the word "ravish" is essential in an indictment for rape.84 If a statute in describing an offense which it creates uses the word "unlawfully" an indictment based on the statute is bad unless the word is used.85

In general, an indictment on a statute should use the word in the statute in defining the crime. Not all the above common law rules apply to indictments on statutes.

§ 906. Matters of defense.-Matters of defense need not be anticipated or negatived in the indictment.86 An indictment is adequate when the facts charged in it, if true, make out a prima facie crime.87 In an indictment for rape it is not essential to aver that the accused was more than fourteen years of age, 88 or in an indictment for disobeying an order of the court to aver that the order was not revoked.89 But where a statute creating an offense contains exceptions, and the exceptions are a part of the definition of the crime, these exceptions must be negatived.90

§ 907. Averment in the disjunctive.—An averment of an offense in the disjunctive makes the indictment bad for uncertainty,91 for example, that the defendant "burned or caused to be burned" a house,92 or "forged or caused to

84 Christian v. Commonwealth, 23 Grat. (Va.) 954; Howel v. Commonwealth, 5 Grat. (Va.) 664.

85 Commonwealth v. Twitchell, 4 Cush. (Mass.) 74; Rex v. Ryan, 2 Moody 15. But see State v. Briggs, 142 La. 785, 77 So. 599; City of Astoria v. Malone, 87 Ore. 88, 169 Pac. 749; Holsman v. United States, 248 Fed. 193, 160 C. C. A. 271; State v. Kerr, 117 Maine 254, 103 Atl. 585. 86 Commonwealth v. Hart, 11 Cush. (Mass.) 130; Rex v. Baxter, 5 Term Rep. 83, 2 Leach 660.

1993

be forged an instrument,' or "administered a drug or poison,"94 or that he "sold spirituous or intoxicating liquors."95 All spirituous liquors are intoxicating, but all intoxicating liquors are not spirituous. But if the terms used in the disjunctive are equivalent to or explanatory of each other the indictment is good.96 So where an indictment upon a statute charged the defendant with having "bank bills or promissory notes" payable to the bearer signed by the president of the bank, the term promissory note being used in the statute to explain the term "bank bill," meaning the same thing, the indictment was good.97 If a disjunctive statement is superfluous or immaterial, it will be rejected as mere surplusage.98

§ 908. Repugnancy.-If there is repugnancy in the material part of an indictment, the whole indictment is bad.99 But if the repugnancy is as to expressions, not stating essential elements of the crime, and the indictment is good without them, they are rejected as surplusage. An indictment for manslaughter which avers that the accused "wilfully" and with "culpable negligence" killed the deceased, is bad for repugnancy.2 Where terms can have more than one meaning, the meaning will be taken which will support the

93 People v. Tomlinson, 35 Cal. 503; Rex v. Stocker, 5 Mod. 137, 1 Salk. 342, 371.

94 State v. Drake, 30 N. J. L. 422; State v. Greene, 3 Heisk. (Tenn.) 131.

95 Commonwealth V. Grey, 2 Gray (Mass.) 501, 61 Am. Dec. 476; Morgan v. Commonwealth, 7 Grat. (Va.) 592.

96 Brown v. Commonwealth, 8 Mass. 59; Commonwealth v. Grey, 2 Gray (Mass.) 501, 61 Am. Dec. 476; State v. Gilbert, 13 Vt. 647.

97 Russell v. State, 71 Ala. 348; State v. Ellis, 4 Mo. 474.

981 Hale P. C. 535.

99 Commonwealth V. Lawless, 101 Mass. 32; State v. Haven, 59 Vt. 399, 9 Atl. 841; 2 Hawk. P. C., ch. 25, § 62.

1 State v. Kendall, 38 Nebr. 817, 57 N. W. 525; People v. Laurence, 137 N. Y. 517, 33 N. E. 547.

2 State v. Lockwood, 119 Mo. 463, 24 S. W. 1015.

indictment, and not that which would render it bad.3 If from the context it can be determined in what sense the words were intended to be used, ambiguity or repugnancy can not be said to exist.*

§ 909. Language used-Abbreviations.-The rule in this country and in England is that the indictment should be in the English language. In earlier times in England indictments and all legal proceedings were in the Latin language. English words of foreign origin are proper, such as alias, or Anno Domini.®

But where the indictment was for the forgery of a note in the German language, and the note was set out without translating it, the indictment was bad. Likewise the indictment was bad where a Chinese lottery ticket was set out by means of a photograph of the original, and no translation was made.8

In England indictments are required by statute to be in words at length, and neither abbreviations or figures may be used in the indictment proper. There the only exception to the rule is where a fac simile of a document must be set out in the indictment, as in case of forgery.10 In this country the rule is not so strict, and it is held that the

