c. 100, s. 17, in the case of larceny, although the indictment state only one act of stealing, and at one time, yet if it appear that the property was in fact stolen at different times, the prosecutor shall not, by reason thereof, be required to elect on which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six calender months elapsed between the first and the last of such takings; and in either of such last-mentioned cases, the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last of such takings. 14 & 15 Vict. c. 100, s. 17.

By the defendant.] If the defendant plead specially, as where he pleads auterfois acquit, &c.,—or, upon an indictment against a parish for non-repair of a highway, where the defendants plead that others, and not the parish, are bound to repair,—the rule as to the right to begin, is the same as in civil actions, namely, that the party who adds the similter, begins. When the plea is put in issue therefore, the defendant must prove it, in the same manner that a prosecutor must prove an indictment. Where the plea is auterfois acquit or convict, the defendant must get the former record made up, and produce a certified copy of it in evidence, as directed, ante, p. 113. He must also, if necessary, prove his identity with the party before acquitted or convicted, and the identity, in substance, of the offence in both cases.

Under the general issue, not guilty, the defendant may make what defence he can, showing that he is not guilty. And if indicted as accessory before or after the fact to a person named, he may contest the case of the prosecutor against that party, and show that he is not guilty; or if indicted as accessory to a person unknown, he may show that no felony in fact was committed. Under the general issue also, he may set up an alibi as a defence, and call witnesses to prove it; he may call witnesses to prove any other defence he may set up; or he may call witnesses to character,-in larceny, as to his honesty, -in murder, &c., as to his humanity,-in treason, as to his loyalty, in riot, as to his peaceable disposition, and the like. Witnesses to character are always useful: in doubtful cases they may affect or influence the verdict; or if the de fendant be found guilty, they may have the effect of mitigating the punishment.

Variance.] I have already noticed this subject fully, in treating of the cases in which the court, at the trial, will amend the indictment. See ante, p. 99. I shall therefore notice it in this place very shortly.

If there be a variance between the indictment, and the evidence brought forward to sustain it, the court on application

will amend the indictment in the following instances :--where the variance is in the setting out of any matter in writing or in print,—or in the name of any county, city, town, parish, &c.,— or in the name of the owner of any property which is the subject of the indictment, or in the name of any person njured, or intended so to be, by the offence charged,—or in the name of any person mentioned in the indictment,—or in the "name or description of any matter or thing whatsoever therein named or described,"-c -or in the ownership of property therein named or described. See ante, pp. 113, 114.

But there are some cases of variance, where an amendment is not necessary. Upon an indictment for embezzlement, if the evidence prove a larceny, the jury may acquit the prisoner of the embezzlement, and find him guilty of simple larceny, or of larceny as clerk or servant; 14 & 15 Vict. c. 100, s. 13; or upon an indictment for larceny, if the evidence prove an embezzlement, the jury may acquit the defendant of the larceny, and find him guilty of the embezzlement. Id. s. 13; upon an indictment for obtaining goods or money under false pretences, if the evidence prove a larceny, the defendant notwithstanding may be convicted of false pretences; 7 & 8 G. 4, c. 29, 8. 53; upon an indictment for a misdemeanor, if the evidence prove a felony, the defendant shall not on that account be acquitted, unless the court think proper to discharge him from that indictment, and order him to be prosecuted for the felony; 14 & 15 Vict. c. 100, s. 12; upon an indictment against a principal in the first degree, if the evidence prove him to have been principal in the second degree, or upon an indictment against him as principal in the second degree, if the evidence prove him to have been principal in the first degree, he shall be convicted. Ante, p. 13.

