which are no part of a man's name, ordinarily makes no difference.52 If a man is known by two names, he may be indicted by either,53 or if he holds himself out as having a certain name, that may be used.54 It is sufficient if the name given in the indictment is idem sonans (has the same sound) with the defendant's real name.55 Corporations should be indicted by their full corporate names.56 Misnomer can only be taken advantage of by a plea in abatement before pleading to the merits which states the true name of the defendant, and the effect of such plea can be no more than to delay matters, since a new indictment may then be presented.57 At common law it was necessary to state the estate or degree or mystery of the defendant in addition to his name, and also the place of his residence. By estate or degree is meant title, rank or condition; by mystery is meant the trade, calling or profession of the defendant. This rule as to addition, though abrogated in most states, still holds good in some states.58

54 City Council v. King, 4 McCord (S. Car.) 487.

55 Rex v. Shakespeare, 10 East 84; Clark Crim. Proc. 341, note 75; 2 Bish. Crim. Proc., § 688. See also, Woods v. State, 123 Ark. 111, 184 S. W. 409 ("Wood" and "Woods" are not idem sonans); Culliver v. State (Ala. App.), 73 So. 556 (“Culliver" and "Cullifer" held idem sonans); Watkins v. State, 18 Ga. App. 500, 89 S. E. 624 ("Maria" and "Maree" held idem sonans); Lunsford v. State, 807 Tex. Cr. 41, 190 S. W. 157 ("McKeg" and "Mc

Caig" held idem sonans); Taylor v. State (Ala. App.), 72 So. 557 ("McClure" and "McLure" held idem sonans); Golson V. State (Ala. App.), 73 So. 753 ("Golson" and "Gholdston" held idem sonans).

56 Commonwealth v. Demuth, 12 Serg. & R. (Pa.) 389.

57 State V. Hughes, 1 Swan (Tenn.) 261; 1 Chitty Crim. L. 203; James v. State (Ala. App.), 78 So. 316; Putnam v. State (Ala. App.), 76 So. 408; State v. Kelly, 113 Miss. 461, 74 So. 325; Ah Poo v. Stevenson, 83 Ore. 340, 163 Pac. 822.

58 State v. Bishop, 15 Maine 122; State v. Hughes, 2 Har. & McH. (Md.) 479.

§ 903. Certainty.-There are three degrees of certainty recognized in pleading, viz: Certainty to a common intent, certainty to a certain intent in general, and certainty to a common intent in every particular. Clark says: "A pleading is certain to a common intent when it is clear enough according to reasonable intendment or construction, though not worded with absolute precision. Certainty to a certain intent in general means what upon a fair and reasonable construction may be called certain without recurring to possible facts which do not appear except by inference or argument. Certainty to a certain intent in every particular requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving nothing to be supplied by argument, inference or presumption, and no supposable answer wanting. The pleader must not only state the facts of his own case in the most precise way, but must add to them such facts as will anticipate the case of his adversary.' The first is the lowest degree of pleading allowed, and is allowed only in pleas in bar, and in certain parts of the indictment other than the charge. *The second degree is required in that part of the indictment which charges the offense. The third degree is required in pleas in abatement and other dilatory pleas."59 Every fact or circumstance which to any extent in law affects or enhances the punishment must be pleaded, specifically. So where an act is not inherently unlawful, but is made so by circumstances surrounding it, they must be alleged. The certainty should be sufficient to enable the court to say that if the facts pleaded are true, an offense has been committed, to know what punishment to impose, and to confine the proof to the offense charged; to give the defendant reasonable notice of the charge he must defend; to make a record of

59 Clark's Crim. Proc. 151. 60 Commonwealth v. Newburyport Bridge, 9 Pick. (Mass.) 142;

60

Commonwealth v. Whitney, 5 Gray (Mass.) 85; State v. Perry, 2 Bailey (S. Car.) 17.

what offense is charged, for purposes of review, and in order that acquittal or conviction may be pleaded in bar of a subsequent prosecution for the same offense.61

Facts which are particularly within the knowledge of the defendant need only be alleged with certainty to a common intent. The certainty required as to particulars is only such as the circumstances will permit, and unknown particulars need not be alleged, provided all the essentials of the offense are shown.63

§ 904. Particularity of description.-Merely to charge the accused generally with the commission of a certain kind of crime is not sufficient. The particular act or acts constituting the offense must be alleged, and not merely the conclusion that a crime was committed. Thus if a forgery is charged, the writing must be set forth,64 if a burglary, the house must be specifically described,65 if a larceny, the articles taken must be particularly described.66 For instance, in case of a theft of money it is not sufficient to set forth the total amount, but the particular bills or coins must be described. "Where the definition of an offense, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offense

61 Commonwealth v. Dean, 109 Mass. 349; Commonwealth v. Phillips, 16 Pick. (Mass.) 211; Davis v. State, 131 Ark. 542, 199 S. W. 902; State v. Atkins, 142 La. 862, 77 So. 771; City of Astoria v. Malone, 87 Ore. 88, 169 Pac. 749.

62 Rex v. Holland, 5 Term. Rep. 607; 2 Hawk. P. C., ch. 25, § 112; Allen v. Commonwealth, 178 Ky. 250, 198 S. W. 896; Davis v. State, 131 Ark. 542, 199 S. W. 902.

