ty who adds the similiter

it is a general rule, that in the indictment or other 7 as surplusage, must be -t be stated, see ante, p. 113. Donally penal, if committed at der particular circumstances, amstances be not proved, the

of the simple felony: as for nt for stealing from a dweilinglarceny, but fail in proving the the dwelling-house, the defendsimple larceny. So, if upon an og, you fail to prove the breaking may still be convicted of stealing in

ls be of the value of 51.; or if the or you fail in proving that the goods ling-house, he may be convicted of upon an indictment for burglary and se, if the prosecutor fail in proving committed in the night-time, the deed of house-breaking; or if that be not ..victed of stealing in the dwelling-house, v, as in the instance last mentioned. . must be proved in substance as laid; a will be fatal. As to statements of matter ment purport to be descriptive of the reest variance between it, and the record given it, will be fatal; but if the statement be the record itself, but merely of some fact ed by a record, there a literal variance will the record prove the allegation in substance.

ara, 9 East, 157. and see the cases collected 1 Arch. Pl. and Ev. civ. act. 336, et seq. So, exchange, or other written instrument, be set 1, or by a fac simile, the slightest variance will be Le described generally, as in larceny, evidence trument substantially answering the description, allegation. It has been decided, however, that variance, as "undertood" for "understood,” Cowp. 229. 1 Doug. 194.) or "reicevd" for . v. Hart, 2 East's P. C. 977), is in all cases imR. v. Dudman, 4 B. & C. 850. And by stat. 9 , it shall be lawful for any Court of oyer and terdelivery, or any judge sitting at nisi prius, if judge shall see fit so to do, to cause the record, trial may be pending before them, in any indict

Lord the King, his crown and dignity." If the offence be committed in the reign of one King, and the offender be indicted in the reign of his successor, the indictment should conclude, against the peace of the late King; R. v. Lookup, 3 Burr. 1901; or if commenced in the reign of one King, and continued into the reign of another, it seems that a conclusion against the peace of both Kings would be good. 2 Hawk. c. 29, s. 93. But if an indictment for an offence committed in the present reign, conclude against the peace of the late King, the word "late" may be rejected as surplusage. R. v. Scott, R. & Ry. 415. Since the many alterations in the crown law, introduced in the late and present reign, it often is a matter of some doubt whether indictments for offences, formerly punishable at common law, and now by statute, should conclude as at common law, or contra formam statuti. But as it has been holden that a conclusion contra formam statuti, to an indictment for an offence at common law, does not affect the validity of the indictment, R. v. Matthews, 5 T. R. 162, the judges have, I understand, intimated to the clerks of the indictments on the different circuits, that it may be advisable to conclude their indictments, generally, as for offences against a statute. This is prudent and safe pleading, where a doubt exists as to its necessity; but where there is no doubt, and the offence is defined and punishable at common law only, a conclusion contra formam statuti would appear slovenly pleading. Formerly, concluding as at common law, instead of contra formam statuti, 2 Hawk. c. 25, s. 116, or concluding contra formam statutorum for statuti, or statuti for statutorum, ld. s. 117, or omitting the contra pacem, Id. s. 92, was bad, even in arrest of judgment, R. v. Thomas Cook, R. & Ry. 176, or upon writ of error. But now, by stat. 7 G. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise, shall be stayed or reversed for the omission of the words "against the peace," nor for the insertion of the words "against the form of the statute" instead of against the form of the statutes," or vice versa. And where an indictment preferred in the reign of the present King, for an offence committed in the reign of George IV., concluded against the peace of our Lord the King, &c., the judges held the defect to be cured by this statute; R. v. Chalmers, Ry. & M. 352; on the principle, no doubt, that a bad conclusion was the same as

none.

