delivering the same, or to any other person, and such part shall have been returned accordingly."

§ 288. It is often allowable to omit from the indictment, and it ? 232 is seldom necessary to prove with precision, allegations of quality; or, in other words, those allegations which describe the mode in which certain acts have been done. Thus, it is unnecessary in any indictment for murder or manslaughter to set forth the manner in which, or the means by which, the death of the deceased was caused; but it is sufficient to charge in every indictment for murder that the defendant did felonously, wilfully, and of his malice aforethought kill and murder the deceased, and in every indictment for manslaughter, that he did felonously kill and slay him.3 Should, too, an indictment for homicide unnessarily allege the means of death, it would be quite sufficient for the proof to agree with the allegation in its general character, without precise conformity in every particular. So, if the charge be of a felonous assault with a staff, and the proof be of such an assault with a stone; or if a wound, alleged to have been given with a sword, be proved to have been inflicted by an axe; or if a pistol be stated to have been loaded with a bullet, and it turns out to have been loaded with some other destructive material, the charge is substantially proved, and no variance occurs."

§ 289. The fourth general rule which regulates the law of

2 233

1 14 & 15 V., c. 100, ? 18.

2 This term includes inquisitions taken before coroners, R. v. Ingham, 33 L. J., Q. B. 183; 5 B. & S. 257, S. C.

324 & 25 V., c. 100, 26.

R. v. Oxford, 9 C. & P. 525, 548. See R. v. Hughes, 5 C. & P. 126, the marginal note of which is calculated to mislead.

1 East, P. C. 341; R. v. Martin, 5 C. & P. 128, per Parke, B.; 1 Russ. C. & M. 557. See further, as to the law prior to the passing of Ld. Campbell's Act in 1851, R. v. M'Conkey, Ir. Cir, R. 77, per Torrens, J.; R. v. Waters, 7 C. & P. 250; 1 Moo. C. C. 457, S. C.; R. v. Culkin, 5 C. & P. 121; R. v. Thompson, 1 Moo. C. C. 139; 1 Lew. C. C. 193, S. C.; R. v. Kelly, 1 Moo. C. C. 113, 1 Lew. C. C. 194, S. C.; 2 Hale, 185, 186; R. v. Mosley, 1 Moo. C C. 97; 1 Lew. C. C. 189, S. C.; R. v. Tomlinson, 6 C. & P. 370, per Patteson, J.; R. v. Turner, 1 Lew. C. C. 177, per Parke, B.; R. v. Warman, 1 Den. 183.

variance, is that allegations of matter of essential description should be proved as laid. It is impossible to explain with precision the meaning of these words; and the only practical mode of understanding the extent of the rule is to examine some of the leading decisions on the subject, and then to apply the reasoning or ruling contained therein to other analogous cases, always bearing in mind that the judges have large powers of granting amendments both in civil and in criminal proceedings.' And first, with respect to the criminal law, it is now clearly established, that the name or nature of the property stolen or damaged is matter of essential description. Thus, for example, if the charge be one of firing a stack of hay, and it turns out to have been a stack of wheat; or if a man be accused of stealing a drake, and it is proved to have been a goose, or even a duck, the variance is fatal, unless an amendment be permitted. A diverting instance of the application of this rule, and one which forcibly illustrates the advantage of allowing amendments, occured some years back at the assizes for Hertford. A man was charged with stealing "a slop." The theft was clearly proved; but, when called upon for his defence, the prisoner exclaimed, "Why, my lord, it ain't no slop." "You hear what he says," observed the judge, addressing the jury. "Is it a slop, gentlemen ?" "No, my lord, it's a smock," said one of the jurymen. "Then you must acquit the prisoner." He was acquitted; but the grand jury not being discharged, a second indictment was preferred and found, charging him with stealing a smock." Nothing daunted the prisoner now pleaded autrefois acquit, and called several witnesses to prove that the article he had stolen was in fact a slop, and this question was submitted to a second jury with much gravity by the learned judge.3

