C O MPIL ATION O F T HE P E N A L CO D E O P THE STATE O F RGIA W ITH THE F O R M S O F B I LLS O F I N DICT M E N T N ECESSARY I N PROS ECUTI ONS UN ER I T A N D THE R U LES OF PRACT ICE. O O USTON CO UNTY GEOR G I A . M A C ON:
O F B I
DICT M E
s Off ice
ent suitable For
ms which ar
C O D E as
now amende
s, at the
able. In r
ge some
of the
apters of the Penal Code; this part of
Code
unbroken.
The
returning
the Committee, (to wit: Judge
COLE, W A S H I N G T O N POE, Esq.,
and E D W I N R . B R O W N , Esq., appointed
by
Resolution
of
this
their urban
and emi
not only a familiarity
and forbearance
work. The Compiler relies much
upon the correctness of the
work from the fact, that it has
received
the
to
the
public,
profes
work, (as he has for the Analysis,) that he shall
realize
that
indulgence
those who
general
benefit,
thor of it,
ju
hich hav
reby gives him all the power of the ancient conservator
s at the common
ertake, and
nce to the public
te,, that without sinister views
of
and t
here a
scharge o
ally
severely
om.
353.
counties shall be, and they
are hereby declared to be
liable
to
pros
ictment, for
malpractice in
r
perso
ns,
to
nty
ment, the judg
ment of th
with malpr
sing oppres
inistration, a
nd u
2
shall
all
tment, if fo
und true by the grand jury, shall, as in other cases, be
tried by a petit jury and if th e defendant be
co
common jail of the county, or both, at the dis
cretion of the court; and
shall moreover be removed
th e peace.
1st Ewd. III.
Judge Schley m akes this n
ote:
the
public peace has a lways been a favorite object of th e
common
common la w for the
maintenance of the public peace. Of these, some
had, and still have, this power annexed
to other office
d were thence named
hose that
were so
ue;
by
the
Justices
of
tion of the peace
divers statutes committed to
Dalt. c. 2; Clay. Jus. 231.
A nd a record or memorial made by a justice of
the peace of things do
ne
offic
e,
sh
record once say th
aver or speak
o deny the same,
there w ould never be an end of controversies. And, therefore
, to
avoi
of the judge: and hereof it
corneth that he cannot make a substi
tute or deputy in
great
not
this
or
and
cident their a general authority to keep the
peace
ss for
to take
The general duty of
employ
thers,
ce,
and
rvator of the peace, being required to see the p
eace ke
. Clay. Jus. 232.
und over any
to, or be
present t the
he is
magistrat
e,
and
be
y gra nting a warrant
to apprehend
accuser shou
act as a magistrate. 1 Chit. Crim. L
aw, 2 5
hley
lia
(statute of W estmins
ter the first), containin
; therefore, the compiler
were bai
o s
t, 4 B
iffs, &
if th e prisoner be clea
rly
th
as being committed
m accu
so
the peace. 4
Com. Dig. 469.
Secondly. Justices of
fo
good
ccessories to fe l
."
E .
ety
is
offere
ified or
o
t
must sit
together and concur in opinion; for one justice alone has no
p
ower to
ch. 3 , post. No
. 47; 1 & 2 Phil. Mary, ch. 1 3 , post. No. 64. A nd some of
the of
fences c
omprehended i
n t
r, e . < f e c . A n d in ai
l such
cases the
on of th e
bring
and
before any
b
ailment or comm itment made. A n d th e sai
d
examinatio
next superior court for the county in which the cri
m e w
ch. 10, post. No. 65. T
he
j
over all witn
esses by recogniz
izances they
court, w ith the
be directed to the constable, and it cannot be directed
to the sheriff unless
:
1st. In the name of the
State, and yet the teste must be under the name of the
justice
that
may be made without any style, and only
under the teste of the justice, or only
subscribed
by
him.
behavior, or
the like,
where sureties
contain the special
to the intent that the
party upon
whom it is to be served may provide his sureties ready, and take
them with
him to the justice to be bound for
him; but i f the warrant be for treason, mur
der, or felony, or other capital offence, or
for great conspiracies, rebellious
it
needeth
not
cause,
but the warrant of the justice may be to bring the party
before
H.
Every warrant made by a justice of the peace, ought
to
they were
not fetched out of the old learned precedents, but lately brought
in by such as
either knew not or
8 * 7 .
regularly to mention the name of the party to be
attached,
and
must not be left in general, or with blanks to be filled up by the
party
afterward. 2 H . 114; Dalt. c. 169 Clay.
Jus. 859.
10. Where any person or persons charged with any offence, and
brought
before a justice or justices of the
peace,
sufficient
cause of commitment, the justice or justices may, in his or their
discretion,
discharge
be
paid
by
the
prosecutor.
ct
0/1811.
Assault and Battery.
Assault, assulhis, from the French assayler, is an attempt or
offer, with force
or violence, to do a corporal hurt to another, as by striking at
him with
or
him; or
threatening manner. 1
An assault is an attempt to commit a violent injury
on
the
person
of
another.
A n d from hence it clearly follows that one charged with an
assault and
battery, may be found guilty of the assault
and
but
assault, therefore on an indictment of assault and
battery, in which the assault is ill-laid, i f the defendant
be
found guilty of the
no
to an assault,
notwithstanding the many ancient opinions to the contrary. 1 H a w
k .
