英文法律词典 I-30

INDICIA, civil law. Signs, marks. Example: in replevin, the chattel¹ must possess indicia, or earmarks, by which it can be distinguished² from all others of the same description. 4 Bouv. Inst. n. 3556. This term is very nearly synonymous with the common law phrase, "circumstantial evidence." It was used to designate the facts giving rise to the indirect inference, rather than the inference itself; as, for example, the possession of goods recently stolen, vicinity to the scene of the crime, sudden change in circumstances or conduct, &c. Mascardus, de Prob. lib. 1, quaest. 15; Dall. Dict. Compet«nce Criminelle, 92, 415; Morin, Dict. du Droit Criminal, mots Accusation³, Chambre du Conseil.

2. Indicia may be defined to be conjectures⁴, which result from circumstances not absolutely necessary and certain, but merely probable, and which may turn out not to be true, though they have the appearance of truth. Denisart, mot Indices. See Best on Pres. 13, note f.

3. However numerous indicia may be, they only show that a thing may be, not that it has been. An indicium, can have effect only when a connexion is essentially⁵ necessary with the principal. Effects are known by their causes, but only when the effects can arise only from the causes to which they. are attributed. When several causes may have produced one and the same effect, it is, therefore, unreasonable⁶ to attribute it to any one of such causes. A combination of circumstances sometimes conspire⁷ against an innocent person, and, like mute witnesses, depose⁸ against him. There is danger in such cases, that a jury may be misled; their minds prejudiced, their indignation unduly⁹ excited, or their zeal¹⁰ seduced¹¹. Under impressions thus produced, they may forget their true relation to the accused, and condemn¹² a man whom they would have acquitted¹³ had they required that proof and certainty which the law demands. See D'Aguesseau, Oeuvres, vol. xiii. p. 243. See Circumstances.

INDICTED¹⁴, practice. When a man is accused by a bill of indictment¹⁵ preferred by a grand jury, he is said to be indicted.

INDICTION, computation of time. An indiction contained a space of fifteen years.

2. It was used in dating at Rome and in England. It began at the dismission of the Nicene council, A. D. 312. The first year was reckoned the first of the first indiction, the second, the third, &c., till fifteen years afterwards. The sixteenth year was the first year of the second indiction, the thirty-first year was the first ar of the third indiction, &c.

INDICTMENT, crim. law, practice. A written accusation of one or more persons of a crime or misdemeanor, presented to, and preferred upon oath or affirmation, by a grand jury legally convoked¹⁶. 4 Bl. Com. 299; Co. Litt. 126; 2 Hale, 152; Bac. Ab. h. t.; Com. Dig. h. t. A; 1 Chit. Cr. L. 168.

2. This word, indictment, is said to be derived¹⁷ from the old French word inditer, which signifies to indicate; to show, or point out. Its object is to indicate the offence charged against the accused. Rey, des Inst. l'Angl. tome 2, p. 347.

3. To render an indictment valid¹⁸, there are certain essential and formal requisites¹⁹. The essential requisites are, 1st. That the indictment be presented to some court having jurisdiction²⁰. of the offence stated therein. 2d. That it appear to have been found by the grand jury of the proper county or district. 3d. That the indictment be found a true bill, and signed by the foreman of the grand jury. 4th. That it be framed with sufficient certainty; for this purpose the charge must contain a certain description of the crime or misdemeanor, of which the defendant²¹ is accused, and a statement of the facts by which it is constituted, so as to identify the accusation. Cowp. 682, 3; 2 Hale, 167; 1 Binn. R. 201; 3 Binn. R; 533; 1 P. A. Bro. R. 360; 6 S. & R. 398 4 Serg. & Rawle, 194; 4 Bl. Com. 301; Yeates, R. 407; 4 Cranch, R. 167. 5th. The indictment must be in the English language. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue, and then translated, showing its application. 6 T. R. 162.