66

$290. With respect to the description of animals, the stealing of which is made a statuable offence, it would seem to be sufficient to use the generic term which includes the whole species, even though the Act should employ more specific language. This

1 See ante, ?? 220-225, 249.

2 Under 1 of 14 & 15 V., c. 100, cited ante, 249.

3 29 Law Mag. 12, 13.

doctrine has been recognised by the judges in a case of sheep stealing. The words of the Act' on which the indictment was founded, were, any "ram, ewe, sheep, or lamb;" the charge was of killing a sheep, with intent to steal the carcase; the proof was, that a sheep was killed, but the sex could not be discovered. Upon this, the prisoner's counsel contended, that the jury could not presume that the animal was a wether, and that, if it was an ewe, the indictment was bad; but a great majority of the judges, while they admitted that the first proposition was sound law, held that the word "sheep" was a generic term, which included equally rams, ewes, and wethers, and the conviction was accordingly confirmed. So, an indictment for stealing a sheep will now be supported by evidence of killing a lamb. Whether a charge of stealing a horse would be sustained by proof of stealing a gelding, a mare, a colt, or a filly,' is by no means clear; though, if the principle be carried out to its legitimate extent, it would seem that no variance would in such case arise.

§ 291. On prosecutions for forgery under the old law, great 234A nicety used to be required in describing the instrument forged; and while that offence continued to be a capital crime, many a forger had reason to rejoice that an excessive minuteness of de

17 & 8 G. 4, c. 29, 25. The same words are now contained in 24 & 25 V., c. 96, 10.

2 R. v. M'Culley, 2 Moo. C. C. 34; 2 Lew. C. C. 272, S. C.; R. v. Bannam, Crawf. & D. C. C. 147. These cases overrule R. v. Puddifoot, 1 Moo. C. C. 247.

3 * R. v. Spicer, 1 C. & Kir. 699; 1 Den. C. C. 82, S. C., overruling R. v. Loom, 1 Moo. C. C. 160. The decision in R. v. Loom was under the repealed Act of 15 G. 2, c. 34, which, like the Act of 7 & 8 G. 4, c. 29, 25, specified lambs as well as sheep. In an old Act of 25 H. 8, c. 13, 2, 13, which is now repealed by 19 & 20 V., c. 64, and which prohibited persons from having above 2000 sheep, it was expressly enacted, that "lambs under the age of one whole year shall not be adjudged for sheep prohibited by the statute." The special insertion of such a clause leads rather to an inference, that, without it, the mention of the grown animal would have included the young. See next note.

These are the words used in 24 & 25 V., c. 96, 10. Under an old Act against horse-stealing, which only mentioned "horses, geldings, and mares,” it was held that proof of stealing a filly supported an indictment for stealing a mare, R. v. Welland, R. v. R. 494.

scription afforded an opportunity of escape from the gallows by causing a variance between the allegations and the proofs. The law, however, is now happily amended, and the punishment for forgery has become less severe but more certain. The forger is no longer sentenced to death on conviction, but he seldom can claim an acquittal on the ground of some senseless technicality. The Act of 1861, which consolidates the law on this subject,' expressly enacts, in § 42, that, "in any indictment for forging, altering, offering, uttering, disposing of, or putting off, any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof without setting out any copy or fac simile thereof, or otherwise describing the same or the value thereof." A similar laxity of description is permitted, whenever any person is indicted for engraving or making " any instrument, matter, or thing," or for using or unlawfully possessing any plate, material, or paper on which any instrument, matter, or thing shall have been engraved, made, or printed.'

4

§ 292. In all indictments, too, for offences under the Debtors' 234B Act, 1869, or the Bankruptcy Act, 1883, it is sufficient to "set forth the substance of the offence charged, in the words of the Act specifying the offence, or as near thereto as circumstances admit, without alleging or setting forth any debt, act of bankruptcy, trading adjudication, or any proceeding in, or order, warrant or document of, any court acting under the Bankruptcy Act, 1883." The Irish Debtor's Act, 1872, contains a similar provision."

