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Indictment

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INDICTMENT, in law, a formal accusation in writing laid before a grand jury and by them presented on oath to a court of competent jurisdiction. In England the accusation is drawn up in the form of a "bill" of indictment, prepared by the officer of the court or the legal adviser of the prosecution, engrossed on 'parchment or durable paper, and sent before the grand jury. The grand jury hear in private the witnesses in support of the accusa tion (whose names are endorsed on the back of the bill), and, if satisfied that a prima facie case has been made out, find the bill to be a true bill and return it to the court as such. If otherwise, the jury ignore the bill and return to the court that they find "no true bill." Indictments differ from presentments, which are made by the grand jury on their own motion and their own knowledge; and from informations, which are instituted on the suggestion of a public officer without the intervention of a grand jury.

An indictment lies for "all treasons and felonies, for misprision of treasons and felonies and for all misdemeanours of a public nature at common law." And if a statute prohibit a matter of public grievance or command a matter of public convenience all acts or omissions in disobedience to the command or prohibi tion of the statute are treated as misdemeanours at common law, and unless the statute otherwise provides are punishable on indict ment. In other words, the ordinary common law remedy in re spect of criminal offences is by indictment of the accused and trial before a petty jury; and except in the case of informations for misdemeanour and summary proceedings by a court of record for "contempt of court" it is the only remedy, except where a statute creates another remedy, e.g., by trial before a court of summary jurisdiction.

Until the mitigation of the draconic severity of the English law in the early part of the i 9th century, little or no power existed of amending defective statements or indictments, and the courts in f avorem vitae insisted strictly on accurate pleading and on proof of the offences exactly as charged. Since 1827 numerous enactments have been passed for getting rid of these technicalities, which led to undeserved acquittals, and from 1851 the courts had power to disregard technical objections to the form of indictment and to amend in matters not essential in case of variance between the indictment and the evidence.

The difficulties and technicalities of criminal pleading were finally dealt with by the Indictments Act 1915, which made rules as to indictments and set up a rule committee under the lord chief justice having power to vary or annul the rules in the statute and make further rules germane to the subject.

By that act it was provided (s. 3) that "every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable inforrnation as to the nature of the charge." Again, by s. 4, "subject to the provisions of the rules under this act, charges for more than one felony or for more than one mis demeanour, and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is tried together with any misdemeanour, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies." Power is given before or at any stage of the trial to amend a defective indictment, if it can be done without injustice; to order the separate trial of separate offences if the accused would be prejudiced or embarrassed; or to postpone a trial for amendment or separate hearing. By the Vexatious Indictment Act, (save as therein excepted), no bill of indictment can be pre sented to the grand jury for the numerous offences to which it applies, unless (a) the person presenting it has been bound by recognizance to prosecute or give evidence ; or (b) the accused has been committed to or detained in custody or has been bound by recognizance to answer the indictment; or (c) unless it is pre ferred by the direction or consent of certain high legal authori ties. The act has since been extended to other offences.

In Scotland the terms indictment or criminal letters are used to express the acte d'accusation. But except in the case of high treason there is no grand jury, and the indictment is filed like an English criminal information by the lord advocate or one of his deputies : and it is only by order of the court of justiciary that a prosecution can be instituted without the general assent of the lord advocate. By the Criminal Procedure Scotland Act 1887 the form of Scots indictments is much simplified. (X.) United States.—As a general rule, the indictment must charge but one crime and in one form, but the crime may be charged in separate counts to have been committed in a different manner or means; and where the acts complained of may constitute different crimes such crimes may also be charged in separate counts.

The form of the indictment varies more or less in the dif ferent States, because of particular constitutional or statutory provisions. In many States the form is prescribed by statute, the obj act of which is to simplify the form and to do away with the strictness formerly required by law.