3 Commonwealth V. Butler, 1 Allen (Mass.) 4; Rex v. Wright, 1 Ad. & El. 434.

4 Commonwealth v. Kelly, 123 Mass. 417; Jeffries v. Commonwealth, 12 Allen (Mass.) 145.

51 Bish. New Crim. Proc., §§ 341, 342.

6 Kennedy v. People, 39 N. Y. 245, 5 Abb. Pr. (N. S.) 147; State v. Gilbert, 13 Vt. 647.

7 See Beyerline v. State, 147 Ind. 25, 45 N. E. 772.

8 People v. Ah Sum, 92 Cal. 648, 28 Pac. 680.

91 Chitty Crim. L. 176.

10 Rex v. Goldstein, 7 Moore 1, 3 Brod. & B. 201, Russ. & Ry. 473.

ordinary abbreviations may be used for dates,11 and, perhaps in some other cases, if the abbreviations used are those of which there is common knowledge as & for and.12

If abbreviations peculiar to the arts or sciences or to certain businesses are used, they must be fully explained in words.13

errors,

§ 910. Clerical errors.-Mere clerical114 or grammatical 15 incorrect spelling, 16 or wrong punctuation1 do not render an indictment bad, if the meaning intended is plain. The rule is otherwise if the meaning is changed or destroyed, or an essential word is omitted.18 Some decisions on this point would be considered today as very technical.

§ 911. Videlicet - Inducement - Innuendo. — Often in framing indictments, allegations of time, place, number, etc., are set forth by means of a videlicet or scilicet, usually following the words "to-wit" or "namely," explaining and making certain that which was before alleged generally. If the averment under a scilicet is immaterial, it may be rejected as surplusage, but if material, the proof must correspond to the

11 State v. Reed, 35 Maine 489, 58 Am. Dec. 727; Commonwealth v. Clark, 4 Cush. (Mass.) 596.

12 Pickens v. State, 58 Ala. 364; State v. McPherson, 114 Iowa 492, 87 N. W. 421.

13 State v. Brown, 51 Conn. 1; Stukeley v. Butler, Hob. 172.

14 State v. Raymond, 20 Iowa 582; Ewing v. State, 1 Tex. App. 362; Dupree v. State, 80 Tex. Cr. 211, 190 S. W. 181; Lopez v. State (Ariz.), 161 Pac. 874.

15 State v. Hedge, 6 Ind. 330; State v. Raymond, 20 Iowa 582; Perdue v. Commonwealth, 96 Pa. St. 311; Ewing v. State, 1 Tex.

App. 362; State v. Kruppa (Iowa), 158 N. W. 401.

16 Peacock v. State, 174 Ind. 185, 91 N. E. 597; Johns v. State, 88 Nebr. 145, 129 N. W. 247.

17 Fuller v. State, 117 Ala. 200, 23 So. 688; Ward v. State, 50 Ala. 120.

18 People v. St. Clair, 55 Cal. 524; State v. Chicago, B. & P. R. Co., 63 Iowa 508, 19 N. W. 299; State v. Atkins, 142 La. 862, 77 So. 771 (an allegation charging that defendant did feloniously "shoow" A with intent to kill is not sufficient to authorize a conviction of shooting with intent to kill).

allegation under the scilicet.19 An inducement is a statement of preliminary facts not a part of the description of the offense, but which are necessary to show that the offense charged is criminal, and need be stated only with certainty to a common intent,20 for instance, in an indictment for libel where the writing is not necessarily libelous, the facts must be stated which make it libelous.21

If in cases of libel the matter alleged is not obviously libelous, or plainly applicable to the party alleged to have been libeled, its real meaning must be explained by what is called an innuendo, for the facts must be stated with legal precision in order to be brought before the jury.22 An innuendo is merely matter explanatory of what has already been alleged, in order to relieve it from ambiguity, but the innuendo can not change or alter the sense of the other averments.23

§ 912. Written instruments.-Where, as in cases of accusations of libel, forgery, or writing threatening letters, a written instrument is a part of the gist of the crime charged, it should be set out in its exact words,24 or the indictment will be bad. This is important for the court to see whether or not an offense has been committed, and merely to set forth its substance, or the legal conclusion of the pleader as to its effect is not sufficient.

19 Paine v, Fox, 16 Mass. 129; Hastings V. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420; State v. Heck, 23 Minn. 549; State v. Haney, 1 Hawks. (N. Car.) 460.

20 Commonwealth v. Reynolds, 14 Gray (Mass.) 87, 74 Am. Dec. 665; Reg. v. Wyatt, 2 Ld. Raym. 1189.

21 People v. Collins, 102 Cal. 345, 36 Pac. 669; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548.

22 People v. Collins, 102 Cal. 345, 36 Pac. 669; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548; 3 Chitty Crim. L. 875.

23 Goodrich v. Hooper, 97 Mass. 1, 93 Am. Dec. 49; Commonwealth v. Keenan, 67 Pa. St. 203.

24 Rooker v. State, 65 Ind. 86; Commonwealth v. Wright, 1 Cush. (Mass.) 46; State v. Wheeler, 19 Minn. 98; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169.