134, 2 6 3 .
a club, or beaten, to beat, from whence
cometh also the word battle,) is, when any injury whatsoever, be it
ever so
small, is actually done to
the
any way
touching
him
in anger, or violently jostling him out of the way, and the like. 1
H a w k . 134.
B attery is the unlawful
beating
S , C O M M I
T M E NTS, ETC
.
cutor,
the jury.
re me, a
unty,
o u n t y . £ persona
lly cam e John Doe w
ho. .being
duly sworn,
deposeth and
he county
any
to all law-
o u s t o n C o u n t y . £
fu j officers, to
e, James Mack one
of the justices of
county on the oath of
John Doe that Richa
hteen
hundred
said Jo
to brin
the
h
accord
JAMES
P. [L. S.]
of the wa
y appear to the
t.
rd Roe
who is
Def
ence.
his person, or h is
ter his servant, a
;
r if one wrest
o offers violence
justifi>
ab
, I ma
y ju
nd pro
perly sup
necess
e just and
f th i
s act, w
hen any pe
rson or persons
ive evi
ipal or pri
ncipals, at the
it
court made
this de
nion of this c
fo
E N TS, ETC.
nd shows, that hereto
1844. and
sa
e
said
and
the
sum
y show
and a
clerks
of
his
d
eputy
oned in
unts t
ke manner
at the
of academies.
l
i
n
va
arge of t
urt of the
e constitu
t re
ly, the sheriff
d
and
the
16 J U S T I C E S O F T H E P
E A C E .
That f rom and
sha
y
any offence against the State
,
the prosecu
tor to
180
3 .
STA
TE O F G E O R G I A , i Know
all men by these presen
ts, that we,
| and sec
Governor of said State, for the time being, a
nd his successors
and fu ll s u m
dollars, for the true
istrators, jo
The conditio
above-bound did, appear
a warrant against of said county, for a
n
,
his personal appeara
perior Court, to
to jail, to answer sai
d charge :
b e and appear at said Superior
18 J U S T I C E S O F T H E PEACE.
Upon
complaint
warrant
to apprehend the offender if i t be upon the application of
any
person, the party applying
should first make the
came before me,
one
C o u n t y . ^of the justices of the for said county,
who, being duly sworn,
of
made
an
disturbance of the public tranquillity.
Sworn to and subscribed,
JOHN D O E .
)
S T A T E O F G E O R G I A , }
County. To anY lawful officer > to execute and return.
Whereas, of the county aforesaid,
hath, made
and
of
by fighting
quillity. These therefore, to command
you, forthwith,
to appre
for said county, to be dealt with as
the law directs. Hereof fail not, and have you, then and there,
this
warrant.
1,
1850.
due consideration of
the case.
The sum in which the offender and his securities should be bound is
left to the discre
tion of the magistrate
the constitution.
bound over
to court, the following is the form of the recogni
zance, to wit:
O F
County. £ as principals,
acknowledge ourselves held and
and his suc
cessors in office, in the just and dollars, for the
payment
istrators, jointly and severally, firmly by these presents: sealed
with
our seals,
above-bound
Superior Court, to be held
in
Monday in next, to answer such matters as shall, then
and
there, be charged against them, by of said county, con
cerning the
the peace; and
TS, COMMITMENTS, ETC. 19
nizance to be
Signed, sealed,
[L. S.I
TH. [L. S ]
JOHN STILES, [L
recognizance,
such ju stice.
i To the sheriff of
county, or keep
er of the
These are, in the
receive into
taken by
oath, by of
said county, with
ffray,
y
of
law.
1850.
J A M ES M A C K , J. P. [L. S.]
STATE OF G E O R G I A ,) Know a
ll men by these prese
nts, t
payment of which, we
bound shall personally appear at
the Superior Court, to be
held in
next,
said,
fo
he leave of
said court, then
else,
to
£ RicHAED ROE, [L. S.]
STATE OF G E O R G I A , | Know
all m en
curity, are held
and his successors in office, in the just and full
sum of dollar
ourselves, our heirs, executors and
administrators, joi
that
if
bound
there, to
void ; else,
$ RlCHARD
or good b
judicia
l officer, such as a justice of the
peace, judge, < f e c . , whereby the parties acknowledge
themselves to be indebted
to the State in
,
condition to be void and of non-effect if
the party shall appear in cou rt such a day, and in the mean
time k e ep th
e
peace,
als o with regard to the person who craves the
security; or if it be
elf well , (o r
general ly or
ein l imited,
izance, if t aken by a
justice of
the peace, m
ust be certified to the next super ior cou rt, if the condit
ion of
such recognizance
any
e recogni
give
d justices
security;
or
a
ccording to their discretion
they m a y commit all breakers of the peace, o r bind th em in
recogniza
nce to k e ep
i t . Also constables m
ay appreh
ace, and commit
eeping of it. Securi ty
of
peace is av
erse to act,
gran
out
of
justice to act as a minister
ial, and not as
m a ke a return to such w rit, specifying
his compliance
under hi
rec
ognizance
them
being
or other
m erely a private man.
Wives m a y
age, ough t
nds
only,
selves, for th ey
is the nature of those
recognizances or a c kn o w le d g m ents.
