county of the city of W., but that the warehouse was in that part of the parish which was in the county of W.; and Patteson, J., held that this was a local description of the place where the warehouse was situate, and that the indictment was not supported as to the breaking and entering the warehouse, but that the prisoners might be convicted of the simple larceny.(j) So the offence of stealing in the dwelling-house to the value of five pounds is local, and, therefore, if the house be stated to be situate in a parish and county, it must be proved that the whole of such parish is in such county, and if it be not so proved the prisoner cannot be convicted of stealing in the dwelling-house to the value of five pounds, but he may be of the simple larceny. The indictment charged that the prisoner, "late of the parish of St. Catherine, in the county of Gloucester," stole divers articles to the value of five pounds in the dwelling-house of M. D. G. Muirhead, "there situate," and it was proved that the parish of St. Catherine was partly in the county of Gloucester and partly in the county of the city of Gloucester, but that the house was situate in that part which was in the county of Gloucester; and Cresswell, J., on the authority of the preceding case, held that the prisoner could not be convicted of stealing in the dwelling-house, but that he might be convicted of simple larceny.(k)

So on an indictment against a parish for not repairing a highway, the part of the road out of repair must be proved to be within the parish.(7) So it has been held that where an injury is partly local and partly transitory, and a precise local description is given, a variance in proof of the place is fatal to the whole, for the whole being one entire fact, the local description becomes descriptive of the transitory injury.(m)

Proof that the place is usually and commonly known by the *description

*332] used is sufficient.(n) And where premises are described to be situate in a particular parish, it is sufficient to prove that the parish is usually known by the name of description.(0) And although there be two parishes of the general name, the general description will be sufficient.(p) And where an indictment stated that the prisoner committed a burglary "at the parish of Woolwich," and the prosecutor stated that the correct name of the parish was "St. Mary, Woolwich," but the parish is called "the parish of Woolwich" in the Central Criminal Court Act, 4 & 5 Will. 4, c. 36, s. 2; it was held that this was sufficient, as the statute showed that this parish is known by the name of "the parish of Woolwich." (q)

Where it is doubtful whether the allegation be merely formal, or whether it be

(j) Reg. v. Brookes, Worcester Spr. Ass. 1842, MS., C. S. G.; s. c., C. & M. 543.
(k) Reg. v. Jackson, Gloucester Spr. Ass. 1842, MS., C. S. G., ante, vol. 2, p. 49.
(1) Ante, vol. 1, p. 511.

(m) 1 Stark. Ev. 466, citing Rex v. Cranage, 1 Salk. 385. In this case the indictment stated that the defendant with others riotously assembled, et quoddam cubiculum cujusdam S.S., in domo mansionali cujusdam David James fregit et intravit, and thirty yards of stuff took and carried away; it appeared to be the house of David Jameson; and Parker, C. J., held that this did not maintain the indictment, for part is local and part not local; the cubiculum is local, the taking and carrying away is not local; but then all is put together as one entire fact under one description, and you cannot divide them. So if there be an indictment for acting a play and speaking obscene words in such a parish, in a play-house in Lincoln's Inn Fields: if there be no play-house in Lincoln's Inn Fields the defendant must be acquitted; for though the words are not local, yet they are made so. One may make a trespass local that is not so. If the speaking had been alleged in Lincoln's Inn Fields, then it had been laid as venue; but here it is otherwise, for here it is alleged as a description where the play-house stood: per Parker, C. J., Ibid.

(n) 1 Stark. Ev. 468.

(0) 1 Stark. Ev. 468, citing Kirtland v. Pounsett, 1 Taunt. 570; Goodtitle v. Walter, 4 Taunt. 671. Per Mansfield, C. J., in Vowles v. Miller, 3 Taunt. 140.

(p) 1 Stark. Ev. 469, citing Doe d. James v. Harris, 5 M. & S. 326; Taylor v. Willans, 3 Bing. R. 449 (11 E. C. L. R.), as where lands are described as situate in Westbury, there being both Westbury-on-Trym and Westbury-on-Severn in the same county. So where an indictment stated that a highway alleged to be out of repair led to the parish of Langwm, in the county of Monmouth, and it appeared that there were two parishes in the county, Langwm Isha and Langwm Ucha, and that the highway led to the former, Bosanquet, J., held the description sufficient: Rex v. Lantrissent, Monmouth Sum. Ass. 1832. MSS., C. S. G.