There are also some cases, where the evidence proves only part of the charge laid, and the defendant shall be convicted of that part, and acquitted of the residue. Where a man is indicted for murder, he may be found guilty of manslaughter; -upon an indictment for burglary and larceny, he may be acquitted of the burglary, and found guilty of the larceny ;upon an indictment for breaking and entering a church, house, shop, or warehouse, and stealing therein, he may be acquitted of the breaking and entering, and convicted of the larceny ;-upon an indictment for stealing from a dwellinghouse to the value of five pounds, or some person therein being put in fear, the defendant may be convicted of the simple larceny ;-upon an indictment for robbery, the jury may acquit him of the robbery, and convict him of an assault with intent to commit it; 14 & 15 Vict. c. 100, s. 11; so in all cases of indictments for felony or misdemeanor, if the evidence prove only an attempt to commit it, the defendant may be found guilty of the attempt. Id. s. 9.

2. The Manner of proving the Matter in issue.

By Confessions.

Confession to a prosecutor, constable, &c.] A confession by the defendant, if obtained fairly, and without holding out any inducement to him to make it, is nearly the strongest evidence that can be given of the facts stated in such confession, against the party making it; and is abundantly sufficient of itself, without any confirmation, to warrant a verdict against him. 2 Hawk. c. 46, ss. 33. 39. But it is only evidence against the party making it, and not against others, 2 Hawk. c. 46, 8. 34, except perhaps in treason and conspiracy, in cases where the confession or declaration of one of the conspirators may amount to an overt act; see R. v. Watson, 2 Stark. 140, 141; and except upon indictments against the inhabitants of a parish or township, &c., where the admission of one is deemed evidence, though perhaps slight, against the parish or township generally. See R. v. Whitby Lower, 1 M. & S. 636. R. v. Hardwick, 11 East, 578. Even where one of three prisoners, on examination before a magistrate, stated that he and another of the prisoners committed the felony, and the other who was present did not deny it: Holroyd, J., held that this confession could not be given in evidence against the other prisoner, and he said that it had so been decided. R. v. Appleby et al., 3 Stark. 33. S. P. R. v. Swinnerton et al., Car. & M. 593. And where on the trial of two, a confession of one of them, affecting also the other, is to be given in evidence, the judge, if the confession be in writing, usually orders the officer, whose duty it is to read it, to read it in such a way as not to disclose the name of the other defendant; or if the confession be not in writing, many of the judges give a similar caution to the witness who proves it. This, however, is entirely discretionary.

A confession to be given in evidence, must be of the offence charged in the indictment, or of some matter relating to it: you cannot give in evidence any confession or declaration of the prisoner of his having committed similar crimes upon other occasions, or of his general disposition to commit them. R. v. Cole, 1 Ph. Ev. 170. R. v. Butler, 1 Car. & K. 221. But where there were two indictments against a prisoner, one for receiving tin, and the other for stealing iron, on the trial for receiving the tin, it was holden that the whole of a statement made by him might be given in evidence, although only part of it related to the tin, the rest relating to the iron. R. v. Mansfield, Car. & M. 140. And on the other hand, the prisoner may insist on the whole of his confession being stated, for the part omitted may qualify or control the meaning of the part stated. 2 Hawk. c. 46, s. 42.

Also, a confession to be given in evidence, must not have

been upon any examination upon oath: if upon taking the examination of a prisoner before a magistrate, the prisoner be examined upon oath, his examination cannot afterwards be read against him at the trial. 2 Hawk. c. 46, s. 37.

And see R. v. Sandys et al., Car. & M. 345. But where a prisoner was thus sworn by mistake, it being supposed that he was a witness, and, upon the mistake being discovered, the magistrate ordered the deposition to be destroyed, cautioned the party, and then took his examination: Garrow, B., held this latter examination to be receivable in evidence. R. v. Webb, 4 Car. & P. 564. Where a statement made by a prisoner upon oath, at a time when he was not under any suspicion, was tendered in evidence, Vaughan, B., held it to be admissible. R. v. Tubby, 5 Car. & P. 530. But in another case, upon a trial for administering poison, where it appeared that the prisoner and several other persons were examined upon oath before a magistrate upon the subject, no specific charge being at that time made against any person, but in the result the prisoner was committed for the offence: Gurney, B., refused to receive in evidence what the prisoner stated upon that occasion; the above case of R. v. Tubby, was cited, and he admitted he was disposed to agree with that decision, and mentioned a case of R. v. Walker, for forgery of a will, tried at the Old Bailey, where the prisoner's affidavit in the Ecclesiastical Court, was read in evidence against him; but he distinguished R. v. Tubby, from the present case, the examination in this case being taken at the time the prisoner was committed. R. v. Lewis, 6 Car. & P. 161. Another distinction, perhaps, might with propriety be taken, namely, between a case where the oath is merely voluntary, as the affidavit in Walker's case above mentioned, and where the party is in strictness bound upon his oath to speak the whole truth, as in an examination before a magistrate, or the like.

