In

not necessary to allege the means of accomplishment.69 the class of crimes where the offense consists in the character acquired by the accused because of continuance in wrong doing, as in an indictment for being a common barrator or a common night-walker or a common scold, the particular acts committed need not be stated.70 Where the charge is false pretense, the particular acts must be stated.71 Where the offense charged includes an intent to commit another crime, it is not essential to state the particulars of the latter offense.72 Thus in an indictment for conspiracy to cheat and defraud, it is sufficient to describe the latter offense merely as "to cheat and defraud of his goods and chattels."73

§ 926. Indictments on statutes.-Generally the rules applicable to indictments at common law apply to the indictments on statutes. An indictment on a statute must purport to be based upon the statute, which is usually done by the use in the conclusion of the indictment of the words "contrary to the form of the statute in such cases made and provided." The statute itself need not be recited,74 nor is it necessary to indicate in the indictment the particular statute or section of the statute on which it is founded.75 What is essential is to state all the facts and circumstances which go to make up the offense as defined in the statute, and in doing so it is better to use the technical term employed in

69 See People v. Myers, 20 Cal. 76; State v. Bowles, 146 Mo. 6, 47 S. W. 892, 69 Am. St. 598; Lee v. State, 44 Tex. Cr. 460, 72 S. W. 195.

70 Commonwealth V. Pray, 13 Pick. (Mass.) 359; Commonwealth v. Davis, 11 Pick. (Mass.) 432; Lambert v. People, 9 Cow. (N. Y.) 578; State v. Russell, 14 R. I. 506; 1 Chitty Crim. L. 230.

71 Rex v. Perrott, 2 Maule & S. 379.

72 Rex v. Perrott, 2 Maule & S. 379.

73 Rex v. Gill, 2 B. & Ald. 204; 2 Bish. New Crim. L., § 200.

74 Commonwealth v. Griffin, 21 Pick. (Mass.) 523; People v. Walbridge, 6 Cow. (N. Y.) 512.

75 Commonwealth v. Thompson, 108 Mass. 461; Commonwealth v. Griffin, 21 Pick. (Mass.) 523.

the statute and follow its language.76 But if the statute in defining an offense uses general terms, the indictment must enumerate the essential particulars;77 as where a statute punishes a person "who shall act as the agent of any other person, or persons, for the sale of intoxicating liquors," the indictment must name the person for whom the defendant acted;78 an indictment for obtaining money by false tokens or pretenses must state the particular false tokens or pretenses used.79 An indictment under a statute for rape, it is held, must use the word "ravished" used in the statute, and if the statute uses the term "unlawfully" in defining the defense it must be used in the indictment.80 If the word used in the indictment means all that is meant by the word in the statute, and more, as "malicious" used where the statute statute uses uses "willful,"81 or "unlawfully" or "feloniously" where the statute uses "falsely,"82 or "feloniously" where the statute uses "unlawfully,"83 the indictment is good. If a statute merely creates a crime without defining it, as if it forbids something by its common law name, resort must be had to the common law for the description of the crime.84 Generally speaking, the indictment must employ enough of the substantial words of the statute to enable the court to ascertain on what statute it is founded; it must also have such other statutory words as are, alone, or in conjunction with other words, necessary

76 United States V. Cook, 17 Wall. (U. S.) 168, 21 L. ed. 538; State v. Cady, 47 Conn. 44; Brown v. Commonwealth, 8 Mass. 59; Commonwealth V. Twitchell, 4 Cush. (Mass.) 74.

77 United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Commonwealth v. Chase, 125 Mass. 202. 78 State v. Higgins, 53 Vt. 191. 79 Rex V. Munoz, 2 Strange 1127; 2 East P. C. 837.

to completely describe the offense; or the pleader may use words equivalent to the statutory words or words more than their equivalents, if they include the full meaning of the words used in the statute.85 As regards statutory crimes, a particular description of the acts constituting the offense is not essential. An averment that the acts prohibited were committed is usually sufficient.86 Thus, in an indictment for unlawfully practicing a certain profession without a license, or for participating in a prize fight, an averment of the doing of the thing prohibited, without stating the particular acts, is sufficient, because the word indicates clearly enough the character of the act. There are a few crimes, however, including false pretenses, bribery, and malicious mischief, which constitute exceptions to the foregoing rule. In an indictment for either of them the particular acts committed must be alleged. It also has been held that in an indictment for distributing obscene literature, the mode of doing the act must be alleged.