(g) Reg. v. St. John, 9 C. & P. 40 (38 E. C. L. R.), Parke, B., and Bosanquet, J.

descriptive, the allegation will be referred to venue, rather than to description, even though the action be of a local nature, and the existence of such a parish will be immaterial.(r)

An allegation that A. B. was constable of the parish of St. Paul, Covent Garden, is not satisfied by evidence that he was presented as a fit person to serve as constable for that parish, but sworn in for Westminster generally.(s)

But now, wherever any variance occurs between any local description and the evidence, the court may amend the record under the 14 & 15 Vict. c. 100, s. 1.(t) In criminal prosecutions from the highest offence to the lowest, it is unnecessary to prove the time of committing the offence precisely as laid, unless that particular time is material; and the facts may be proved to have occurred on any day previous to the finding of the bill by the grand jury.(u) In high treason, evidence may be given of an overt act, either before or after the day specified in the indictment; the particular day is not material in point of proof, and is merely matter of form.(v) And where an indictment for a misdemeanor contained several counts, stating several misdemeanors of the same kind, and alleging the same day in each count as the day on which they were committed, the prosecutor was allowed to give evidence of such misdemeanors on different days.(w) And now, by the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient "for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly,"(x) and therefore it seems clear that the particular time need only be proved where time is of the essence of the offence.(y)

[*333 It is immaterial, in general, whether the value ascribed to property in the indictment be proved or not. Where value is essential to constitute an offence, as where a bankrupt was indicted for concealing property to the amount of 207., and the value was ascribed to many articles collectively, the offence must be made out as to every one of those articles; the grand jury having ascribed that value to those articles collectively.(z) And now, by the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient "for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value, or price, or the amount of damage, injury, or spoil is not of the essence of the offence;"(a) and, therefore, it seems clear that the value, price, or amount need only be proved where it is of the essence of the offence.

It has been considered a rule, that the want of a videlicet will in some cases make an averment material that would not otherwise be so; as, if a thing which is not material is positively averred without a videlicet, though it was not necessary to be so, yet it is thereby made material, and must be proved; and that, therefore, where a party does not mean to be concluded by a precise sum, or day stated, he ought to

(r) 1 Stark. Ev. 465, citing Jefferies v. Duncombe, 11 East R. 226.

(8) Goodes v. Wheatley, 1 Campb. R. 231, as stated in 1 Stark. Ev. 470. (1) Ante, p. 321.

(v) Ibid.

(u) 1 Phill. Ev. 514.

(w) Rex v. Levy, 2 Stark. R. 458, Abbott, C. J. (z) Nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened. See the section, vol. 2, p. 326.

(y) And a case might occur where time was of the essence of the offence, and yet it might not be essential to prove the precise time; as, for instance, if a statute made the doing of an act in certain months of the year an offence, it would suffice to prove that the act was done between such a day and such another day in those months, though the particular day could not be proved. See Rex v. Chandler, 1 Ld. Raym. 581, and Rex v. Simpson, 10 Mod. R. 248, in note (r), ante, p. 103.

(2) Rex v. Forsyth, Russ. & Ry. C. C. R. 274.

(a) See the section, ante, vol. 2, p. 326.

1 Though it is necessary that time should be alleged, it is not requisite to prove that the act was done on the precise day alleged: State v. Baker, 34 Maine 52. Where the time of the commission of the offence charged is averred in an indictment under a videlicet, the prosecutor is not held to proof of it as laid; but he may prove that the offence was committed at any time before the finding of the indictment, within the period prescribed as a bar: M'Dade v. State, 20 Ala. 51; Wingard v. State, 13 Geo. 396.

plead it under a videlicet, for if he do not he will be bound to prove the exact sum or day laid, it being a settled distinction that where any thing which is not material is laid under a videlicet, the party is not concluded by it, but he is where there is no videlicet. (b) But it is by no means generally true that the omission of a videlicet will make it necessary to prove the particular sum or day, &c., strictly, as laid, (e) for the want of a videlicet will never do harm where, from the nature of the case, the precise sum, date, magnitude, or extent is immaterial.(d)

Although the question, whether a writing or other matter be the same as has been previously in the possession of a party, is a question of fact, yet it often happens. that the court has to decide whether the evidence be sufficient to be left to the jury. Where in an action for a libel contained in a pamphlet, a witness proved that the defendant had given her a pamphlet, and, on a copy being put in her hand, she said, "This is my handwriting. I believe this to be the pamphlet; it was like it and in this form. I read different portions of it, and lent it to several persons; it was returned to me, and I then wrote this upon it. The defendant has given me different tracts at different times. I cannot swear that this is the same paniphlet he gave me. It is an exact copy, if it is *not the same. It is the one I *334] wrote upon. I cannot say I got back the same copy I lent. I only say it is exactly like it. If that is not the copy the defendant gave me, I do not know what has become of it;" it was held that there was some evidence to go to the jury that the copy was the same as the defendant had given to the witness.(e)

A question frequently arises in cases where the prisoner pleads that he has been previously acquitted, whether the acquittal has been of the same offence for which he is indicted. Thus where the prisoners, having been acquitted of a rape on Mary Lee, pleaded that acquittal to another indictment for a rape on Mary Lee, at the same time and place as was alleged in the other indictment, and issue was taken on the identity of the rapes charged in the two indictments, the prisoners' counsel only put in the record of the previous acquittal, and the commitment of the magistrates for a rape on Mary Lee; and Bolland, B., told the jury that it did not appear to him that there was any evidence of the identity of the rapes charged in the two indictments.(ƒ)

*335]

*CHAPTER THE THIRD.

