be sufficient. R. v. Hunt, 2 Camp. 584. So where an indictment charges that the defendant did, and caused to be done a certain act, as forged and caused to be forged, it is sufficient to prove either one or the other. Per Lord Mansfield, R. v. Middlehurst, 1 Burr. 400. Upon an indictment for obtaining money under false pretences it is not necessary to prove the whole of the pretence charged; proof of part of the pretence, and that the money was obtained by such part, is sufficient. R. v. Hill, Russ. & Ry. 190. So upon an indictment for perjury, it is sufficient if any one of the assignments of perjury be proved. R. v. Rhodes, 2 Raym. 886. So on an indictment for conspiring to prevent workmen from continuing to work, it is sufficient to prove a conspiracy to prevent one workman from working. R. v. Bykerdike, 1 M. & Rob. 179. As to divisible averments in charges involving an assault, see tit. Assault. With regard to the extent of the property as to which the offence has been committed, the averments in the indictment are divisible. *85] *Whatever quantity of articles may be stated in an indictment for larceny to have been stolen, the prisoner may be convicted if any one of those articles be proved to have been feloniously taken away by him. Where the prisoner was indicted under the 7 Geo. 3, c. 50 (repealed), for that he, being a post-boy and rider employed in the business of the post-office, feloniously stole and took from a letter a bank post bill, a bill of exchange for 100l., a bill of exchange for 401., and a promissory note for 20., and it was not proved that the letter contained a bill of exchange for 1007.; the prisoner being convicted, it was held by the judges, that the statement in the indictment not being descriptive of the letter, but of the offence, the conviction was right. R. v. Ellins, Russ. & Ry. 188. In the same manner upon an indictment for extortion, alleging that the defendant extorted twenty shillings, it is sufficient to prove that he extorted one shilling. Per Holt, J., 1 Lord Raym. 149. So upon an indictment on the 9 Ann. c. 14, s. 5 (repealed), for winning more than 10%. at one sitting, Lord Ellenborough held, that the defendant might be convicted of winning a less sum than that stated in the indictment, though it would have been otherwise if the prosecutor had averred that the defendant had won bills of exchange of a specified amount. R. v. Hill, 1 Stark. N. P. 359. Where in an indictment for embezzling it was averred that the prisoner had embezzled divers, to wit, two bank notes for 11. each, and one bank note for 21., and the evidence was, that he had embezzled one pound note only, this was held sufficient. R. v. Carson, Russ. & Ry. 303. So where a party is charged with having committed the offence in two capacities, it would seem that proof of his employment in either is sufficient. Where a party was indicted in the first and third counts, as a person employed in sorting and charging letters in the post-office," and it appeared that he was only a sorter and not a charger of letters, the judges were inclined to think that he might have been convicted on these counts by a special finding, that he was a sorter only. R. v. Shaw, 2 East, P. Č. 580; see post, tit. Post-office. So an indictment charging several persons with an offence, any one of them may be convicted. But they cannot be found guilty separately of separate parts of the charge. Where A. and B. were indicted under the statute of Anne for stealing in a dwelling-house to the value of 67. 10s., and the jury found A. guilty as to part of the articles to the value of 6l., and B. guilty as to the residue, the judges held, that judgment could not be given against both; but that on a pardon or nolle prosequi as to B., it might be given against A. R. v. Hempstead, Russ. & Ry. 344. The same is the case when, as sometimes occurs, more than one intent is laid in the indictment; in which case it is sufficient to prove any one that constitutes an offence. Thus on an indictment charging the defendant with having published a libel of and concerning certain magistrates, with intent to defame those magistrates, and also with a malicious intent to bring the administration of justice into contempt; Bayley, J., informed the jury, that if they were of opinion that the defendant had published the libel with either of those intentions, they ought to find him guilty. R. v. Evans, 3 Stark. N. P. 35, 3 E. C. L. So where the indictment charged the prisoner with having assaulted a female child, with intent to abuse and carnally to know her, and the jury found that the prisoner assaulted the child with intent to *abuse her, but negatived the intention carnally to know her, [*86 Holroyd, J., held, that the averment of intention was divisible, and the prisoner received sentence of imprisonment for twelve months. R. v. Dawson, 3 Stark. N. P. 62, 3 E. C. L. Where an intent is unnecessarily introduced in an indictment, it may be rejected. R. v. Jones, 2 B. & Ad. 611, 22 E. C. L. Averments which need not be proved. By a strange inconsistency it was necessary under the old law to aver with great particularity both time and place; but in no case except where the offence was limited in respect of time or place need it have been proved as laid. R. v. Townley, Fost. 7; R. v. Levy, 2 Stark. N. P. 458, 3 E. C. L.; R. v. Aylett, 1 T. R. 63. Whether, where value was not of the essence of the indictment, it was ever necessary to aver it, is doubted by Hawkins (Hawk. P. C. bk. 2, c. 25, s. 75), " for any other purpose than to aggravate the fine." * * * Now by the 14 & 15 Vict. c. 100, s. 24, "no indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or a day that never happened, nor for want of the statement of the value,' or price of any matter or thing, or the amount of damage, injury, or spoil in any case where the value or price, or