, the ordinary common law remedy in respect of criminal offences is by indictment of the accused and trial before a petty jury; and except in the case of informations for misdemeanour and summary proceedings by a court of record for " contempt of court " it is the only remedy, except where a statute creates another remedy, e.g. by trial before a court of summary jurisdiction.
The form of an indictment is still in the main regulated by the old common law rules of pleading, which as to civil pleadings were often amended during the 19th century, and finally abolished under the Judicature Acts.
An indictment may consist of one or more counts charging different offences. Each count consists of three parts: (I) the commencement, (2) the statement, (3) the conclusion. The formal commencement runs thus: " Surrey to wit." The first count begins " The jurors for our Lord the King (i.e. the grand jurors) upon their oath present that, &c."; and the subsequent counts begin, the " jurors aforesaid on their oath aforesaid do further present." The first words, which are placed in the margin of the document, are the " venue," i.e. the county or district over which extends the jurisdiction of the court before which the indictment is found. Subject to certain statutory exceptions it is necessary to prove that the acts or omissions alleged to constitute the offence occurred within that area. The conclusion consists of the words following: " against the form of the statute (or statutes) in that case made and provided, and against the peace of our Lord the King, his crown and dignity." Where the offence is statutory the whole phrase is used; where it is at common law only the second part is used. A formal conclusion is not now essential to the validity of the indictment, but from inveterate habit is in continued use. The statement sets forth the circumstances alleged to constitute the offence, i.e. the accusation made. There are still in force a number of rules as to the proper elements in the statement; but in substance it is only necessary to set forth the facts alleged against the accused with accuracy and sufficient precision as to the time and place and circumstances of the alleged offence, and to indicate whether felony or misdemeanour are charged, and so to frame the statement as to indicate a definite offence for which a lawful sentence may be imposed.
The following example illustrates the form of the statement: " That A. B. on the first day of June in the year of our Lord 1906 one oak tree of the value of five pounds the property of C. D. then growing in a certain park of the said C. D. situate in the parish of E. in the county of F. feloniously did steal take and carry away contrary to the statute, &c." Only one offence should be stated in one count; and separate and distinct felonies should not be charged in the same indictment. If they are, the court makes the prosecution choose one upon which to proceed. This rule is altered by statute in certain cases: e.g. by allowing a limited number of separate thefts, or receivings of stolen property to be included in the same indictment. Misdemeanours and felonies may not be included in the same indictment because of the difference of procedure on the trial; but any number of misdemeanours may be included in different counts of the same indictment, subject to the right of the court to order separate trials or to quash the indictment if it is rendered vexatious by the agglomeration of charges.
There is no general limitation of the time within which indictments may lawfully be preferred; but various limitations have been fixed by statute for certain offences, e.g. in the case of certain forms of treason, of riot, of night poaching and of corrupt and illegal practices at elections. In this respect English law differs from European law, in which limitations of time for prosecution are the rule and not the exception.
Until the mitigation of the draconic severity of the English law in the early part of the 19th century, little or no power existed of amending defective statements or indictments, and the courts in favorem vitae insisted strictly on accurate pleading and on proof of the offences exactly as charged. Since 1827 numerous enactments have been passed for getting rid of these technicalities, which led to undeserved acquittals, and since 1851 the courts have had power to disregard technical objections to the form of indictment and to amend in matters not essential in case of variance between the indictment and the evidence. These changes apply to ordinary offences; but for the most part do not touch charges of treason, as to which the old law in the main still applies. At the present time the looseness of pleading in criminal cases is carried almost too far; for while there is no danger in such looseness when times are quiet and when law is administered by the judges of the High Court in England, yet when crimes of a certain character are committed in times of great political excitement and the law is administered by an inferior judiciary, there may be some danger of injustice if the strictness of pleading and procedure is too much relaxed. In the Criminal Code drafted by Sir James Fitz James Stephen and revised by a judicial commission (Lord Blackburn and Lords Justices Lush and Barry), it was proposed to substitute for the old form of indictment a statement of the particulars of the offence with a reference to the section of the code defining the offence.
The law of Ireland as to indictments is in substance the same as that of England; but is to a certain extent expressed in different statutes.
In Scotland the terms indictment or criminal letters are used to express the acte d'accusation. But except in the case of high treason there is no grand jury, and the indictment is filed like an English criminal information by the lord advocate or one of his deputies: and it is only by order of the court of justiciary that a prosecution can be instituted without the general or particular assent of the lord advocate. By the Criminal Procedure Scotland Act 1887 the form of Scots indictments is much simplified. They are drawn in the second and not in the third person.
In those of the British colonies in which by settlement or statute the English criminal law runs, the form of indictment is substantially the same, and is found by a grand jury as in England. But in certain colonies, e.g. the Australian states, an indictment by a public officer without the intervention of a grand jury has been adopted. In India and British Asiatic possessions the procedure is regulated by the Indian Procedure Code or its adaptations. In South Africa indictments are framed under Roman Dutch law as modified by local legislation.
In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions " against the form of the statute " and " against the peace " are still in use. (W. F. C.)
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Chisholm, Hugh, General Editor. Entry for 'Indictment'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/i/indictment.html. 1910.