63 Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Cox v. People, 80 N. Y. 500.

64 Crossland v. State, 77 Ark. 537, 92 S. W. 776; Rooker v. State, 65 Ind. 86; State v. Cook, 52 Ind. 574; Davis v. State, 58 Nebr. 465, 78 N. W. 930; Rex v. Gilchrist, 2 Leach 753.

65 Thomas v. State, 97 Ala. 3, 12 So. 409; McElreath v. State, 55 Ga. 562; State v. Evans, 18 S. Car. 137.

66 People v. Machado, 130 Cal. xviii, 63 Pac. 66; Walthour v. State, 114 Ga. 75, 39 S. W. 872; Harrington v. State, 76 Ind. 112.

in the same generic terms as in the definition; but it must state the species, it must descend to particulars.' The nature of certain offenses, however, is such that they may be alleged generally, such as being a common scold,68 or a common prostitute, or a common seller of intoxicating liquors,70 since these indictments include a habitual succession of acts, and not particular instances. The act of a person by his agent may be averred to have been done by the principal.71 Only the facts should be alleged, and it is unnecessary to allege their legal effect. Generally speaking the facts may be pleaded either according to their legal import or their outward form, for example, what one does by his agent may be alleged to have been done by the principal himself, as in legal import it was, or according to the outward form of the transaction may be alleged as having been done by the agent for the principal.72 The charge must be stated positively, and if there is an attempt made to allege an essential element of the offense argumentatively, or by way of recital, the indictment is bad.73 This is merely another expression of the rule of certainty to every intent. Where the averment of one fact necessarily implies the exist

67 United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588. See also, United States v. Rintelen, 233 Fed. 793; State v. Duhon, 142 La. 919, 77 So. 791; Merchant v. State, 12 Okla. Cr. 360, 157 Pac. 272; State v. LaFlamme, 116 Maine 41, 99 Atl. 772; State v. Atkins, 142 La. 862, 77 So. 771; United States v. Bopp, 230 Fed. 723; 1 Arch. Crim. Pr. & Pl. 291.

68 Commonwealth v. Davis, 11 Pick. (Mass.) 432; 2 Hawk. P. C., ch. 25, § 59.

69 State v. Dowers, 45 N. H. 543; State v. Russell, 14 R. I. 506.

70 State v. Collins, 48 Maine 217; Commonwealth v. Odlin, 23 Pick. (Mass.) 275.

71 State v. Brown, 31 Maine 520; Commonwealth v. Bagley, 7 Pick. (Mass.) 279.

72 State v. Wentworth, 35 N. H. 442.

73 Comonwealth v. Shaw, 7 Metc. (Mass.) 52; Rex v. Knight, 1 Salk. 375; 2 Hawk. P. C., ch. 25, § 60; United States v. Welch, 243 Fed. 996; People v. Stoyan, 280 I11. 300, 117 N. E. 464; Ah Poo v. Stevenson, 83 Ore. 340, 163 Pac. 822; United States v. United States Brewers' Assn., 239 Fed. 163.

ence of another fact, the direct averment of the latter is not essential.74 It is not essential to aver that of which the court will take judicial notice,75 as for instance, to expressly state the statute upon which the indictment is based. Mere matters of evidence should not be alleged."

76

Any averment which is essential, however, to a proper description of the crime, must be contained in the indictment. Thus, in an indictment for conspiracy, the object of the unlawful agreement must be set forth specifically." And in an indictment for perjury, all the requisites of the crime must be averred.78

§ 905. Technical words.-Certain crimes can be properly described only by the use of technical words. For instance, any indictment for common law felony must allege that the act was committed feloniously.79 An indictment for burglary must allege that the act was committed "feloniously" and "burglariously."80 All indictments for treason must contain the word "traitorously."81 The term "forcibly" and "against the will" must appear in indictments for robbery.82 Nothing will take the place of the words "malice aforethought" and "murder" in murder indictments,83 and perhaps

74 State v. Smith, 106 N. Car. 653, 11 S. E. 166; Rex v. Tilley, 2 Leach 759.

75 Gady v. State, 83 Ala. 51, 3 So. 429; Damron v. State (Tex. Cr.), 27 S. W. 7; United States v. Scott, 248 Fed. 361; Meredith v. State, 79 Tex. Cr. 277, 184 S. W. 204; McLain v. State (Ala. App.) 72 So. 511.

76 Mead v. State, 53 N. J. L. 601, 23 Atl. 264; Rex v. Turner, 1 Strange 139.

77 United States v. Patterson, 55 Fed. 605; Lambert v. People, 9 Cow. (N. Y.) 578.

78 State v. Ammons, 3 Murph. (N. Car.) 123; Stedman's Case, 1 Cro. (Eliz.) 137.

79 Commonwealth v. Scannel, 11 Cush. (Mass.) 547; State v. Muir (Mo.), 186 S. W. 1047; 2 Hawk. P. C., ch. 26, § 55.

80 State v. McDonald, 9 W. Va. 456; Vaux v. Brooke, 2 Coke, pt. IV, 39, 40; 2 Hale P. C. 172, 184. 814 Bl. Comm. 307.

82 Collins v. People, 39 Ill. 233; Commonwealth v. Humphries, 7 Mass. 242.

83 McElroy v. State, 14 Tex. App. 235; Commonwealth v. Gibson, 2 Va. Cas. 70.