OF WRITTEN EVIDENCE.

Acts of Parliament are

Of the Proof and Effect of-1. Public Documents.-2. Private Documents. 1st. Or the proof and effect of public documents. either public or private. The printed statute book is evidence of a public statute, not as an authentic copy of the record itself, but as hints of that which is supposed

(b) 2 Saund. 291 c. in note (1) to Dakin's case.

(c) 1 Phill. Ev. 213 (n), 7th ed.

(d) Ibid.; 1 Stark. Ev. 454; Rex v. Gilham, 6 T. R. 265. (e) Fryer v. Gathercole, 4 Exch. R. 262, Alderson, B., said, "If I give a shilling to a person to take up stairs and put away, and he hands me one back as the same, it would be a question for the jury to say whether it is the same, and there is nothing unreasonable if they find that it is." Alderson, B., also said, "Suppose I pass my hand across my eyes for an instant, so as to lose sight of the coin for a moment, cannot I prove the identity?" Pollock, C. B., treated the question as one of degree. The evidence would be weaker or stronger in proportion as the numbers of the work were more or less, and the probability of the copy being the same would be greater or less according as there had been more or less lendings of it.

(ƒ) Rex v. Parry, 7 C. & P. 836 (32 E. C. L. R.), s. c.; Rex v. Lea, 2 M. C. C. R. 9. The jury, however, found a verdict for the prisoners, and it was held that this verdict could not be disturbed. Bolland, B., was strongly of opinion that the commitment was not admissible. In Reg. v. Martin, 8 A. & E. 481, Lord Denman, C. J., asked, "Have you any authority for saying that identity is shown prima facie by collation of the indictments? A defendant may have stolen the goods of the same party twenty times;" and on Rex v. Parry being cited, Lord Denman, C. J., said, "The point as to the sufficiency of the proof was not decided by the fourteen judges." But there is no doubt that there was no evidence whatever of identity in that case.

to be lodged in every man's mind already (a) A private Act of Parliament was usually proved formerly by a copy examined with the Parliament roll. (b) But now, by the 8 & 9 Vict. c. 113, s. 3, "all copies of private, or local and personal Acts of Parliament not public Acts, if purporting to be printed by the Queen's printers, shall be admitted in evidence thereof by all courts, judges, justices and others, without any proof being given that such copies were so printed."

By the 13 & 14 Vict. c. 21, s. 7, "Every Act made after (A. D. 1850) shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such, unless the contrary be expressly provided and declared by such Act." A private Act may contain clauses of a public nature, and then the Act, as far as those are concerned, is to be regarded as a public Act. Thus a clause relating to a public highway, occurring in a private Enclosure Act, has been holden provable in the same way as a public Act. (c) In some Acts of Parliament not relating to the kingdom at large, a special clause is often inserted declaring them to be public Acts, and that they shall be taken notice of as such, without being specially pleaded; in which case they are to be proved in the same manner as public Acts; it is not necessary to prove them by an examined copy, or to show that the printed copy was printed by the Queen's printer. (d) The clause referred to was intended for the facility of proof; it will not give the Act the effect of a public Act for other purposes, as with regard to the recital of facts contained in it.(6) A clause was often formerly inserted in private Acts, providing that they shall be printed by the King's printer, and that a copy so printed shall be admitted as evidence of *the [*336 Act. In such cases, a copy, purporting to be printed by the King's printer, will be admissible in evidence: it is not necessary to prove that the Act was purchased at the King's printer.(f) By the 41 Geo. 3, c. 90, s. 9, copies of the statutes of Great Britain and Ireland prior to the union, printed by the printer duly authorized, shall be received as conclusive evidence of the several statutes in the courts of either kingdom.

The preamble of an Act of Parliament, reciting that certain outrages had been committed in particular parts of the kingdom, was adjudged by the Court of King's Bench to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed.(g)

The journals of the House of Lords or of the House of Commons are evidence in criminal cases as well as in civil, and may be proved by examined copies; but the printed journals were not formerly evidence. (h) But now, by the 8 & 9 Vict. c. 113, s. 3, "all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed." An unstamped copy of the minutes

(a) Gilb. Ev. 10; 2 Phill. Ev. 127; 1 Stark. Ev. 274.

(6) Bull. N. P. 225.

And see Hob. 227.

