Indictment (said to be derived, through the French enditement, enditer, from the Latin in-dicare, to point out, or, as some suppose, from indicere and indictus), a written accusation of an offence, preferred to, and presented upon oath as true by, a grand jury. Indictments are to be preferred in criminal matters only, and they lie for all treasons and felonies, for all misprisions (that is, concealments) of treasons and felonies, and for all misdemeanors of a public nature. The course of procedure is this: Upon information by parties who are cognizant of the criminal acts alleged, an indictment is framed by the proper prosecuting officers, and laid before the grand jury. If the jurors, after hearing the evidence, do not find "a true bill," the party, if in custody, is entitled to be discharged without further answer. If the bill, on the contrary, be found to be a true bill, it is returned into court, and the party stands indicted and may be required to answer to the charges made against him. (See Jury.) In respect to its form, the indictment is intended to be a plain and certain narrative of the offence charged, and of the necessary circumstances that concur to ascertain and define the fact and its nature.
It can perhaps be no longer made a reproach to the law that it demands, in the words of Chief Justice Hale, "unseemly niceties " in the framing of indictments, and yet the reason for and requirement of singular exactness still remain. In the first place, it is the plain right of the accused to know that he has been legally indicted. To this intent, the bill must show with reasonable certainty that it was presented to and proceeds from a court of competent jurisdiction in the case; that the place where it was found was within its jurisdiction; and lastly, that it was found upon the oaths of at least 12 jurors, who must further appear to have been of the county or other limits of the court's jurisdiction. The insertion of the jurors' names is not necessary. The indictment must be certain as to the name of the accused, and should repeat it with every distinct allegation. In general a mistake in the name is fatal, though a mere misspelling of it, if the sound be rendered aright, may not vitiate the indictment. If several joined in the commission of the offence, as in assault or robbery, all may be joined in the bill, or each may be indicted separately.
Yet when the crime is in its nature distinct and individual, as perjury or the utterance of blasphemous or seditious words, there can be no joinder, though several were guilty of the same offence. The time and place of every material fact must be distinctly averred. Generally, however, it is not necessary to prove the commission of the offence at the precise place and time laid. * It is sufficient if it appear to have been committed within the jurisdiction of the court, and on any day previous to the finding of the bill, if that fall within the period during which the offence may be prosecuted. But if the time or place is an essential element of the crime, a variance in either respect between the charge and the proof is fatal. If it be necessary to cite written instruments, their dates must be truly stated. The date is also material when a period for preferring indictments is prescribed by law, or when statutes of limitations are involved. In the statement of the offence, the indictment must recite explicitly the facts which constitute the alleged crime, and not merely their supposed legal bearing. It is the simple office of the bill to exhibit the facts. If there be sufficient to constitute the crime charged, that will be judicially recognized by the court as their legal consequence.
A particular offence must be alleged. To charge the defendant with one of two offences disjunctively, as " forged or caused to be forged," is insufficient; and so it is to describe him as a general offender, as "common thief" or "common slanderer." Yet one may be indicted as a " common barretor," or as a " keeper of a common bawdy house," for in these cases the habitual character makes the particular offence. - In the description of some crimes certain technical words and terms must be employed; thus, " traitorously " in indictments for treason, and " feloniously" in all charges of felony; "kill and murder" in charging murder, and " took and carried away " in a case of simple larceny. In indictments under statutes it is sufficient to describe the offence in the words of the statute. The indictment must conclude in the prescribed form, where that is given by the state constitution. It is generally in the words, " against the peace and dignity " of the state or commonwealth.