the amount of * * * 1 An indictment for burglary with intent to steal need not allege value of property. Green v. State, 21 Tex. App. 64. damage, injury, or spoil is not of the essence of the offence." By the above section also it is no longer necessary to conclude an indictment contra formam statuti. Castro v. The Queen, 6 App. Cas. 229; 50 L. J., H. L. 417. Notwithstanding these provisions, indictments frequently contain averments of time,' place, and value, although they be not, as the phrase is, of the essence of the offence. But the statement of them in no way restricts the proof which may be given under the indict ment. Amendment. The nature and intent of powers of amendment will be considered under the head of Practice. It is only necessary to notice them here, because the practical effect of them is that many variances between the evidence and the offence charged in the indictment are passed over without notice; it not being considered worth while to take an objection which would only produce an amendment. But the result is frequently to remove the offence for which the accused is ultimately tried still further from that with which he is apparently charged. Effect of the above rules and provisions. It is evident that the effect of the above rules and provisions is materially to affect the nature of the issues raised by criminal pleadings. Frequently, indeed generally, a single count in an indictment traversed by a single plea of not guilty is capable of raising several issues more or less distinct from that which appears upon its face. No doubt the prosecutor will not be allowed to inquire into several felonies at the same time merely because they all fall within the words of the indictment; he will in general be put to his election upon which he will proceed. See *post, tit. Practice. But what is meant is that there may be sey*87] eral issues arising out of one count, any one of which may be selected for inquiry. In considering, therefore, what evidence is proper to the issue in criminal cases, we must always bear in mind. that we are to look for the issue not in the mere words of the indictment, but coupling those words with the rules and provisions which we have just explained. SUBSTANCE OF THE ISSUE TO BE PROVED AS LAID. Bearing in mind what has just been said as to what the issue in criminal cases really is, the substance of the issue must be proved as laid. What follows must, of course, be taken subject to the powers of amendment above referred to, and it must also be recollected that in certain offences descriptive averments need only be of the most general kind by the provisions of statutes, other than those general statutes already alluded to, which will be noticed under the several offences to which they relate. But if the latitude thus allowed should not 1 "At or prior to" is sufficient allegation as to time when the act is continuous. People v. Buddensiek, 4 N. Y. Crim. Rep. 230. be taken advantage of in drawing the indictment, or the court should refuse, or not have the power to amend, then the following decisions become important.1 The descriptive averments in an indictment are either of property, person, time, place, value, or mode of committing an offence. The decided cases in each of these averments will be given in their order. Averments descriptive of property. Most of the cases of variance in the allegation and proof of property have occurred with respect to animals. In a case where the prisoner was indicted for stealing four live tame turkeys, it appeared that he stole them alive in the county of Cambridge, killed them there, and carried them into Hertfordshire, where he was tried. The judges held that the word live in the description, could not be rejected as surplusage, and that as the prisoner had not the turkeys in a live state in Hertfordshire, the charge as laid was not proved, and that the conviction was wrong. And Holroyd, J., observed that an indictment for stealing a dead animal, should state that it was dead; for upon a general statement that a party stole the animal, it is to be intended that he stole it alive. R. v. Edwards, Russ. & Ry. 497. On an indictment upon the 15 Geo. 2, c. 34 (repealed), which mentioned both cows and heifers, it was held that a beast two years and a half old, which had never had a calf, was wrongly described as a cow. R. v. Cook, 2 East, P. C. 616; 1 Leach, 105. The prisoner being indicted under the 9 Geo. 1, c. 22 (repealed), 1 In general the affirmative of the issue is to be proved, but when the defendant is charged with an omission to do an act enjoined by law, such omission must be proved or some evidence given of it, although it involves the proof of a negative. Commonwealth v. James, 1 Pick. 375; Jackson v. Shaffer, 11 Johns. 513; Hartwell v. Root, 19 Johns. 345. If the charge consist in a criminal neglect of duty, as the law presumes the affirmative, the burden of proof of the contrary is thrown on the other side. But in other cases, as where the negative does not admit of direct proof, or the facts lie more immediately within the knowledge of the defendant, he is put to his proof of the affirmative. Story, J., in United States v. Hayward, 2 Gall. 284. On an indictment for selling liquor without license, it lies on the defendant to prove his license. Genning v. State, 1 McCord, 573. [A statute dispensing with certain circumstantial allegations does not affect the evidence necessary to establish the inculpatory facts. White v. State, 11 Tex. App. 476.] When the defence is that the prisoner was under the age of presumed capacity, the onus lies upon the prisoner; if the age can be ascertained by inspection, the court and jury must decide. State v. Arnold, 13 Ired. 184. No general rule can be laid down respecting the comparative value of positive and negative testimony. Denham v. Holeman, 25 Ga. 182. If one witness