113. Indictment against several persons, for piratically taking and carrying away a ship, with its tuckle, &c. and certain goods on board the same (t).

Admiralty (u) of England. With force and arms, upon the high seas (x), in a certain place, distant about ten leagues from Cutsheen, in the East Indies, and within the jurisdiction (x) of the admiralty of England, did piratically and feloniously (x) set upon, board, break, and enter a certain merchant ship, called The Quedagh Merchant, then being a ship of certain persons (to the jurors aforesaid as yet unknown), and then and there piratically and feloniously did assault certain mariners (whose names to the jurors aforesaid are also unknown) in the same ship, and in the peace of God and our said sovereign lord the king then and there being, and did then and there, upon the high sea aforesaid, in the place aforesaid, and within the jurisdiction aforesaid, piratically and feloniously put the said mariners (to the jurors aforesaid as yet unknown), so being in the same ship, in great bodily fear and danger of their lives; and the said merchant ship, called The Quedagh Merchant, and the apparel and tackle of the same ship, of the value of four hundred pounds, of lawful money of Great Britain, together with seventy chests of opium, of the value of fourteen hundred pounds, of like lawful money, then being in and on board the same ship, of the goods and chattels of certain persons (to the jurors aforesaid as yet unknown), and then and there, upon the high sea aforesaid, in the place aforesaid, and within the jurisdiction aforesaid, being under the care and custody, and in the pos

such lead, &c. knowing the
same to have been stolen, shall,
upon conviction, suffer the
same pains and penalties as are
inflicted upon persons receiving
any stolen goods or chattels.
And by the same statute it is
also enacted, that if the prin-
cipals or their aiders, so com-
mitted or transported, shall
voluutarily escape or
or break
prison, or return from trans-

portation before, &c. they shall, upon conviction, suffer death, without benefit of clergy.

(t) This was the indictment used against Kidd and others, 5 St. Tr. 287.

(u) As to the trial see p. 15.

(x) These averments are essential, see p. 19. 73. 1 Haw. c. 37. s. 6.10. East. P. C.805. 3 Ins. 112.

session of the said mariners, (to the jurors aforesaid as yet unknown,) they the said William Kidd, &c. (the names of all the pirates) with force and arms, from the care, custody, and possession of the said mariners (to the jurors aforesaid as yet unknown) then and there, to wit, upon the high sea aforesaid, in the place aforesaid, and within the jurisdiction aforesaid, piratically, feloniously, and against the will of the said last-mentioned mariners, did steal, take, and run away with, against the peace of our said lord the king, his crown and dignity (y).

114. Indictment against an accessory, before the fact, to a felony.

After charging the principal felon, proceed thus, And the jurors aforesaid, upon their oath aforesaid, do further present, that L. M. late of, &c. labourer, before the committing the said felony and murder, (or burglary, &c. as the case is,) in form aforesaid, to wit, on, &c. with force and arms, at, &c. did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command (2) the said A. B. to do and commit the said felony and

in manner and form aforesaid, against the peace, &c.

115. Indictment against an accessory for receiving the principal felon.

And the jurors aforesaid, upon their oath aforesaid, do further present, that L. M. late of, &c. labourer, well

(y) By the st. 32 G. 2. c. 25. s. 20. a session of oyer and terminer and gaol delivery for the trial of offences committed upon the high seas, within the jurisdiction of the admiralty of England, shall be holden twice at least in every year, viz. in March and October, at the Old Bailey, except when sessions of over and terminer and gaol delivery for London and Middlesex, shall be there holden, or in such other places in England as the lord high admiral, &c. shall, in writing

under his hand directed to the judge of the court of admiralty, appoint.

In prosecutions of this nature, the indictment is first found by a grand jury of twelve men, and afterwards tried by another jury, as at common law. 4 Bl. Comm. 269. 3 Ins. 114. East. P. C. 812. See the stat. 28 H. 8. c. 15. and the statutes dependent upon it, p. 15, 16, 17.

(2) Vide supra, p. 130, 131, 132. and pr. 23.

knowing the said A. B. to have done and committed the said felony and burglary (according to the fact) in form aforesaid, afterwards, to wit, on, &c. with force and arms, at, &c. him the said A. B. did feloniously receive, harbour, and maintain, against the peace, &c.

116. Indictment against an accessory for receiving stolen goods.

And the jurors aforesaid, upon their oath aforesaid, do further present, that L. M. late of, &c. labourer, afterwards, to wit, on, &c. with force and arms, at, &c.* one silver watch, one gold ring, &c. (a) being parcel of the goods and chattels so as atoresaid feloniously and burglariously stolen, taken, and carried away, feloniously did receive and have (he the said L. M. then and there well knowing the said goods and chattels last mentioned to have been feloniously and burglariously stolen, taken, and carried away,) against the form (b), &c. and against the peace, &c.

117. Indictment against an accessory for receiving goods in one county, the principal having been convicted in another county (c).