6

§ 293. The name of the person injured, and, indeed, the name of ¡ 235

1 24 & 25 V., c. 98.

2 24 & 25 V., c. 98, 43.

3 32 & 33 V., c. 62, 19; amended by 46 & 47 V., c. 52, 149, subs. 2. 46 & 47 V., c. 52, % 31, 163–167.

5 35 & 36 V., c. 57, ¿ 19, Ir.

See, as to the old law on this subject, R. v. Biss, 8 C. & P. 773; 2 Moo. C. C. 93, S. C.; R. v. Robinson, Holt, N. P. R. 595; R. v. Campbell, 1 C. & Kir. 82; R. v. Waters, 1 Den. 356; 2 C. & Kir. 864, S. C.; R. v. Willis, 1 Den. 80; R. v. Stroud, 1 C. & Kir. 187; 2 Moo. C. C. 270, S. C.; R. v. Sweeny, Ir. Cir. R. 366; R. v. Smith, 1 Moo. C. C. 402; 6 C. & P. 151, S. C.; R. v. Evans, 8 C. & P. 765; R. v. Sheen, 2 Id. 634; R. v. Hogg, 2 M. & Rob. 380.

3

every person necessarily mentioned in the indictment,' is generally matter of essential description, and must formerly have been proved with a precision which was but little calculated to engender any ardent feelings of respect for the criminal law. In the present day, however, there can be little room for doubt, that the court would in every case of mere misnomer 2 direct an amendment to be made almost as a matter of course; but still a question may occasionally arise as to what the nature of the amendment ought to be. The following rules, therefore, may furnish some guide on this subject :1st. If the name of the injured party cannot be proved, it will suffice to describe him as a person "whose name is to the jurors unknown." 2nd. It is not necessary to describe a party by what is, in strictness, his right name; but it will be sufficient to state any name he has assumed, or by which he is generally known, and the omission of a second christian name has been frequently held to be immaterial. 3rd. An illegitimate child is not entitled to the surname either of the mother or of the putative father, but can only acquire a surname by reputation.' 4th. The proper mode of describing a peer is by his christian name and rank in the peerage; but the christian name may be omitted; and it seems that under the degree of a duke, a nobleman may be designated by the simple title of "lord." " 5th. Foreigners of rank may be described by

6

8

1 See, as to the old law on this subject, R. v. Dunmurry, Ir. Cir. R. 312; R. v. Walker, 3 Camp. 264; R. v. Bush, R. & R. 372.

2 See R. v. Welton, 9 Cox. 297.

3 Under 1 of 14 & 15 V., c. 100, cited ante, 249.

See R. v. Welton, 9 Cox, 297.

5 R. v. Norton, R. & R. 510. See R. v. Williams, 7 C. & P. 298. In R. v. Toole, Dear. & Bell, 194; 7 Cox, 266, S. C., where the only proof of the prosecutor's christian name was the statement of a witness. who said that he had seen the prosecutor sign the charge against the prisoner, and the deposition before the magistrates, and that the signatures of those documents, which the witness identified, corresponded with the name laid in the indictment, the court held that the evidence was sufficient.

Att-Gen. v. Hawkes, 1 Tyr. 3; R. v. Berriman, 5 C. & P. 601; R. v.—, 6 id. 408; Williams v. Bryant, 5 M. &. W. 447; 2 Russ. C. & M. 795-797.

But see R. v. M'Anerney, Ir. Cir. R. 270, per Crampton, J.

7 R. v. Waters, 1 Moo. C. C. 457; 7 C. & P. 250, S. C.; R. v. Clark, R. & R. 358.

* R. v. Frost, Pearce & D. 474.

George

9 R. v. Pitts, 8 C. & P. 771, where the prosecutor was described as Talbot Rice, Lord Dynevor," instead of "George Talbot, Baron Dynevor;"