clerk of arraigns], who prosecutes for our said lady the Queen in this behalf, doth the like. Therefore let a jury," &c., so proceeding with the award of the venire. Where a prisoner has pleaded guilty to a charge of felony, and sentence has been passed upon him, he cannot afterwards retract his plea and plead not guilty. Reg. v. Sell, 9 C. & P. 346.

In informations, and in indictments for not repairing roads and bridges, &c. where the defendant is allowed, ex gratia to appear by attorney, the general issue is regularly ingrossed, and filed with the proper officer. It is in form thus: "And the said J. S. by A. B. his attorney, cometh into court here, and, having heard the same indictment [or information] read, saith, that he is not guilty of the said premises in the said indictment [or information] above specified and charged upon him; and of this the said J. S. puts himself upon the country.” Afterwards, in making up the record, the similiter is added thus: "And J. N., who prosecutes for our said lady the Queen in this behalf, doth the like," if it be pleaded to an indictment at the assizes or sessions; but if to an indictment in the Queen's Bench, then thus: " And Christopher Robinson, Esquire, coroner and attorney of our said lady the Queen, in the court of our said lady the Queen before the Queen herself, who prosecutes for our said lady the Queen in this behalf, doth the like;" or if to an information, then thus: "And the said Attorney-General [or coroner and attorney] of our said lady the Queen, who prosecutes as aforesaid for our said lady the Queen, doth the like."

The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence, as stated in the indictment or information. On the other hand, the defendant may give in evidence, under this plea, not only every thing which nega

tives the allegations in the indictment, but also all matter of [ *95 ] excuse and justification.

If the defendant gives any evidence, whether written or parol, the counsel for the prosecution has the right of reply. Even if the evidence for the defendant be only to his character, it gives, in strictness, a right of reply, although it is seldom exercised in such case. (See post, p.152). If two prisoners are indicted jointly for the same offence, and one call witnesses, it seems that the counsel for the prisoner is entitled to a general reply; but if the offences are separate, and they might have been separately indicted, he can reply only on the case of the party who has called witnesses. Reg. v. Hayes, 2 M. & Rob. 155: Reg. v. Jordan, 9 C.& P. 119. Wherever the defendant gives evidence to prove new matter by way of defence, which the Crown could not foresee, the counsel for the prosecution is entitled to give evidence in reply, to contradict it. See Reg. u. Frost, 9 C. & P. 159.

[* 96 ]

116

*PART II.

EVIDENCE GENERALLY.

CHAPTER I.

WHAT ALLEGATIONS MUST BE PROVED.

WHERE the defendant pleads the general issue, not guilty, the prosecutor is obliged to prove at the trial every fact and circumstance stated in the indictment which is material and necessary to constitute the offence. So, where the replication or other pleading on the part of the prosecution consists of a general traverse of the defendant's pleading, the defendant must prove the facts thus traversed and put in issue. The parts of a pleading required to be thus proved may be considered under the following heads :

Time.]-The day and year on which facts are stated in the indictment or other pleading to have occurred are not in general material; and the facts may be proved to have occurred upon any other day previous to the preferring of the indictment. (See ante, p. 40). R. v. Charnock, Holt, 301; 1 Salk. 288; 9 St. Tr. 587—605, 542—552; Fost. 7, 8; 9 East, 157; 1 Phil. Ev. 203: R. v. Levy, 2 Stark. N. P. 458. To this rule, however, there are these exceptions: namely, First, that in all cases where bills of exchange, promissory notes, or other written instruments, not under seal, are pleaded, the date, if stated, must correspond with the date of the instrument when produced in evidence at the trial. Coxon v. Lyon, 2 Camp. 307, n. See Freeman v. Jacob, 4 Camp. 209. Secondly, as deeds may be pleaded either according to the date which they bear, or to the day on which they were delivered, if a deed produced in evidence bear date on a day different from that stated in the pleading, the party producing it must prove that it was in fact delivered on the day alleged in the pleading. Thirdly, if any time stated in a pleading is to be proved by matter of record, it must be correctly stated. See Grey v. Bennet, 1 T. R. 656: Pope v. Foster, 4 T. R. 590: Woodford v. Ashley, 11 East, 508: Rastall v. Stratton, 1 H. Bl. 49; 2 Saund. 291 b. In these several respects, any-the slightest-variance between the time so stated, and that appearing from the instrument or record when