§ 927. What statutory exceptions must be negatived.In some cases it is necessary to negative exceptions or provisos in statutes and in other cases it is not. As a general rule, where the exception forms a part of the description of the offense, or material qualification of the language used in defining or creating the offense, it must be negatived; otherwise, not.87 Matters of defense need not be nega

85 Commonwealth v. Parker, 117 Mass. 112; Tully v. People, 67 N.

Y. 15.

86 Commonwealth v. Ashley, 2 Gray (Mass.) 356; 2 Hawk. P. C., ch. 25, § 111.

87 Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Commonwealth v. Maxwell, 2 Pick.

V.

(Mass.) 139; Commonwealth Hart, 11 Cush. (Mass.) 130; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754; People v. Kenyon, 201 Mich. 647, 167 N. W. 997; State v. Perello, 102 Kans. 695, 171 Pac. 630; State v. Burns (Iowa), 165 N. W. 346; Cochran v. Commonwealth (Va.), 94 S. E. 329.

tived, 88 It also has been stated frequently that where the exception is in the enacting clause of the statute it should be negatived and not otherwise.89 According to this rule, if the exception is contained in a subsequent clause of the statute, or in a subsequent statute, it is not essential to negative it.90 This rule, however, is misleading. Thus, a proviso in a subsequent clause may be referred to in such a way as to make it descriptive of the offense charged; and in such case the proviso must be negatived.91 It is to be observed, therefore, that the other rule stated above is the safer one to follow. A negative not required by law may be rejected as surplusage, and a negative averment need not be so minute, or so nearly in the statutory words, as must an affirmative one; but any negation in general terms, covering the entire substance of the matter will suffice.92

§ 928. Conclusion.-The third part of the indictment is the conclusion. Without a formal conclusion, unless statute provides otherwise, an indictment is bad.93 In most states a form of conclusion is prescribed by constitution or statute and must be followed.94 The form usually used is, “against

88 United States V. Cook, 17 Wall. (U. S.) 168, 21 L. ed. 538; Thompson v. State, 54 Miss. 740; State v. Fuller, 33 N. H. 259; Fleming v. People, 27 N. Y. 329; Grisson v. Commonwealth, 181 Ky. 189, 203 S. W. 1075; Quaternick v. State (Tex. Cr.), 204 S. W. 328; State v. Evertz (Mo. App.), 202 S. W. 614; State v. Wild (Mo. App.), 202 S. W. 613; United States v. Scott, 248 Fed. 361; People v. Kesseling (Cal. App.), 170 Pac. 627; Commonwealth v. Gallatta, 228 Mass. 308, 117 N. E. 343; United States v. O'Hara, 242 Fed. 749; State v. Hopkins, 54 Mont. 52, 166 Pac. 304.

the peace and dignity of the state," or in some jurisdictions "the people of the state," or "common law" is used instead of the word "state." In England the form is "against the peace of the King." The words "and dignity" are not necessary.95 If the indictment is upon a statute, the conclusion must contain the words "against the form of the statute," where the statute creates an offense which did not exist at common law or enlarges a common-law offense; but the conclusion "contra formam statuti" is not essential where the statute merely declares the common law, fixes the punishment of a common-law crime, or deprives the defendant of some benefit to which he was entitled at common law or changes the rule of evidence.97. In England and some of the American states it is provided by statute that no indictment shall be insufficient because of the omission of the conclusion.98 In other states, it has been provided that indictments shall not be invalidated by formal defects, and it has been held that the conclusion of an indictment is "a mere rhetorical flourish adding nothing to the substance of the indictment."99 When an indictment contains more than one count, each must have an appropriate conclusion.1 Surplusage may be rejected to make a conclusion good, and generally a substantial compliance with the formula is sufficient.3

V. Caldwell,

95 Commonwealth 14 Mass. 330; 2 Hale P. C. 188.

96 Commonwealth v. Dennis, 105 Mass. 162; Commonwealth V. Northampton, 21 Mass. 116; State v. Johnson, 1 Walk. (Miss.) 392; 2 Hawk. P. C., ch. 25, § 116.

97 People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197; Chiles v. Commonwealth, 2 Va. Cas. 260; 2 Hale, P. C. 190; 2 Hawk. P. C., ch. 46, § 43.

98 Commonwealth v. Kennedy, 15 B. Mon. (Ky.) 531; State v. Dorr, 82 Maine 341, 19 Atl. 861.

99 Nichols v. State, 35 Wis. 308. 1 McGuire v. State, 37 Ala. 161; State v. Johnson, 1 Walk (Miss.) 392; Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745.

2 State v. Allen, 8 W. Va. 680. 3 State v. Waters, 1 Mo. App. 7; State v. Mason, 54 S. Car. 240, 32 S. E. 357.