A recognizance m ay
th e
ted
hey see sufficient cause; or if he , at whose
E N T S , ETC. 21
request it was granted
se
it,
considered separately.
behavior all th os
nd to his good behavior for
causes of scan
dal againsj; mo
wdy hous
of the officers of justice in
the execution of th e office; all night-w
alkers ;
eaves-droppe
rs;
ny, or are repute
ge
istrate himself: but
profligate course of
port himself or hersel
and w h o is able to work or otherwise
to sup
be
ind
icted
l force.
A c k n o w l e d g e d b e f o r e m e , )
J O H N DOE. [L. S.]
C H A R L E S SMITH, [L.
S.]
STATE O F G E O R G I A ,
To one of the constables
of said
county, and
Whereas, of
the said county, is n o w brought before m e ,
one of the justices of t
he in and for the said county,
charged with requiring
him to f
ind sufficient sure
ance, at th e next Su
perior Court, to be holden
in
and
the
State
the said county.
sureties:
ble,
forthw
the said county, and to de-
rhim to the keeper
alsoTl*ngbY.cornm
safely keep, unti l he
shall
Jind
In all cases w
justice of the peace
shall take a bond or bonds for the security of the peace , or
where
any suc
h
ju
dge or justice shall commit any person or persons charged w
ith a
peace , to the c o m m o n jail
of the
county, or
of such person or
such judge
or justice forthwi
th to m a k e a return of such bond, together
with
the
.affid
n which
quired, or in case of no bond,
to m a k e a return of
the
to m a k e a return of
the
the
next te rm of
the superior, inferior , or city court, w hich may first th
ereafter hold their
ting
said court, on the f
irst day of the said term, or as thereafter as he
can
the judge or
shall be the
when the case
is so presen
ereupon he shall be of opinion that th ere w
as
im
so taken, to be canceled, or
to discharge
e ; and
if he
shall b
ble ground
aid proceedings,
which cost
shall be
covered
in the s a m e manner as fees of witnesses
are;
prov
ided,
n the evidence presen
ted,
he,
or they, m ay receive additional affidavits f r o m
either of the parties touching
the conduct of the parties in relation to the causes from
which such
proceedings
against him, he finds sureties before a
justice of
by
a
of the and finding sufficient sureties for
his appearance to answer any indictment,
and
s
d,
and
a justice to answer the
complaint, but has
ll be preferred
next
sessions,
ff ic
f ind
c ie
en
after the termina tion of the sessions, for a
cert if icate o f the find
ing
by producing the certificate before
, a judge or justice, find ina j iSum-
cient sureties,
arrest >fllfc
protection the defendant should k
eep in his posse
ehend him. The
supersed eas re
cites that the
reties to answer
officers to forbear from
lity of this practice
questioned, and, at all events, it is confined to cases
where the offence is clearly bailable. 1 38.
S T A T E O F G EO
R G I A ,)
es of the
for th e said county,
to the sheriff,
en
icient
surety,
that is to
keeper of the com
ty of has
by him, the said
him, the
pres
umption
constable, safely and
aid county, and you,
into your custod
said jail, there to remain till h
e be delivere
due
C H E A T I N G is another
offence,
s re
in particular trades,
emselves. Th
d down
III. c. 11, and 13 Geo.
III. c. 62 , for ascer
by a
criminal prosecu
tion, be
cause it
is accompani
e, b
e, b
icien t
32 .
ainst the defenda
delivered
him
a private cheat, and not of a pxiblic nature. was
answ
d
the
public, and
therefore was indictable. And the court was unanimously agreed not
to quash
it. 16. 2. and
Sess. c. v . 1.
d civilly, and no
abound,)
and
ju
red
cannot
but they may
indict and punish
If any person, by false represe
ntation
redit, and thereby
defraud any per
son or persons of any money, goods, chattels, or any oth
er
cure others to
or
persons,
wares, or merchandise, o
any other valuable thing or things, such person so offending
shall be deemed
ll
be
onment in the common jail o
f the county, or both, at the
discretion of
injured the property so fraudulently ob
tained, if it can be done.
If any person o
aud or shift,
or any game o
or adventures, or in or
by betting on the sides or hands of such as do
or shall
to any other or oth
ers,
any
such person or persons so
offending shal l be
indicted, and on conviction,
imprisoned
ion of the co
assize established
by the
prisonment in the com
the discretion
of the
hts or measures,
impris
onment in the common jail of the county, or both, at th
e discretion
of the
Personall
y
app
f^
and s
county
lars, the prop
erty of him, the said from him, the sa id These
a
to be d
. [L. S.j
er
um of dollar
s, for his
ld
d cha
as aforesai
d, these
to
f
law.
1,
1850 .
J A M E S M A C K , J. P.
[L. S.]
W A R R A N T S , COMMITMENTS, ETC. 31
B e i t remembered, that on day
of
in the year of our Lard eighteen hundred and
S T A T E O F G E O R G I A ,
County.
of in the said coun ty, cam e before me,
one
said
did acknowledge himself to owe to his excellency,
governor of this State, for the time being, and his successors in
office,
the sum dollars, current money of this
State,
under
before the judge of the
Superior Court, at the next Superior Court,
to be holden in and for the
county of the court-house, at on the Monday
in next, in the year of our
Lord
there to g iv e evidence in behalf of the
State against
arrested
then
this recognizance to be void : otherwise, of force.
T a k e n b e f o r e
m e , the
) J O H N DoE. | L. S.]
STATE O F G E O R G I A , ) B e it remem bered, that on day
of
C o u n t y . ^ in the year
of our Lord eighteen
before
me,
and in the said county,
and acknowledged himself to owe to his excellency,
governor
and his
levied of his goods
and chattels, lands and tenements, to the use of the
said
State,
shall fail in the condition under
written. J A M E S MACK, J. P. [L. S.]
