Verdicts and judgments valid after amendments.

Records to

to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed: provided also, that where any such trial shall be to be had before another jury the crown and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the first jury was sworn.

II. Every verdict and judgment which shall be given after the making of any amendment under the provisions of this act shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made.

III. If it shall become necessary at any time for in amended any purpose whatsoever to draw up a formal record (c)

be drawn up

(c) The amendments contemplated in this and the foregoing section are those amendments in the indictment of such variances as in the opinion of the court were not material to the merits of the case, or were not likely to prejudice the defendant in his defence, which have been made by order of the court. In making up the record, however, where it now may be necessary, where the prisoner has been indicted for a felony, and where the jury have acquitted him of the felony but (under the provisions of the 9th sect.) have found a verdict of guilty of an attempt to commit it, the course will be to set out the indictment as actually found by the grand jury, and the special verdict, pursuant to the statute, found by the jury before whom he is tried, and not to alter the indictment so as to harmonize with the verdict, for the sections referred to do not authorize such a proceeding. The record, being an authentic narrative of the proceedings of the court in each case, must contain a true record of the pleadings, verdict and judgment,

noticing the

in any case where any amendment shall have been form, without made under the provisions of this act, such record amendments. shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made.

by which the

inflicted need

IV. In any indictment for murder or manslaughter The means preferred after the coming of this act into operation it injury was shall not be necessary to set forth the manner in which not be specior the means by which (d) the death of the deceased dictments

to afford a prisoner his remedy by writ of error, and to enable him to plead autrefois convict or acquit. See Appendix (4).

(d) In future whether the murder be by shooting, striking with a stone, beating with the fists or stick, riding over, strangling, starving, drowning or poisoning, the statute says that a general allegation that the prisoner did feloniously kill and murder the deceased, as in the form in the Appendix (1) or (2), shall be sufficient. The old rule, as laid down by Coke and all the writers on Criminal Law since his time, was, that if the weapon with which the murder was effected was described as a knife, and if it were proved on the trial that the deceased was killed by a dagger, sword, staff, bill or any other instrument capable of producing the same kind of death as the instrument stated in the indictment, the variance was not material; but if a stabbing or shooting were charged, and a poisoning or starving were proved, the variance would be fatal. (R. v. Muckally, 9 Coke, Rep. 67 a; 4 Bla. Com. 196.) The books are full of examples of the failure of justice in consequence of the rule which required the exact nature of the injury to be laid with technical strictness in the indictment. In the case of R. v. Thompson, 1 Moody, C. C. 139, where the indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers mortal blows and bruises of which he died, and it appeared in evidence that the death was caused by the falling of the deceased on the ground in consequence of a blow on the head received from the defendant, it was held that the cause of death was not properly stated. In the case of R. v. Hughes, 5 Car. & P. 126, where the prisoner was indicted for shooting with a pistol loaded

fied in in

for murder and manslaughter.

Forms of indictment in cases of forgery and uttering, stealing

was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased, and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.

V. In any indictment for forging, uttering (e), stealing, embezzling, destroying, or concealing, or for obtaining by false pretences, any instrument, it shall be sufficient to describe such instrument by any name or obtaining by designation by which the same may be usually known,

and embezzling or

false pre

tences.

In engraving plates, &c.

or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same or the value thereof.

VI. In any indictment for engraving or making the whole or any part of any instrument, matter, or thing whatsoever, or for using or having the unlawful possession of any plate or other material upon which the whole or any part of any instrument, matter, or thing whatsoever shall have been engraved or made, or for having the unlawful possession of any paper upon which the whole or any part of any instrument, matter, or thing whatsoever shall have been made or

with gunpowder and a bullet, it being proved that no bullet was found in the room where the crime occurred and that the wound might have been occasioned by the wadding of the pistol, it was held that the indictment was not sustained. The case Reg. v. Jones, 1 Car. & Kir. 243, is another illustration of the necessity for the change effected by the present statute.

(e) By 2 & 3 Will. 4, c. 123, s. 3, it is declared to be sufficient in cases of forging or uttering to describe the instrument or writing as an indictment for larceny. See Appendix (6) and the cases there referred to.

printed, it shall be sufficient to describe such instrument, matter, or thing by any name or designation by which the same may be usually known, without setting out any copy or facsimile of the whole or any part of such instrument, matter, or thing.

cases.

VII. In all other cases wherever it shall be neces- In other sary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof.

fraud par

sons need not

proved in

gery, utter

pretences.

VIII. From and after the coming of this act into Intent to deoperation it shall be sufficient in any indictment for ticular perforging, uttering, offering, disposing of, or putting off be alleged or any instrument whatsoever, or for obtaining or attempt- cases of foring to obtain any property by false pretences, to allege ing or false that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person; and on the trial of any of the offences in this section mentioned it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to defraud (ƒ).

dicted for

misdemeanor

IX. And whereas offenders often escape conviction A party in by reason that such persons ought to have been felony or charged with attempting to commit offences, and with the actual commission thereof (g): for remedy attempt to

(f) See Appendix (6), (7).

not may be found

(g) "There is sometimes considerable difficulty in determining whether the charge shall be a charge of felony for the consumma

guilty of an

commit the

same, and

shall be liable to the same consequences

thereof be it enacted, that if on the trial of any person

charged with any felony or misdemeanor it shall as if charged appear to the jury upon the evidence that the de

with and con

attempt only.

victed of the fendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and, thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; No person so and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt for the same. to commit the felony or misdemeanor for which he was so tried.

tried to be

afterwards

prosecuted

Repeal of the 11th section

& 1 Vict.

c. 85.

X. And whereas it is enacted by a certain act of of 7 Will. 4 parliament passed in the first year of the reign of her present majesty Queen Victoria, intituled "An Act to amend the Laws relating to Offences against the Person," that " on the trial of any person for any of the offences thereinbefore mentioned, or for any felony whatever where the crime charged shall include an

tion of a crime, or of a misdemeanor in attempting it; and if the felony be charged and any doubt is thrown on its completion the prisoner will of course be acquitted;" Dick. ed. Talfourd, 192; 2 Hale, P. C. 172; 1 Leach, 14. The reason assigned by the elder text writers why a felony could not be modified into a misdemeanor by the jury is, that the prisoner would lose the benefit of a copy of the indictment and of a special jury. But this reason is not at all satisfactory, and it may be safely said that the prisoner will not lose any thing by the change.