(c) Rex v. Utterby, 2 Phill. Ev. 128, per Holroyd, J. (d) 2 Phill. Ev. 128, citing Beaumont v. Mountain, 10 Bingh. R. 404 (25 E. C. L. R.); 4 M. & Sc. 177; Woodward v. Cotton, 1 C. M. & R. 44; 4 Tyrw. 689; 1 Stark. Ev. 275. (e) 2 Phill. Ev. 129, citing Brett v. Beales, M. & M. 421.

(f) 2 Phill. Ev. 129, Lincoln Sum. Ass. 1832, by Park, J. A. J. Where the copy of an Act is incorrect, the court will be governed by the Parliament roll: Rex v. Jeffries, 1 Str. 446; Spring v. Eve, 2 Mod. 240; and 2 Phill. Ev. 129, and the cases cited there in note (5). (3) Rex v. Sutton, 4 M. & S. 532.

(4) Lord Melville's case, 24 How. St. Tr. 683; Chubb v. Solomons, 3 C. & K. 75.

To constitute a statute a public act, it is not necessary that it should extend to all parts of the state. It is a public act if it extends equally to all persons within the territorial limits described in the statute: Levy v. State, 6 Ind. 281. Certificate of law must be under the great seal: Sisk v. Woodruff, 15 Ill. 15; Wilson v. Lazier, 11 Gratt. 477. Foreign laws are to be proved as facts by evidence addressed to the court and not to the jury: Pickard v. Bailey, 6 Foster 152. As to printed volume of statutes, see Emery v. Berry, 8 Foster 473; Dixon v. Thatcher, 14 Ark. 141.

VOL. III.-18

of the reversal of a judgment in the House of Lords, without more of the proceedings, is evidence of the reversal.(i)

The public Acts of Government, and Acts by the King in his political capacity, are commonly announced in the Gazette, published by the authority of the Crown; and of such Acts announced to the public in the Gazette, the Gazette is admitted in courts of justice to be good evidence.(j) A proclamation for reprisals, published in the Gazette, is evidence of an existing war. (k) Proclamations for a public peace, or for the performance of a quarantine, and any acts done by or to the King in his regal character, may be proved in this manner, or by printed copies under the 8&9 Vict. c. 113, s. 3;(7) and upon the same principle, articles of war, purporting to be printed by the King's printer, are allowed to be evidence of such articles.(m) A gazette, in which it was stated that certain addresses had been presented to the King, has been adjudged to be proper evidence to prove an averment of that fact in an information for a libel;(n) for they are addresses, said Lord Kenyon, C. J., of different bodies of the King's subjects, received by the King in his public *337] capacity, and they thus *become acts of state. And in Rex v. Forsyth,(0) the twelve judges seemed to think that the production of the Gazette would be sufficient, without proof of its being bought of the Gazette printer, or where it came from. In Rex v. Sutton,(p) the Court of King's Bench determined that the King's proclamation (which recited that it had been represented that certain outrages had been committed in different parts of certain counties, and offered a reward for the discovery and apprehension of offenders) was admissible in evidence, as proof of an introductory averment in an information for a libel, that acts of outrage of that particular description had been committed in those parts of the country.

By the 8 & 9 Vict. c. 113, s. 1, "whenever by any Act now in force or hereafter to be in force any certificate, official or public document, or document or proceeding of any corporation or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any court of justice, or before any legal tribunal, or either House of Parliament, or any committee of either House, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be scaled or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence."

Sec. 2. "All courts, judges, justices, masters in chancery, masters of courts, commissioners judicially acting, and other judicial officers shall henceforth take judicial notice of the signature of any of the equity or common law judges of the Superior Courts at Westminster, provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document."

Records are proved either by producing the record itself, or by an exemplification,

(i) Jones v. Randall, Cowp. 17. But a resolution of either House is not evidence of the truth of the facts there affirmed; and therefore, in the case of Titus Oates, who was charged with having committed perjury on the trial of persons suspected of the Popish Plot, a resolution in the journals of the House of Commons, asserting the existence of the plot, was not allowed to be evidence of that fact: 4 St. Tr. 39; 1 Phill. Ev. 406, 7th ed.; but see 2 Phill. Ev. 106, last ed.

(j) 2 Phill. Ev. 107, 108; 1 Stark. Ev. 279.

(See this clause, ante, p. 335.

(k) Ibid.

(m) 2 Phill. Ev. 108, 109. See the 27 & 28 Vict. c. 119, as to the articles of war for the Navy.

(n) Rex v. Holt, 5 T. R. 436; s. c., 2 Leach 593. (0) R. & R. 274; ante, vol. 2, p. 526.

(p) 4 M. & S. 532.

1 Historical books which have been generally received as authentic are admissible as furnishing evidence of remote transactions: Comm. v. Alburger, 1 Whart. 469.