The condition of the above-written recognizance is
such, whereas,
day,
brought
of
the
above-bound
was
committed
case
may be,) to the common jail for the county of If,
therefore,
the said shall and do, at the next Superior Court, to be held
for
the said county, on the Monday in in the year of
our Lord eighteen hundred
cause to be preferred,
a bill of indictment, of the said charge, against the said
and shall then also give
evidence
said charge, as also to them
that shall pass upon the trial of the said that then this
recognizance.to v o i d ; or else, stand in full
force
v o i d ; or else, to stand in full
force
for the State.
S T A T E O F G E O R G I A , ) Personally appeared before
me,
C o u n t y . one of the justices of the in and for said
county, who being duly sworn, deposeth and saith,
that
on
red and
believe
that
T
o
f
the
constables
n
C o u n t y . j said county, and to all
la
that he,
such informa
as
STATE O F G E O R G I A
, o Before m
, deposeth an
being
unpaid.
Sw
scribed,
) E
ty, to
all sh
** c o u n t y . j constables, within thi
s
Stat
e.
, t
counties
nd forthwith con
custody,
until
W
ARRANTS, C O M M I T M E N T S, ETC. 33
receive him into your
this
county of at th e court thereof, to be held next after the
said
arres
t,
ho
not.
MACK, J. P . [L
.]
BT oTR If the person was in jail, on charge of any criminal
offence
, and escape,
for said county,
it,
n, and
said
cause to
did stea
)
S T A T E o . P G E O R G I A , , ) T
o Constable, or t
for the county aforesaid, that
divers goods,
dolla rs, hav e felo
niously been
said county, and that
late
and
yo
said
and
bring
as the
Thef t
or larceny from the person, as distinguished from
robbery, before de
scribed, is the wrongful
fects, or any
stealing therefrom any
emplo
yed
of govern
ment of this State, or any county, town, or city of
this
or other corporate body in this State
, or any presi
dent, director,
or stockholder of any bank, or other corporate body in this
State,
who sha
bezzle, steal, secrete, or fraudulently take and carry away
any
money, gold o
r
or
o
market price
r, nor
longer than
nitentiary, for
rs, nor longe
ed b
one of the justices of
the in and for said
n hundred and at
and return.
Forasmuch as
of said
eighteen hundred
then an
These
S.]
S
IA,) Be
it remembered
, that on
day of
C o u n t y . j j n the ye
ar
came before m e , one
of
the
office, that is to say, the sa id the sum
o f d
ollars, and the
eparately,
of
goo
their
goods
said State, if the said
shall make def
S.]
STATE
I A , )
embered, that on the dayof
C o u n t y . ^ j n the year of our Lord eighteen hundred and
of said county, personally came before me,
one of the justices of t
he
fo
r
overnor o
d and l awfu l money of
said State, to be made
a
n d
lev ied of his g o o d s a n d chattels , lands
and tenements, to the u se
of
ll fail in t
writte
n
T h e right of the peop le to
be secure in their persons ,
houses
, papers,
and
no warrant shall
f irma
tion, an
d particularly d escr ib ing the p lace to
be sea rched ,
things to be se
ized. A end. C
U p o n re
gularly granted, an d special ly di rec ted , it s eems to
b e settled, that a
fter the
ons , the house to
m ay b e
b r o k e n open, and whether the property is found th
ere or not , th e officer wil l
to hav
e been made , though never d is t inc t ly
reco
gnized, as far as r
espects proceeding s , that the officer w o u l d be
just if ied , or not , acco
rding to
from its hav ing been improper ly f r
a m e d , this idea could not now be su pported.
It
malic ious ly procuring
a search-warrant
is a n s w e r a b l e to the per son
aggrieved in an act ion on the
case. A s warran
unless
under the provision of
that a constable b reak ing open doors under
the color o f their authority canno t
b e
f rom all
that if th ey a re legal
in form, though improperly
gra
nted,
h
e
m
ay safe ly bre a k o p e n the doors to execute them ,
whether his
search succeed
make a w
e very incon
er of any justice of the peace, or any othe
r
o break t
he
pleased
, eithe
r
by
such surm
goods stolen, and
that the deponent
suspects the goods are in such a house, and will sh
ow
good
cause
ch susp
party in
him or som
thereupon as s
should be exec
uted in the
house, the officer
deman
If the goods be n
ot in
the break
ing ope
n the
to
or constable, to
that
s
ere
sto
over as a wi
new they
set
forth,
he
find
them ;
Bur.
. Con. U.
900
121
S T A T E O F G E O R G I A ,
Befo
in and for
low
d in the
To consta
f said county.
to wit,
, out of the
of the said
at in the
spect, that the s
are concealed in
sea
e same, or any part thereo
f, shall
any person w ha
a man who
ff
urt a
gus, at Athe
s,
of their occupa
ll
idle
n the ni
customable taverns, and ale
-houses, and routs about;
go;" or s
uch as are
in the
erly
p
rrection; ro gues
ue (before
to
or shal l have upon him any
committed, w ould be punished by death, or
confinement in the
penitentiary; or sha
house, w are-house,
to steal any
onfinement and labor
five years, or
unty, at the disc
re tion of the
that may here
e,
of any felonious
hin this State, so far as to have been com
mitted
or
to
trial
om the laws of
such c
ined in jail until
executive authority of the State where the crime was
com
mitted,
f this State sh
tate w here the crime was
comm
IA, 3
he justices of
^ the
erson ap
neglects applying
alling, but is now
an
profligate course of life.