4. Secondly²², formal requisites are, 1st. The venue²³, which, at common law should always be laid in the county where the offence has been committed, although the charge is in its nature transitory, as a battery. Hawk²⁴. B. 2, c. 25, s. 35. The venue is stated in the margin²⁵ thus, "City and county of _____ to wit." 2d. The presentment, which must be in the present tense, and is usually expressed by the following formula, "the grand inquest of the commonwealth²⁶ of ______ inquiring for the city and county aforesaid, upon their oaths and affirmations present." See, as to the venue, 1 Pike, R. 171; 9 Yerg. 357. 3d. The name and addition of the defendant; but in case an error has been made in this respect, it is cured by the plea of the defendant. Bac. Ab. Misnomer²⁷, B; Indictment, G 2; 2 Hale, 175; 1 Chit. Pr. 202. 4th. The names of third persons, when they must be necessarily mentioned in the indictment, should be stated with certainty to a common intent, so as sufficiently²⁸ to inform the defendant who are his accusers. When, however, the names of third persons cannot be ascertained²⁹, it is sufficient, in some cases, to state " a certain person or persons to the jurors aforesaid unknown." Hawk. B. 2, c. 25, s. 71; 2 East, P. C. 651, 781; 2 Hale, 181; Plowd. 85; Dyer, 97, 286; 8 C. & P. 773. See Unknown. 5th. The time when the offence was committed, should in general be stated to be on a specific year and day. In some offences, as in perjury³⁰, the day must be precisely³¹ stated; 2 Wash. C. C. Rep. 328; but although it is necessary that a day certain should be laid in the indictment, yet, in general, the prosecutor³² may give evidence of an offence committed on any other day previous to the finding of the, indictment. 5 Serg. & Rawle, 316. Vide 11 Serg. & Rawle, 177; 1 Chit. Cr. Law, 217, 224; 1 Ch. Pl. Index, tit. Time. See 17 Wend. 475; 2 Dev. 567; 5 How. Mis. 14; 4 Dana. 496; C. & N. 369; 1 Hawks³³, 460. 6th. The offence should be properly described. This is done by stating the substantial circumstances necessary to show the natue of the crime and, next, the formal allegations and terms of art required by law. 1. As to the substantial circumstances. The whole of the facts of the case necessary to make it appear judicially³⁴ to the court that the indictors have gone upon sufficient premises³⁵, should be set forth³⁶; but there should be no unnecessary matter or any thing which on its face makes the indictment repugnant, inconsistent, or absurd. Hale, 183; Hawk. B. 2, c. 25, s. 57; Ab. h. t. G 1; Com. Dig. h. t. G 3; 2 Leach³⁷, 660; 2 Str. 1226. All indictments³⁸ ought to charge a man with a particular offence, and not with being an offender³⁹ in general: to this rule there are some exceptions, as indictments against a common barrator, a common scold, and the keeper of a common bawdy⁴⁰ house; such persons may be indicted by these general words. 1 Chit. Cr. Law, 230, and the authorities there cited. The offence must not be stated in the disjunctive, so as to leave it uncertain on what it is intended to rely as an accusation; as, that the defendant erected⁴¹ or caused to be. erected a nuisance. 2 Str. 900; 1 Chit. Cr. Law, 236.

2. There are certain terms of art used, so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of filling the same office: such, for example, as traitorously⁴², (q. v.) in treason; feloniously, (q. v.) in felony; burglariously, (q. v.) in burglary; maim⁴³, (q. v.) in mayhem, &c. 7th. The conclusion of the indictment should conform to the provision of the constitution of the state on the subject, where there is such provision; as in Pennsylvania, Const. art. V., s. 11, which provides, that " all prosecutions⁴⁴ shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude against the peace and dignity of the same." As to the necessity and propriety⁴⁵ of having several counts in an indictment, vide 1 Chit. Cr. Law, 248; as to. joinder of several offences in the same indictment, vide 1 Chit. Cr. Law, 253; Arch. Cr. Pl. 60; several defendants⁴⁶ may in some cases be joined in the same indictment. Id. 255; Arch. Cr. Pl. 59. When an indictment may be amended⁴⁷, see Id. 297 .Stark⁴⁸. Cr. Pl. 286; or quashed, Id. 298 Stark. Cr. Pl. 831; Arch. Cr. 66. Vide; generally, Arch. Cr. Pl. B. 1, part 1, c. 1; p. 1 to 68; Stark. Cr. Pl. 1 to 336; 1 Chit. Cr. Law, 168 to 304; Com. Dig. h. t.: Vin. Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Nels. Ab. h. t.; Burn's Just. h. t.; Russ. on Cr. Index, h. t.,

5. By the Constitution of the United States, Amendm. art. 5, no person shall be held to answer for a capital, or otherwise infamous⁴⁹ crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval⁵⁰ forces, or in the militia⁵¹, when in actual service in time of war, or public danger.