of equal knowledge and credibility swears positively to a fact, and many swear negatively that they did not see or know the fact, the one witness swearing positively and not contradicted is to be believed in preference to the many. Johnson v. State, 14 Ga. 55; Coles v. Perry, 7 Tex. 109. The testimony of a witness, having a full opportunity of knowing that a person did not strike a blow, is affirmative evidence and entitled to weight as such. Coughlin . People, 18 Ill. 266. When one witness swears that two men on horseback met, passed each other, and both wheeling had an angry conversation, and another witness swears that he saw the two men meet and pass each other, and that they did not wheel or converse together, and the judge charges that when one witness swears affirmatively and another negatively, the affirmative must prevail, such charge is inapplicable and erroneous. State r. Gates, 20 Mo. 400. On the trial of an indictment for selling liquors without a license, the docket and minutes of the County Commissioners before their records are made up, are admissible in evidence for the prosecution, and if no license appear it is prima facie that he had no license. Commonwealth v. Kimball, 7 Metc. 304. S. for killing "certain cattle, to wit, one mare;" the evidence was, that the animal was a colt, but of which sex did not appear; the prisoner being convicted, the judges, on a case reserved, were of opinion that the words, "a certain mare," though under a videlicet, were not surplusage, and that the animal proved to have been killed, being a colt generally without specifying its sex, was not sufficient to support a charge of killing a mare. R. v. R. v. Chalkley, Russ. & Ry. 258. But where a statute mentions only the grown animal, the young is included, and it is no variance to describe the young animal as if it had been the grown animal. Thus, upon an indictment on the statute of 1 Edw. 6, c. 12, which mentioned the words "horses, geldings, and mares," it was held, that foals and fillies were included in those words, and that evidence of stealing a mare filly, supported an indictment *for stealing a mare. R. v. Welland, Russ. & Ry. 494. Prob*88] ably every one of these cases would now be amended.1 1 An indictment for coining, alleged possession of a die made of iron and steel. In fact, it was made of zinc and antimony. The variance was held fatal. Dorsett's Case, 5 Rog. Rec. 77. An allegation in an indictment, which is not impertinent or foreign to the cause must be proved; though a prosecution for the offence might be supported without such allegation. United States v. Porter, 3 Day's Cases, 283. The court will be more strict in requiring proof of the matters alleged in a criminal than in a civil case. Id. In larceny of a gray horse, proof that it was a gray gelding, the variance held fatal. Hooker v. State, 4 O. 350. The acceptation of the name of property governs the description. Case of Reed et al., 2 Rog. Rec. 168; Commonwealth v. Wentz, 1 Ash. 269. A charge that defendant set up and kept a faro bank, at which money was bet, lost, and won, is not sustained by proof that bank notes were bet, lost, and won. Pryor v. Commonwealth, 2 Dana, 298; see case of Stone et al., 3 Rog. Rec. 3; State v. Cassel, 2 H. & G. 407. [Where in an indictment the character of money received is set forth, failure to prove such money is a fatal variance. Williams v. People, 101 Ill. 382.] An indictment for stealing a "horse" is not sustained by evidence of the theft of a "gelding." Mashall v. State, 31 Tex. 471; Gholstan v. State, 33 Id. 342. Property pledged and in the possession of the pledgee may be described as the property, and in the possession of the pledgor. Commonwealth v. O'Hara, 10 Gray, 469. An indictment for stealing the wearing apparel of a married woman, furnished by the husband, and which charges it to be the property of the wife cannot be sustained during the life of the husband. State v. Hays, 21 Ind. 288. An indictment for stealing "bank bills" declaring their value, in effect charges the bills to be genuine and upon solvent banks. Munson v. State, 4 Gr. 483. "A package of money containing the sum of sixty dollars in bank bills," held that there was no repugnancy. Bank bills which are current as a medium of exchange are money. State v. Kube, 20 Wis. 217. In an indictment for larceny of different articles of property described, it is not necessary to use the connecting word "and" between the different articles. State v. Bartlett, 55 Me. 200. [Under the Louisiana statute the character of the money stolen need not be described in an indictment for larceny. State v. King, 37 La. An. 91.] In arson not necessary to aver value of property burned. Commonwealth v. Hamilton, 15 Gray, 480. As to averment of ownership: see Reed v. Commonwealth, 7 Bush, 641; Commonwealth v. Lawless, 103 Mass. 425; State v. Bell, 65 N. C. 313; Commonwealth v. Bowers, 3 Brewst. 350. In an indictment for arson, the allegation of the ownership of the building burned is a part of the description of the offence; it must be direct and certain, and is insufficient if left to rest upon conjecture, or to be made out by argument. People v. Myers, 20 Cal. 76. [But a slight variance in regard to the ownership and value of the property within the building, which a Massachusetts statute requires to be set forth was held not to be a fatal variance. Commonwealth v. Brailey, 134 Mass. 527.] In arson true name of corporation must be stated. McGary v. People, 45 N. Y. 153. An indictment for adultery against a married woman should set forth the name of her husband. Commonwealth v. Corson, 4 Clark, 271. An indictment for receiving stolen property, need not give the name of the thief. State v. Smith, 37 Mo. 58. In arson to defraud insurance company, mere averment of company named insufficient. People v. Schwartz, 32 Cal. 160. Name |