Sworn to and subscribed, )
before me, this 1850.
F G E O R G I A , > To C
onstable, or any
other law-
C o u n t y . j fu l officer, to
execute.
one
of and for the said c
oun
sistence, and neglects applying himself to any honest calling,
but
is
about w
way, endeavoring to
im
ore, to comm and
before
me,
f
ned touching the premises,
and be otherwise dealt
N O T E . W hen the accused
pe r son
be
fore
he is brough t (if the offence b e bailable,)
m ust bind h i m
for
hig
a
ppea rance at
d
fails
to
g
for his appea rance , the Justice m ust c
o m m i t him to jail.
STATE O F GEORGIA, i In
person, appeared, in open cour
t,
y, w h o , jointly and
s
his
dollars,
good
goods
for the payment of which sum they bind th e
mselves,
such,
tha
ally,
ourt, f rom day
term of
said court, and f rom term to term, and testify o
n the tr
but by
leave of
said court,
DOE. [L. S.]
E, [L. S.]
STA
TE O F G E O R G I A , ln
person, appeared in
security, who, join
excellency,
gove
and
law
their goods a
nd chattels, lands
ey
The condit
ion of
that whereas there is
rior Court of said county, now in
session, against
MMITMENTS,
ETC.
43
now
of
from
leave of said
or th
e State.
Tested and
E, S.]
examination o
f of
in the
y . | c
of and
evidence
in
t
he
co unty, taken upon
,
JA
n of the profess
me to
frequently
a
felony in the county of B, and then went into
the
county
n, and commit him to jail, in
the
be removed, by Habeas Corpus, to
ld al s
warrant to arrest
hit. Grim
II
, and 24th Geo. II.; but, it is said, in st r
ictness, t
does not
in g
ld
m
ode;
h
ence,
think, there is no doubt but a Justice may issue his "Warrant to
arrest a
felon, being wi
I L L
any lawful officer,
cute and return,
ST
. _ , .
To the honorable S
y.
The
ed
before
J.
P.
NOT E. For the information of the justices of the peace, it is here
mentio n
ed, once for all,
1 1 > . a t the Examination of the accused, the Information
of
the witnesses,
ach particular case.. If these requirements, or either of
them,
be omitted, the prisoner
be acted upon
r respective counties, on or before the first day of
the
en
length
of
e
he delivers the prisoner to him, that
they
for making out a warrant,
31i
oena for
CH PTER
RE Q U I S I T E S O F B I L L O F INDIC T M E N T
A N D RULES OF P L E A D I N G .
RE Q U I S I T E S O F B I L L O F INDIC T M E N T
A N D RULES OF P L E A D I N G .
A n In
more
persons,
of
jury. 4 30
162 .
An
mencement ; the
statement, an
L L OF INDICTMENT. 45
The C o m m e n c e m e n t of
every Ind
be
p
rosecuted.
the only part of the C o mencem
ent of
an Indictmen
t that requires
atten tion. The general rule upon th is sub jec t
is, that
as
c
ommitted, the. venue in the margin should be coextensive
with
the jur isdic
descriptive of the limit to which the
juri
within the lim
w ay
the ingredients of the
is charged, the fac
nces, and in
tent consti tuting it, mus t be set forth with certainty and
precision, wi thou t any
repugnance
or
be
c
ed it. 28.
te
to
specific y
ear and
217.
The precise time, however , is not material , even in
criminal cases.
1
25
8.
ich the act is
.
[A l l Indictments mus t be in words at l
ength, and
or can any figures
bers
mus t be expresse
when o
17
6 .]
Time as well as place must , in general , not m e
rely be ment
ed to every issuable and triable
fact, for w herever a venue is necessary, t ime should
be
u
as
b
, it is af terwards sufficient to
refer to it by the
words , w hich have the
but the meie conjunctio
ny
case
day of in the
year of o u r L o rd, one thousand, eight hundred and
in the county afore
ly
observed in in
life of the prisoner is in danger.
1 221.
T h ou gh the allegation
of a specific t ime is thus important , it is in no
case
necessary to p rove the precise day, or even year , laid in the
indictment, except
w here the t ime en
te rs
an offence is alleged to
have been
not b e considered
the fi
nding of
a
f Georgia ,
in dicted oug
R EQUISITES O F B I L L O F
INDICTMENT.
m a y be m ade in th
ese
respec
ts,
ot
a
vantage of the error.
s in which the name of third persons cannot be
ascertained, in w
state, a certain person o r persons to the
212.
I
t is a genera l ru le in indictments, that the spe
cial manner of the w h
ole fac t
ought to be set forth wi th such certainty, that it
m a y ju dicially a p p ea r to the court, that the indictors
have
gone u p o n suffi
cient premise
hand, as
observed b y Mr. J u stice Buller , it is the
du ty of a good pleader no t to clog the record with
un
client than the law requires ;
and it is still more his
du ty
of the indict
. 1 228.
that w here the
lawfu
e m a t
ters
m u s t be set forth in w hich its illegality consists. 1
229.
that all indic tments ought to c
harge a
ffence,
and
not
st,
except
at the defendant
m a y clearly unders ta n d the charge h
e is called upo
at j u dg m e n t is to
be pronounce
at pos
teri ty m a y k now w h a t law
is to be derived f
rom the record ; biit it is not ne
f
ment as long as his evidence. 1 231.