Joinder of Offences.] There is no objection to stating the same offence, in different ways, in as many different counts of the indictment as you may think necessary, even although the judgment be different, R. v. Galloway, 1 Ry. & M. 234. See R. v. Powell, 2 B. & Adolph. 75, provided all the counts be for felonies, or all for misdemeanors. And even if different felonies or

misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment in point of law upon this ground. In the case of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies, and confine himself to that; but this practice has never been extended to misdemeanors. Per Ld. Ellenborough, C. J., Young v. Rex in error, 3 T. R. 98. The clerks of the indictments on the different circuits, however, have directions not to charge the same party with larceny and receiving the same goods, in the same indictment. See R. v. Galloway, 1 Ry. & M. 234. R. v. Madden, Id. 277. And the judges have, upon more than one occasion, censured the practice of sending two bills before the grand jury, at the same time, against the same person, the one for stealing and the other for receiving the same goods. So where an indictment was preferred for cutting with intent to murder, and another for a common assault, for the same offence, Vaughan, B. censured the practice, and put the prosecutor to his election. R. v. John Smith, 3 Car. & P. 412. See also R. v. Doran, 1 Leach, 538.

Where in one count of an indictment on stat. 37 G. 3, c. 70, the defendant was charged with endeavouring to incite a soldier "to commit an act of mutiny, and to commit traitorous and mutinous practices," it was objected in arrest of judgment, that the count was bad, as charging two offences; but the judges seemed to think it good, for there might be only one endeavour to incite to the two offences; the point, however, was not decided, as there were other counts which were unobjectionable. R. v. Fuller, 1 Bos. & P. 180. There is no objection, however, in charging a defendant, in one count, with assaulting two persons, where the whole forms one transaction. See R. v. Benfield and Saunders, 2 Burr. 984, per Ld. Mansfield, C. J.

Joinder of Defendants.] If several be engaged in the commission of the same offence, they may be joined in the same indictment; or each may be indicted separately. 2 Hawk. c.25, s. 89. See R. v. Kingston, 8 East, 41. R. v. Benfield and Saunders, 2 Burr. 984. And where three were indicted for burglary and stealing in a dwelling-house, and one pleaded guilty, and the others were convicted of the larceny in the dwelling-house only, the judges held that judgment should be entered against the three accordingly. R. v. Butterworth, et al., R. & Ry. 520. Also the principal and accessory, or the principal and receiver, may be joined in the same indictment; or they may be indicted separately.

R. v.

Indictment, how found.] The grand jury may find as to one count a true bill, and as to another not a true bill. Fieldhouse, Cowp. 325. And where a bill for murder is presented, they may find it a true bill for manslaughter only. But

the usual practice in this latter case is, for the grand jury to bring the bill back into Court, and upon their informing the judge of their intention, he will order the bill to be altered into one for manslaughter, and to be again laid before them. In other cases, however, the grand jury cannot find a true bill as to part of a count, and reject the remainder. 2 Hawk. c. 25, s. 2.

SECTION 5.-Evidence generally.

1. What must be proved, and by whom.

Where the defendant pleads not guilty, the prosecutor always begins to give evidence, and must prove the defendant to be guilty of the offence charged against him, before the latter can be called upon for his defence. Even where the offence consists wholly or partly of an omission or negative, the prosecutor must prove the negative. And therefore, where upon an indictment for coursing deer in inclosed ground, without the consent of the owner, the question was, whether the onus lay upon the prisoner to prove that he had the consent of the owner: Lawrence, J. held that it did not, but that it was incumbent on the owner to prove the negative; and the owner not being in attendance, the prisoner was acquitted. R. v. Thomas Rogers, 2 Camp. 654. So, where upon an indictment for lopping and topping trees in the night time, without the consent of the owner, it was proved that the prisoners had committed the offence in the night time, and when detected had run away; that the owner, after the offence was committed, had given orders for the apprehension of the prisoners, but died before the trial; and the land-steward proved that he himself never gave consent, and he believed his master never did: Bayley, J. told the jury that they must be satisfied that the prisoners did not obtain the consent of the owner, but left it to them to say whether the facts proved did not furnish reasonable evidence of want of consent; and the jury found the prisoners guilty. R. v. Hazy and Collins, 2 Car. & P. 458. But where an offence is created by statute, and an exception is made either by another statute, or by another and substantive clause of the same statute, it is not necessary for the prosecutor, either in the indictment or by evidence, to shew that the defendant does not come within the exception; but it is for the defendant to prove the affirmative, and which he may do under the plea of not guilty. See R. v. Pemberton, 1 W. Bl. 230.

If the defendant plead specially, as where he pleads auterfois acquit, &c. or upon an indictment against a parish for nonrepair of a highway, where the defendants plead that others and not the parish are bound to repair, the rule is the same as