Since an indictment is a finding by the grand jury upon oath, and depends, for its validity, upon that fact among others, it could not, until recent times, be amended by the court without the concurrence of the grand jury that presented it. Under modern statutes, however, mistakes in the statement of time or in the name or description of any place, person or thing, may, in the discretion of the court, be cured by amendment at the trial upon such terms as the court may deem reasonable.

So, under modern statutes, an indictment is good if the crime charged is stated with such a degree of certainty as to enable the defendant to prepare his defence and the court to pronounce judgment, upon conviction, according to the rights of the case and to prevent a second prosecution for the same offence. It is not regarded as insufficient by reason of any imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

The U.S. Constitution declares that "No person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury." This provision applies only to prosecutions in the Federal courts. But, in many of the State Constitutions, there is a similar provision applying to prosecutions in the courts of such States. Under such a con stitutional provision an indictment is absolutely essential to the jurisdiction of the court to try the offender, and the accused can not even waive the benefit of the provision by consenting to be tried without such. The court of appeals of the State of New York has recently held that a statute, which purports to permit one charged with a capital or otherwise infamous crime to plead guilty without an indictment having first been found against him, is un constitutional as violative of the Constitution of that State.

But where the Constitution does not require an indictment, there is nothing to prevent the legislature from providing for prosecution of all crimes, even capital, by some other mode of accusation; as, e.g., by information, which is a written accusation of crime preferred by the prosecuting officer without the inter vention of a grand jury. And, in some States, such statutes have been enacted. (J. H. BA.) "INDIES, LAWS OF THE," in the colonial history of Spain, a general term for (I) certain codes for the colonies listed below, and especially the compilation of ; or (2) the whole body of colonial law, made up of a multitude of royal cedulas, orders, letters, ordinances, provisions, instructions, autos, dis patches, pragmatics and laws—all emanating from the crown (or crown and tortes) and all of equal force—that were passed through to officers and branches of the colonial administration, or between the departments of government in Spain. The transfer of Spanish law to Ultramar began with the Conquest ; and especially the civil law was translated with comparatively slight alteration. Many things, however, peculiar to colonial conditions—the special re lations of the crown and the papacy in America, the "divisions of lands" and "commendations" (a system of patronage, or modified slavery) of the Indians, the development of African slavery, ques tions of natural and international law, the spread of discovery and administrative areas, the sales and grants of public lands— necessitated organizing the general doctrine and a vast quantity of administrative applications, into a body of special law. The general doctrine was applicable everywhere in Ultramar, and difficult and inconstant communication and other considerations early counselled some codification. This was begun in Mexico in 15 2 5 ; a volume was published in 1563, and other inadequate compilations in 1596 and 1628, finally the great Recopilaci6n de Leyes de los Reinos de las Indies of 1680. This code has re ceived even extravagant praise. But its minute administrative strangulation of colonial political life and its monopolistic eco nomic principles were serious defects. Two centuries in formation, the code of 168o was only one century in effect ; for in the 1 76o's Charles III. began to break down the monopolistic principles of colonial commerce. This came too late to save the mainland colonies in America, but it aggrandized Cuba. It is there (also in Porto Rico and the Philippines) that the later history of the Laws of the Indies (see CUBA) are to be found.

BIBLIOGRAPHY.--Of

the Reco pilacion of 168o, five editions were Bibliography.--Of the Reco pilacion of 168o, five editions were issued by the government, the last in 1841 (Madrid) ; and there are later, private editions approved by the government. See also J. M. Zomora y Coronado, Biblioteca de legislation ultramarina (Madrid, ; J• Rodriguez San Pedro, Legislation ultramarina concordada, covering 1837-68 (Madrid, 1865-68) ; the Boletin official del Ministerio de Ultramar, covering and M. Fernandez Martin, Compila tion legislative del gobierno y administration civil de Ultramar (Mad rid, ; for Cuba 1854-98, see the series of Reales Ordenes . . . publicadas en la Gaceta de la Habana (Havana, .

court, jury, law, grand, bill, offences and statute