If
nected with the
urt
understanding of
cr
iminal
which the party fra ming the
charge
he intended his accusation
238.
m
nd technical objections.
o appro
priated by the law, to express the precise idea which
it
entertains of th e of
fence, that no
able
rbids the doing of a thing, the
d
and conse
sturbance
consequential injury. 1
cient, for want
e
qua sh the proceedings, where they have
been
be
erally
agreed,
plying
fo
ever th
e o
l or
241.
crime existed a t comm on law, and is man
if
48
e indictment, though th
269.
A
reason wh
ndicted
ay not find it murder as to one, and manslaughter
as to the
on appear to the grand inqu
est, upon the evide
presented, against
the les
cases
included
nt such joinder,
roceedings, and be bad
ses
o
f
and
where
al of so
ossible for the
rest to hav
ev
illegitimate chi
ld, and
as ar
e applicabl
ates. 1
cannot be convicted before the principal,
w
of
th
th
us
same indict
e genera
oth may be tried by
INDICTM
ilty, that the latt
the guilt of
in f
orm aforesaid
th
clusion mu
the
princi
quisite, because
to use
the
m
perfec
tly
i
mean
s
nature,
it
would
lead
scribed upon the rec
to aver that
the latter committed
suffic
tion must
give way
to positive
the supposed ac
separat
e
ory, to
aver the
ry escaped un
It is not nec
essary to allege in
e have now only to take notice of some circ
stances which ma
y arise af
W h e r
e court will refer
d was u
master to see w
d was u
th e
clerk o
r
Mid
dlese
improper lengt
R E Q U I S I T E S O F B I L L O F I N D I C T M E N T . 53
former prosecution, &c., which is rendered unnecessary by the
express words
of the statute
s. 1,
i t was ordered, that i t should be referred
to the master, to see what part of the record
was unnecessary,
matter. 1 293.
be fatal. W e hav e
already seen with what seeming accuracy time, place, sums,
magnitude, quan
tity and value, must be described ; but a variance in the
evidence
from
these
points will never be material, unless the
essence, or degree of the offence, con
sists in their correctness. B u t where time i laid as part
of
the substance of
the charge, as in case of burglary, we have seen, that
such a mistake, as will
vary the nature of the crime, will be fatal. A nd it is a
general
struck out of an indictment, without injury
to the
the degree of
with which a statute must be
recited. W ith respect to pleading other documents, much must
depend
upon
the
describe the instrument, and the
importance of the instrument,
mere matter of
a techni
cal and formal variance will not be fatal, as in
an indictment for
indictment for
is
material. B u t then no
phrase
must
fesses an
exact recital, as to the tenor and effect, or aforesaid, or
in
the words and figures following, but in manner and form
following,
that is to
even
the term instead of
does not alter the sense,
by changing one word
forth
a
on a plea
of
the
not prejudice, but may be rejected
as surplusage. And in an indictment for
perjury,
necessary to set forth
any variance
fatal:
thus,
ground
have taken
where, in an indictment for
perjury,
the
committed in an information before a justice,
though in order to complete
the
in an action for malicious
prosecution, the acquittal is alleged to have taken place on W
ednesday next
after 15
&c., in
after 15 days,
before
the King himself,
at W estminster, before the Lord Chief Justice, when i t appears
from the record,
that the trial was at Nis i
Prius, the proceedings have been regarded as
altogether
erroneous. And thus, not to multiply instances, in all prosecutions
for forgery,
perjury, blasphemy, seditious words, libels, &c.,
where the
very terms and expressions employed by the defendant, and
which
must be set out on
the
sense is affected, will be
material. And the scrupulous nicety, in
these
N T .
pronoun " 7"
of a
entitled to
t, yet if t
acts
char
etences, state
nk
of
ndant sa
id generally,
" that
the money had been paid into the Bank of England," this
w
as held
com
necessa
of
the
def
he least partoof
te d. An
taken b
bot
h
are
r will be mat
house-breaking, the nam
e of the
ga
duly p
ment have also
each clause and
express exceptions
indictments are not withi
ples, with
ll
pl
ry upo
n oath,
the concurrence of
d.
A
for
the
me they
ame
may, there
court, before
the commen
lige th e defendan
demur,
th
r for
their discr
rcise, which w e
m
quash the
A D I N G . 55
the costs are first paid him. But where the indictment
is insufficient, and the
sh it upon the motion of
the prosecutor ,
nt, though it is for a cri
me;
in which they never show the same indulgence upon the application
of the
prisoner. 1 299.
s by which the
rous
; be
n of the defe
ffence, unless up on clearest and
groun
or
no indictm
which
diately affec
t the publ ic at large, as perjury, forgery, extortion, co
nspiracies,
offences affecting the
n
or
executing le gal process, will be thus summar i ly se t aside.