produced, will, in felonies, be fatal; but, in misdemeanors, the variance may, in certain cases, be amended at trial. 9 G. 4, c. 15. (See post, p. 103). Fourthly, when the precise date of any fact is necessary to ascertain and determine with precision the offence charged, or the matter alleged in excuse or justification, any-the slightest-variance between the pleading and evidence in that respect will be fatal. And lastly, where time is of the essence of the offence, as in burglary or the like, the offence must be proved to have been committed in the night-time; although the day on which the offence is charged to have been *committed is immaterial, and it may be proved to have been [ *97 ] committed on any other day previous to the preferring of the indictment. In murder, also, the death must be proved to have taken place within a year and a day from the time at which the stroke is proved to have been given. 2 Hawk. c. 23, s. 90.

Place.]-It is not in general necessary to prove that the facts stated in the indictment or subsequent pleading occurred in the parish or place therein alleged; it is sufficient to prove that they occurred within the county, or other extent of the court's jurisdiction. 2 Hawk. c. 25, s. 84, (ante, p. 40.) But they must be proved to have been committed within the county, or other extent of the court's juriudiction, otherwise the defendant must be acquitted. (See ante, p. 38.) And where a forged bill of exchange was found upon J. S., who resided in Wiltshire, and had resided there about a year under a false name, but which bill bore date more than two years previously to its being found upon him, and at a time when he lived in Somersetshire; on an indictment against him for a forgery of the bill in Wiltshire, this was holden not to be sufficient evidence of the offence having been committed in that county, R. v. Crocker, 2 New Rep. 87: see R. & R. 99, n. But although the offence must be proved to have been committed in the county where the prisoner is tried, after such proof, the acts of the prisoner in any other county, tending to establish the charge against him, are properly admissible in evidence. 1 Ph. Ev. 206. If there be no such place as that stated in the indictment, it is immaterial. R. v. Woodward, 1 Mood. C. C. 323. The stat. 9 H. 5, st. 1, c. 1, s. 3, (see 7 H. 5. c. 18, and 18 H. 6, c. 12), which declared the indictment to be void in such a case, is now repealed; and a further ground for the objection is removed by the jury in criminal cases being now returned de corpore comitatus. 6 G. 4, c. 50, s. 20. An indictment alleged a highway robbery to have been committed in the parish of St. Thomas Pensford, but the witness called it the parish of Pensford, upon which it was objected that there was no proof that there was in the county any such parish as that laid in the indictment: Littledale, J., before whom the indictment was tried, said, that the objection was not valid, and that he had once reserved a case for the opinion of the judges upon the very point, and a great majority of the judges

held that it was not incumbent upon the prosecutor to prove affirmatively the existence within the county of the parish laid in the indictment, and expressed a doubt how they should hold, even where it was proved negatively for the prisoner, that no such parish existed. R. v. Dowling, Ry. & M. N. P. 433.