Middlesex. The jurors for our lord the king upon their oath present, that at the delivery of the gaol of our lord the king of his county of Surrey, holden at Kingston upon Thames, in and for the county aforesaid, on, &c. before William earl of Mansfield, lord chief justice of our lord the king, assigned to hold pleas in the court

(a) If he received the whole of the goods alleged to have been stolen, merely insert "the said goods and chattels." The description of the property alleged to be received, should agree with that charged to have been stolen; but it is sufficient that it appear to be in fact the same, though it pass under a different denomination, as if the principal

be charged with stealing a live sheep, and the defendant with receiving 20lb. of mutton, part of the goods stolen. Cowell and Green's case, East. P. C. 381. and see tit. Surplusage, p. 235.

(b) 3 W. & M. c. 9. s. 4. See p. 460.

(c) This indictment is authorized by the st. 2 and 3 E. 6. c. 24. see p. 7.

of our said lord the king, before the king himself, and Sir William Henry Ashhurst, knight, one other of the justices of our said lord the king, assigned to hold pleas in the court of our said lord the king, before the king him self, then justices of our said lord the king, assigned to deliver the said gaol of the prisoners therein being, M. T. late of the same parish of Lambeth, in the said county of Surrey, labourer, was duly convicted (d); for that he the said M. T. &c. on, &c. with force and arms, at, &c. seventeen yards of linen cloth, of the value of thirty shillings, of the goods and chattels of one T. W. then and there being found, feloniously did steal, take, and carry away, against the peace of our said lord the king, his crown and dignity, as by the record thereof remaining filed in the said court of gaol delivery, may more fully and at large appear. And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B. late of, &c. in the county of Middiesex, labourer, afterwards, to wit, on, &c. with force and arms, at, &c. (and then proceed as in pr. 116 from the *.)

118. Indictment for a misdemeanor, in receiving stolen goods (e).

(Comm. as in pr. 1.) One silver tankard, of the value

(d) It is not necessary to allege, that the principal was attainted. Hyam's case, East. P. C. 782.; as to this form of indictment, see p. 157. Qu. whether it ought not expressly to aver the commission of the felony in the first county. See p. 157. 130. Lord Sanchar's case, 9 Co. 114.

(e) See the different statutes, p. 460. n. (k).

If the prisoner can be indicted as an accessory to a felony, he ought not to be tried for a misdemeanor, for the prosecutor has no election. See Fost. 374. and per Thomp

son, Baron, Lanc. Lent Ass. 1813. contrary to what is said in the case of R. v. Pollard and Taylor, 2 Ld. Ray: 1730. and in Jonathan Wild's case, East. P. C. 746. where, upon an indictment under the stat. 5 Ann. for a misdemeanor, it appeared that the principal had been convicted, it was holden, that the defendant ought to be acquitted. In Wilkes's case, Leach, 121. East. P. C. 746. it appeared, that the prosecutor might at one time have taken the principal into custody, but had neglected so to do, and that he could not after

of six pounds (f), of the goods and chattels of one C. D. by one E. F. (g) then lately before (h) feloniously stolen of the said E. F. unlawfully, unjustly, and for the sake of wicked gain did receive and have, (the said A. B. then and there well knowing the same to have been feloniously stolen,) against the form of the statute (i), &c. and against the peace, &c.

119. Indictment against two for unlawfully receiving stolen lead, under the stat. 29 G. 2. c. 30. s. 1. See p. 460, note (k).

(Commencement as in pr. 1.) Unlawfully and unjustly did buy and receive, and each of them did buy and receive, ten pounds weight of lead, of the value of two shillings, of the goods and chattels of one E. F. then lately before feloniously stolen, taken, and carried away by one G. H. they the said A. B. and C. D. then and there well knowing the same to be stolen and unlawfully come by, against the form of the statute, &c. and against the peace, &c. (Second count.) to wit, on, &c. with force and arms, at, &c. unlawfully and unjustly, and in a clandestine manner, that is to say, by, (set out the manner,) did buy and receive, from the aforesaid G. H. other ten pounds weight of lead, of the value of two shillings, of the goods

wards be met with: the defendant was indicted under the stat. 5 Ann. for a misdemeanor, and a majority of the judges were of opinion, since the conviction was proper; that the word cannot, in the statute, relates to the time of the prosecution. But by the 22 G. 3. c. 58. the receiver may be prosecuted for the misdemeanor, whether the principal be amenable to justice or not. It never has been held necessary to allege in the indictment, that the principal could not be taken, &c. Baxter's case, 5 T. R. 83. 2 Ld. Ray. 1370. East. P. C. 781. or that he had not been convicted, see p. 28. 160.

(f) An indictment, under the stat. 22 G. 2. c. 58. s. 1. against the receiver for a misdemeanor, will lie, though the felony amount to petit larciny only. Baxter's case, 5 T. R. 83. Leach, 660.

(g) The name of the principal need not be stated in an indictment against the receiver for a misdemeanor. See p. 157. and Thomas's case, East. P. C. 781. Baxter's case, 5 T. R. 83. but if known ought to he stated, East. P. C. 783.

(h) It is unnecessary to allege the stealing of the goods, with time or place. R. v. Stott, East. P. C. 780.

(i) See the next note.