1
300
on a statute, merely because it
does not conclude
nt
general , mus t be very gross and apparent, to induce
the
court
w ay, instead o
to
the more usual remedies, of demurr ing, or moving in arrest of
judg
m en
s the court thus to
interfere, they must quash the w hole indictment, for they
cann
ot strik e out some
counts,
defendant did
h the
rt
may,
are ch
oner, they commonly, in
ood indictment ha
has been quashed ,
regular
one m a y be preferred ag ainst h im : he can gain, therefore, in
general,
very
little
ad
and, therefore,
the-verdict, when, if th
58
R U L E S O F P L E A D I
N G.
by
ted
hile
e may deny the
felony. But it se
ems to be uns
omission or bad state
ment of the d
on, or must plead
it in abatement. The
rt to exami
ne the validity
was taken
once
d, the defendant
e prosecu
tion he
ut the
perm th
e
m
ay demur at any time before Jrial, in cases of
misdemeanors
, eve
n
offence, as
s on his arraignmen
ictm ent till a
ual to hea
r his exc
led,
and
tly stated, e
vidence under the
he demurrer, it se
e
o
bjection
deniiy, and at the same time
plead over
r
against him. 1
in law, and
that the said
is not b
to answer
erefore, for want of a
sufficie
said premises
suse. 1
founded upon
so matter
ers the indictment
ict
plead
this
a
fact, i
o
demu
name, that th
e former but
now settle
d to be groundless, and an error in the latter is
equally
fa
one of them
arrest of judgment. 1
ch, b
ney, as well as if the
party
the
t,
on
default
accepts the ple
person intended, and
any plea in ba
arraignment, whe
defendant mus
t im
ony
lay. But the regular practice is
to engross
to be signed
ng cha
rged with
elony, the
parchment; but
een deter
mined against
offence, together with a plea
in aba
record, as
a in
o w n p
roper person, cometh into
d
county aforesa
said
at any time hitherto, hath been cal l
ed or known by
id indictment is su
pposed ; and
this he,
the said is ready to verify ; w h e refore, he p
ray th judgment
ame may be quashed,
ant in this pros
e
ab
substance a
is
the
lo ses
his plea, and he may be i m m e
dia te l
or rep
ly that
by one Christian
prosecu
and in cases o f felony, the
demurre
defendant, the
delay. But,
crime, after the indictment has
prisoner, but cause
be indicted by the name disclosed in his plea; to
which,
And
if
several defendants and allowed,
without affecting it
felony, he
rer to the p
judgment is
7.
consideration of sp
efendant
ctment. The principal of th ese are, a
pre
all
now
e
prin
indictment or appeal,
cisely the sam
was sufficient. As
cr imes
an indictment r
e charge, fo
indictment fo
r lar
, t
erty of the legal owner. But wh
ere,
t, the def
uld, no acquittal
be really
D I N G .
an acquitta
, a
gener
al
and, if
the the
ted of th
f mans
ecution f
were innocent of
f the
same fact,
and
de
uittal of
petit treason
petit treason.
nt could o
t have been
if the
tealing,
ar,
for
to a tresp
ass or m
defendant is indicted and tried for the
m
isdemeanor,
felony, to have gon
found guilty
on the
first, upon
dicted
f
econd.
t preju
r charge di
ound, i
in
oods be carried into another, so
as to make i
the v
erdict of
the grand jury
o
au
an be in
it was
ipal and accessory
before the fact
latter, though it w
from being indic
al aspect, and
that evidence of
om m ission, it follows that a previ
ous
en
cha
f tw o
offences are suppo
sed to have
a h orse
f one w
1
us plead
ed, it
itted for a crime, and no bill be preferred
against him,
or, if
by
s be fo u
be
th
E P L E A D I N G . 63
verdict
be given by the co u rt
, that
he go thereof w ithout
day, this - w i l l amount to a su ffic
ient acquittal. 1
be
effec
in the
n o w settled
ny court whatsoever,
sufficient to
erroneous acquittal is con
that
the prisoner any ground
itself must not be materially de
fective,
for
r prosecution is no bar, because the life of the
defendan t was never legally
in jeopardy. A nd
that a
thereon f rom
the
judgment
and, if
prisoner be reversed, he may be arra
igned and tried
render that
ich relates to
m
artly of
y of matter
tment and acquitt
of the identity of th e offence, and
of the person,
of
recor
n o w settled to be abso
lutely requisite to set forth, in the plea, the re cord
of
in
ath neither the custody
65
by
the said
rgia oug
in
dictme
in the said indictme
ictment mentioned, t
here all
rders be expres
of the act, bec
meanor, it subseque
verdict, unless its da
ings, be
cause th
e former
estops the
sue,
6 7
h , or exercising
a trade; but
practice to plead only the general issue, and give
the special
m a
t.
the only cases,
necessary, are in the
repair hig
With
r
espect
highw
order
to
show
that
other, qua
und of discharge i
exoner
ate
e other is bound, by prescrip tion
. But this does
tion is altered
p ar
supposed to take
lea of
fact of .a
give in evidence, that private individuals have
been accus tomed
to repair, or
ic. O n
common right, liable to repair, as a particular
division of a
n
individua
under the
first of
pair the
But when an act of par l iament has
authorized a publ ic com pany to m ak e al terat ions , and
they cut or
the necessity, and
will be
a lways
liable to keep them in repair , w h en necess
ary. And, as where a particular body
some charter, or other m e
ans, t
so if the parties on
w h om the
e
offe
conviction, sett ing out th e
record, and av
p lace
in ques
a l
upon the
w
.
is
repair, fo r
ut no ground of
question is in sufficient repair, or that it is not a pu bl ic w
ay, or that it does not
lie wi thin
t, for all these must be alleged in the indictment
and given
in evidence
es,. any such
ng the sum
l of the justice b
efore whom the person o
r
ha ll be
sufficient
R.
