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finding guilty, where there is a variance between the charge and the facts proved, is a matter of much importance. This much can be said :The offense of which the accused is convicted must be of the same class with that which is charged. Cases constantly occur of soldiers charged with desertion, being found “not guilty," but
guilty” of absence without leave, the substance of the charge being the absence. So also, in cases of officers charged under the 61st Article with conduct unbecoming an officer and a gentleman, courts frequently find, where the evidence does not establish the full guilt, “ not guilty,” but" guilty” of conduct to the prejudice of good order and military discipline."
The averments as to the substance may be divisible. Thus, where a soldier is charged with being absent a certain number of days, he may be found guilty of being absent a less number than stated in the charge; or where a soldier is charged under the 22d Article, with beginning, exciting, or joining in a mutiny with others, while some are acquitted he may be found guilty.
Again, where the intent of the prisoner furnishes one of the ingredients in the offense, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offense, it is sufficient to prove one intent only. If a soldier, for example, was charged under the 21st Article with lifting his sword with the intent of striking his superior officer, and with the further intent of exciting a mutiny in the garrison, the averment is divisible; and the court might negative the latter intent, but find guilty of the former.
Matter of Description. In every charge there enters more or less of description; and, under the rule in question, a variance in the description and the proof will
· Roscoe, p. 101.
often be fatal. In criminal prosecutions in the civil courts it is believed the defendant is allowed to take advantage of much finer exceptions than is allowed by the custom of courts-martial. The rule in the civil courts is that where a person or a thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same as that described in the indictment. Thus, in an indictment for stealing a black horse, the animal is necessarily mentioned, but the color need not be stated; yet, if it is stated, it is made descriptive of the particular animal stolen, and a variance in the proof of the color is fatal.
Courts-martial would not fail to correct such a variance in their findings.
In 1840 a prisoner was arraigned for desertion from
navy. At the time of his desertion he was rated as master-at-arms, and was so named in the charge. He pleaded guilty. The court was closed for deliberation, and then, it coming to its knowledge that he had not been rated as master-at-arms since his apprehension, the court thought it had proceeded too far to alter the charge in this way, and adjudged him to be discharged. The attorney-general held that, the fact of his having pleaded to the charge, of his never having in any way made such an exception or defense, and of there being no dispute whatever as to the identity of the prisoner, would have prevented the accused himself from taking advantage of the error at this stage of the case. Of course it offered no ground for the court to refuse to proceed to judgment on the merits.
Averments as to Name. In the trial of a case, the
1 Starkie, p. 374.
9 III. Opinions Attorney-General, June 24, 1840.
name of the accused, of the parties injured, and of thira persons introduced into the charge as descriptive of some person or thing, should be proved as laid in the charge; but here the same particularity does not exist as in the civil courts.
The Judge-Advocate General has held it a fatal variance where the accused is charged under one name and found guilty under another. Where one was arraigned and pleaded guilty as George Sheldon, but was found guilty and sentenced as Charles Sheldon, it was held fatal ; still the court might have corrected this on their finding.
In England the common law upon this subject has been materially modified by statute, and gives, I believe, the practice, with slight variation, of courts-martial in this country. This statute provides that " whenever, on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense, or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever, therein named or described,
Opinions J. A. G., p. 182.
or in the ownership of any property named or described therein, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable.” 1
The only difference seems to be that courts-martial will amend the error on the findings instead of amending during the trial. The words and terms of a charge we have seen cannot be changed after the arraignment of the prisoner.?
Averments as to Time. The charges before courtsmartial being usually drawn up so as to charge an offense as committed “on or about ” a certain time, a variance between the time charged and that proved will be corrected by the court. Where, under a charge of murder, the specification set forth that the crime was committed on the 24th of September, 1863, but the evidence (which fully established the commission of murder in the first degree) showed that it occurred on July 26, 1863, and the accused (who was convicted and sentenced to be hung) took no exception on account of this variance—held, that it was not such a fatal one as to affect the validity of the proceedings. But, advised in such case, that the court, if not dissolved, be reconvened in order to make a special finding, in terms substituting the proper date for the one indicated in the specification.'
1 14 and 15 Victoria, c 100. G. C. M. 0. 21, A. G. O., Feb. 17, 1877. 8 Opinions J. A. G., p. 381.
Averments as to Place. Where crimes are not local in their nature, a mistake in the particular place in which an offense is charged will not be material. Where a soldier is charged with deserting from a particular place the court may find, on evidence adduced, that he deserted from another.
Where the offense is local, however, the name of the place should be correctly stated in the charge and proved as laid ; otherwise parties may be found guilty of charges
which, practically, they have not been called on to answer.
Averments as to Mode of Committing an Offense. It is not necessary strictly to prove descriptive averments as to the mode of committing an offense. “It is suflicient,' says Greenleaf, “ if the proof" agree with the allegation in its substance and general character without precise conformity in every particular. In other words, an indictment describing a thing by its generic term is supported by proof of a species which is clearly comprehended within such description. Thus, if the charge be of poisoning by a certain drug, and the proof be of poisoning by another drug; or the charge be of felonious assault with a staff, and the proof be of such assault with a stone; or the charge be of a wound with a sword, and the proof be. of a wound with an axe; yet the charge is substantially proved."1 Though the weapon may not be proved to be the same, yet it must appear that the species of killing was the saine. Thus, if the prisoner be indicted for poisoning, it will not be sufficient to prove a death by shooting or strangling.
Averments as to Value. In charges alleging loss, or theft of articles, it is proper to state the value. Such value need not generally be strictly proved.
1 Vol. I, S 65.