Without inducement.] If any inducement, by promise of favour or by threat, be held out to the prisoner,-as by telling him that he had better tell all he knew, R. v. Kingston, 4 Car. & P. 387, and see R. v. Garner, 18 Law J. 1 m., 2 Car. & K. 920, or that he had better tell where he had got the property, R. v. Dunn, 4 Car. § P. 543, "I will forgive you if you tell the truth," R. v. Hewett, Car. & M. 534," you had better split, and not suffer for all of them," R. v. Thomas, 6 Car. & P. 353, "it is of no use for you to deny it, for there are the man and boy who will swear they saw you do it," R. v. Mills, 6 Car. & P. 146, "it would have been better if you had told at first," R. v. Walkley & Clifford, 6 Car. & P. 175, "that unfortunate watch has been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle," R. v. Parratt, 4 Car. & P. 570, -or the like: any confession the prisoner may have been

thereby induced to make, cannot be given in evidence against him. 2 Hawk. c. 46, s. 36. And where a female servant was indicted for attempting to set fire to her master's house, and it appeared that the bed furniture and bedding of two rooms had been set on fire, and that a silver spoon and a few other things had afterwards been found in the sucker of the pump; and the master stated at the trial, that he said to the prisoner that if she did not tell the truth about the things that were found in the pump, (but saying nothing about the fire), he would send for the constable: Coltman, J., refused to hear what the prisoner said in answer. R. v. Hearn, Car. & M. 109. So, a reward offered by government for the discovery of the persons who committed a murder, with a promise of pardon to any but the person who struck the blow,-if it can be proved that it came to the knowledge of the prisoner before he made any statement, will prevent that statement from afterwards being given in evidence against him. See R. v. Boswell et al., Car. & M. 584. See R. v. Dingley et al., infra.

But nothing short of a threat, or of a promise of favour with respect to the offence charged against the prisoner, will have this effect. Where a prisoner, on being charged with robbing her mistress, voluntarily said "I shall confess, for I think it will be best for me," to which her mistress said "I do not know that," but neither sanctioned her hope or checked it: it was holden that a confession made by the prisoner after that, was admissible in evidence. R. v. Warren, 12 Shaw's J. P. 571. Where a magistrate, before taking a prisoner's statement, said to him "be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial," it was holden that a statement made by the prisoner after that, was admissible in evidence against him. R. v. Holmes, 1 Car. & K. 248. Where a confession was obtained from a boy of fourteen years of age, by questions put to him by the constable who apprehended him, and at a time when the boy had not had food for nearly a day, a majority of the judges held that the confession was receivable in evidence. R. v. Thornton, Ry. & M. 27. So, where a confession was obtained by means of questions from the magistrate, it was holden that it might be read in evidence against the prisoner at his trial; R. v. Ellis, Ry. & M. N. P. C. 432; yet such a mode of obtaining a confession is not very commendable, and ought to be avoided. Where a man, committed for murder, was visited by the chaplain of the gaol, who, in a long and very earnest discourse with him upon the necessity of repentance, and of confessing his sins, wrought so much upon the man's mind, that, in a subsequent interview with the gaoler, the prisoner said that he would tell him all about it; the gaoler told him not to say anything which he wished the magistrates not to know, as it would be his duty immediately to tell them of it; the prisoner said that he wished