NPOWDER
aters,
secti
to seizure and
laws or parts
r
waters of
d any c
or shall inveigle,
seaman,
That if any
y
or
about
um of not m
the fo
ctive ships or vessels,
of o
repealed.
.1843.
9
llowed
to
the cure of diseases, for
in
th
shall hereafter pres
is
rd,
d, and
exceeding the sum of five hundred dol
lars, fo r
months ; one half o f the fine to
enure t
hal l inform, and the other
half to
indic tments
enumerated in
this act , it shall be e n c u m b e
n t on the d efendan t to
s h o w that h
e
to practice phys ic
cure
manner here inaf te
r ment ioned, to e x e m p t himsel f f rom the
pena l t i e s enumera ted
in
this
12. SEC. IV. That a ll bonds , notes, promises and
a s s u m p tions,
m a d e to any
per son or pe r sons,
not l icensed in manner he re ina f t
e r ment ioned, the
considera
shal l
b e services r e n d e r e d
as a physic ian or su rgeon ,
in pre
scr ib ing for the cure of diseas
es, sha ll, and they are h e r e b y declared ,
utterly
13. SEC.
proper regula t ion
of the p rac t i ce o f phys ic
and
surgery , there sha ll be es tabl i shed a board of physic
ians, to be assem
who shal l , at their annua l meet ing , examine
all
f o u n d c o m p e
tent , shal l
grant
to s u c h applicants a license to p ra
ct ice phys ic
:
that s e v e n m e m b e r s o f
sa id b
to m a k e
s u c h ex
aminat ion , a n d grant
shall have studie
rec
e ived a d i p l o m a from any medica l col lege, the said
board ,
th e board
a n n u a l m e e t
ing
physic ians o f
G e o r
ll be h eld at the seat o f government ,
on
t
h e f i rs t Monday in D e c e m b e r ,
in each
shal l
be enti t led to receive and
d e m a n d of eve ry appl icant , when l i censed , the s u m of
five dollars , for
each and
xaminat ion , a n d
the su m of five for eve ry l icen
se .
16. SEC. VIII. That no part o r c lause o f this act sh al l
have any operat ion
o r effect u p o n any pe r son no
w pract ic i
a n d w
h o has here to fo re been a pract ic in
g
17.
SEC.
IX.
That
s ic ian ,
to
sa
previously
a license
c rea ted
b y this act; and every a p o t h e c a r y s
o
vend
cines con
ct,
imposed by
:
that no th ing here in con ta ined
be cons t rued to prevent m e r c h a n t s
or
s h o p - k e e p e r s f rom vend ing or exp os ing to
sa le medic ines a l r eady prepa
red:
shall be
any
per son or persons , w h o n o w are, and here tofor e h a v
e been ,
e n g a g e d .in the
sale of drugs and medic ines as apo theca r i e s , o r w h o
m a y be, and
here to fo re have been , engaged in the vend
ing
of
drugs
18. SEC. X. That
to exam
ine any apothecary w h o m a y to it for a l icense, touch
ing
their k n o w l e d g e o f d rugs and p h a r m a cy
, and on finding such pe r sons qualified,
sha l l grant s u c h lice
nse, and
this
and surgery.
19. SEC
the board of physicia
se to appl icants therefor,
and m a k e repor t thereof to the board a t
their
next mee t ing fo r
given
by
the
applicant:
force longer than
the next meet
a temporary license shall in no case be granted by
one of
ized
and
empowered
all
such
of the
death, re-
movalj or refusal to act, of any member of said
board, the said board, or a
quorum
up any such vacan
cies.
2L SEC. XIII. That said board shall enter in a book, to
be kept by them for
that
and every person they shall license
to
practice
physic
together with
shall publish
the same in some
newspaper printed at the seat of government, within thirty days
after
granting
shall be
considered a
to hold property, both real and personal; keep a common
seal;
so kept by the board as aforesaid
shall be considered a
from the
sa^ne, certified
by the proper
officer, under the common seal, shall be taken and received
as
evidence in any court of law in this State
1 8 2 5 .
force an act entitled, An Act to regulate the
licensing
23. SEC.
act,
force and operation.
.24. SEC. II. That the following named gentlemen shall constitute
the
board
State,
to wit: L . D . Ford, J. P. Garvin, G . M . Newton,
E . M. Moore, J.
B ranham, B . F. K eene, E . A. Broddus, H . T . Shaw, Banks,
Phillips,
Fort,
B . A . W h i te , C. J. Paine, T . F. G reene, Geo. D.
Case, H . K . Burroughs:
tiates
Physicians, shall be
so revived.
A N A C T to alter
and
the
licens
ing physicians in this State ; to prevent apothecaries vending and
exposing to
sale
within this State, drugs and medicines, without a license from the
board
of physicians; and to prevent merchants, shop-keepers, and all
other persons,
from compounding and preparing
drugs and medicines, or
25. SEC. I . That from and after
the passage
phy
sicians
examining
shall
hold their annual meetings in the-CiiT O F MACON, in this
State.
SEC.
militating
the
IA .
1.
Gr
n,
Hug
h L. D e n n ard, Joseph M . C ooper,
William H
s H. D
said,
wi
e,
witho
u
![Decreto 1850 ]](https://img.pdfslide.net/doc/110x75/556332a8d8b42a61348b56be/decreto-1850-.jpg)