To the above rule, as to the parish and place being immaterial, there are, however, these exceptions: namely, First, that if the statute upon which the indictment is framed give the penalty to the poor of the parish in which the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. Secondly, upon an indictment against a parish for not repairing a road, the part of the road out of repair must be proved to be within the parish; and the same in all other cases in which the place where the fact occurred is a necessary ingredient in the offence. Thirdly, if a place mentioned in pleading be stated as part of the description of a written instrument, or is to be proved by matter of record, any-the slightest-variance between the place as stated, and that appearing from the written instrument or record when produced, will, in felonies, be fatal: see Pitt v. Green, 1 East, 188: Pool v. Court, 4 Taunt. 700: Goodtitle v. Walter, Id. 761: [ *98] Morgan v. Edwards, *6 Taunt. 394: Goodtitle v. Lamnitman, 2 Camp. 274; but, in misdemeanors, the variance may be amended at the trial. 9 G. 4. c. 15. (See post, p. 103). And lastly, where the place is stated as matter of local description, and not as venue merely, the slightest variance between the description of it in the indictment and the evidence will be fatal; even though the injury be partly local, and partly transitory; for, the whole being one entire fact, the local description becomes descriptive of the transitory injury. R. v. Cranage, 1 Salk. 385; 2 Stark. Ev. 1571. Thus, for instance, on an indictment for stealing in the dwelling-house, &c., for burglary, for forcible entry, or the like, if there be the slightest variance between the indictment and evidence in the name of the parish or place where the house is situate, or in any other description given of it, the defendant must be acquitted. The rule is the same, in this respect, in criminal cases as in civil actions; and, where, in an action for non-residence, the parish was styled in the declaration St. Ethelburg, and the real name appeared in evidence to be St. Ethelburga, it was holden a fatal variance. Wilson v. Gilbert, 2 B. & P. 281. So, in an action for a nuisance in erecting a weir, if it be described in the declaration to be at H., and be proved to be at a lower part of the same water, called T., the variance is fatal. Shaw v. Wrigley, 2 East, 500. With reference to the description of the parish, there are several apparently conflicting authorities, which can only be reconciled upon the principle that it is sufficient to describe the parish either by its strict legal or popular name, provided the description be such as cannot mislead. Thus where, in ejectment,

the premises were alleged to be in Farnham, and proved to be in Farnham Royal, it was holden not to be a fatal variance, unless it were shewn that there were two Farnhams. Doe v. Salter, 13 East, 9. Where the premises were laid to be in Westbury, and it was proved that there were two parishes of that name in the county, Westbury-upon-Trim and Westbury-upon-Severn, the objection of variance was overruled, because in common parlance the addition was not used, and the description could not mislead. Doe v. Harris, 5 M. & Sel. 326. So, where premises were described as situate in the parish of Lambeth, the real name of the parish being St. Mary, Lambeth, though usually called Lambeth, the variance was holden to be immaterial. Kirkland v. Pounset, 1 Taunt. 570: R. v. Glossop, 4 B. & Ald. 619. In Taylor v. Willians, 11 B. Moore 448; 3 Bingh. 449, the parish was described as the parish of St. James, in the county of Middlesex, and it appeared, from acts of Parliament, that there were two parishes of St. James, the one St. James, Clerkenwell, and the other, that laid in the declaration, sometimes called St. James, and sometimes St. James in the liberties of Westminster; upon which ground the description was holden sufficient. And where, in ejectment, the premises were alleged to be in the parish of St. Luke, in the county of Middlesex, and there appeared to be two parishes of St. Luke, the one St. Luke, Chelsea, and the other, that in which the premises were, sometimes called St. Luke, Old Street, but more commonly St. Luke, Middlesex; the description was holden sufficient, as it could not mislead. Doe v. Carter, 2 Y. & J. 492. A prisoner was indicted at the Central Criminal Court for burglary in a house stated in the indictment to be s'tuate at the parish of Woolwich. The prosecutor stated that the correct name of the parish was St. Mary, Woolwich; but it being called in the Central Criminal Court Act, 4 & 5 W. 4, c. 36, s. 2, the parish of Woolwich, the indictment was therefore held sufficient. Reg. v. St. John, 9 C. & P. 40. But where, in an action of trespass for breaking a house in the [99] parish of Clerkenwell, there appeared to be two parishes in Clerkenwell, St. James and St. John, and the house was situate in the the former, Gibbs, C. J., nonsuited the plaintiff. Taylor v. Hooman, 1 B. Moore, 161; 1 Holt, 523. And where the premises were laid in the parish of St. George the Martyr, Bloomsbury, and were proved to be in that of St. George Bloomsbury, there being two parishes of St. George in Bloomsbury, the one called St. George the Martyr, and the other St. George Bloomsbury, the plaintiff was nonsuited. Harris v. Cooke, 2 B Moore, 587; 8 Taunt. 539.

Where a parish is situated in two counties, it is sufficient to describe it as being in the county in which the offence is committed; R. v. Perkins, 4 C. & P. 363; unless the offence be of a local nature, in which case it must be alleged to have been committed in that part of the parish which