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3 and 4 W. and M., c. 9, s. 5, for stealing goods "of John Powell, then being in a lodging-room in his dwelling-house, let by contract by Elizabeth his wife." The statute, in describing the offence, took no notice of the person by whom the goods or lodging might have been let. The judges held the conviction right. They were inclined to think it was unnecessary to state by whom the lodging was let; and they were unanimously of opinion that the letting might be stated either according to the fact, or the le[ *101] gal operation. Healey's case, 1 Moo. C. C. 1 (a). So where an intent is unnecessarily introduced it may be rejected. Thus an indictment under the 9 Geo. 4, c. 41, s. 30, (regulating the treatment of insane persons) charged that the defendant, a surgeon, knowingly, and with intention to deceive, signed a certificate required by the act without having visited and personally examined the patient (which of itself constituted an offence under the statute.) The jury negatived the intention to deceive, but found the defendant guilty, subject to the opinion of the court, who were clearly of opinion that the averment of intention was surplusage, and might be rejected. Jones's case, 2 B. and Ad. 611 (b). Where the prisoner was indicted on the 4 G. 2 for stealing lead "belonging to the Rev. C. G., clerk, and then and there fixed to a certain building called Hendon church;" the judges held that laying the property in the vicar was good. But many of them thought that the better way of laying the case would be to allege the lead to have been "fixed to a certain building, being the parish church," &c., without stating the property to be in any one. Buller, J., thought that charging it to be property, was absurd and repugnant; property (in this respect) being only applicable to personal things, and that it should be charged to be lead affixed to the church, or to a house belonging to such a person; and that the allegation as to property in this indictment should be rejected as surplusage. Hickman's case, 2 East, P. C. 593; 1 Moo. C. C. 2, (n.) (c), vide post.

Where the averment in the indictment is sensible and material it must be proved as laid. See cases, ante, p. 98.

Averments as to time.] Although an indictment, not alleging any time at which the offence was committed would be bad, Hawk. P. C. b. 2, c. 25, yet it is not necessary to prove the time as laid, unless that particular time is material. Phill. Ev. 861, 8th ed. Thus even in treason, if the overt acts be laid on one certain day, evidence of them after that day is admissible. Townley's case, Foster, 8. So on an indictment for a misdemeanor, containing several counts, alleging several misdemeanors of the same kind on the same day, the prosecutor may give evidence of such misdemeanors on different days. Levy's case, 2 Stark. 458 (d). And where a statute makes an offence committed after a given day triable in the county where the party is apprehended, and authorizes laying it as if committed in that county, but does not vary the nature or character of the offence, it is no objection that the day laid in the indictment, is before the day mentioned in the statute, if the offence was in fact committed after that day (1). Treharne's case, 1 Moo. C. C. 298 (e).

(1) State G. S., 1 Tyler, 295. State v. Haney, 1 Hawks, 460. Jacobs v. the Commonwealth, 5 S. & R. 316. U. States v. Stevens, 4 Wash. C. C. R. 547. Commonwealth v. Harrington, 3 Pick. 26. But in perjury, charged to have been committed at the Circuit Eng. Com. L. Rep. xxii. 146. (c) 2 Eng. C. C. 2. (d) Eng. Com. L. Rep. iii. 431. (e) 2 Eng. C. C. 298.

(a) 2 Eng. C. C. 1.

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Where a time is limited for preferring an indictment, the time laid should appear to be within the time so limited. Brown's case, M. and M. 163 (a). Also in an indictment for murder, the death should be laid on a day within a year and a day from the time at which the stroke is alleged to have been given. Archb. C. P. 38, 7th ed.

Averments as to place.] In general it is sufficient to prove that *the offence was committed in the county in which it is laid to [*102] have been committed, and a mistake in the particular place in which an offence is laid, will not be material. Hawk. P. C., b. 2, c. 25, s. 84; Phill. Ev. 864, 8th ed.; 2 Russ. 716. And although the offence must be proved to have been committed in the county where the prisoner is tried, yet after such proof the acts of the prisoner in any other county, tending to establish the charge against him, are admissible in evidence, 1 Phill. 206. In an indictment for robbery the offence was laid in the parish of St. Thomas, Penford, in the county of Somerset, and it was objected for the prisoner that there was no proof of there being such a parish, but Littledale, J., overruled the objection; he said that he once reserved a case from the Oxford circuit on this ground, and that a great majority of the judges held that it was not necessary to prove affirmatively for the prosecution, that such a parish as that laid in the indictment existed within the county, and that they expressed a doubt how they should hold, even where it was proved negatively for the prisoner, that there was no such parish. Dowling's case, R. and M. N. P. C. 433 (b). So where a larceny was charged to have been committed in a dwelling house, situate in the parish of St. Botolph, Aldgate, and it appeared that the proper name of the parish was St. Botolph without Aldgate, the judge directed an acquittal on the capital part of the charge, but the prisoner was convicted of the larceny, and on a case reserved, the judges were of opinion that the conviction was right, there being no negative evidence of there not being such a parish as St. Botolph, Aldgate. Bullock's case, 1 Moo. C. C. 324, (n.) (c). With regard to the latter point it was formerly laid down that where it was proved that no such place existed, the indictment was void by 9 Hen. 3, st. 1, c. 1 (made perpetual by 18 Hen. 6, c. 12), and on the objection being taken in a case before Mr. Justice Lawrence, he reserved the point for the opinion of the judges; but it was never decided. Anon. 3 Campb. 77. It was there contended against the objection, that to lay a place was no longer necessary, as the jury are to come from the body of the county; and though this was a mistake (see 1 Phill. 206, n.), yet now by 6 G. 4,.c. 50, s. 13, the return is from the body of the county. The point at length appears to have been settled in the following case. The prisoner was indicted for setting fire to a stack of beans at Normanton-in-the-Would. It appeared that there was no such parish, but only a hamlet of that name, nor was there any parish of Normanton. The judges, on a case reserved, held that the offence had nothing of locality in it, and that there was no such place in the county, could only be taken advantage of by plea in abatement. Woodward's case, 1 Moo. C. C. 323 (d).

Court, held on the 19th day of May, and the record shows the Court to have been held on the 20th of May, the variance is fatal. U. States v. McNeal, 1 Gallison, 387.

(a) Eng. Com. L. Rep. xxii. 377.

(b) Id. xxi. 483. (c) 2 Eng. C. C. 324. (d) 2 Ibid. 323.

In some particular cases it is necessary to prove the parish or place named in the indictment (I): Thus, as in an indictment against a parish for not repairing a highway, the situation of the highway within the parish is a material averment, see 2 Stark. C. P. 693, (n.) it must be proved as laid. So if the 'statute upon which the indictment is framed give the [*103] 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. Archb. C. P. 63; 2 Russ. 717. Where an injury is partly local and partly transitory and a precise local description is given, a variance in proof of the place is fatal to the whole, for the whole being one entire fact, the local description becomes descriptive of the transitory injury. 3 Stark. Ev. 1571, citing Cranage's case, Salk. 385 ; 2 Russ. 717. So where the name of a place is mentioned, not as matter of venue but of local description, it must be proved as laid, although it need not have been stated. Thus, where an indictment (under the repealed stat. 57 Geo. 3, c. 90) charged the defendant with being found armed with intent to destroy game in a certain wood called the Old Walk, in the occupation of J. J., and it appeared in evidence that the wood had always been called the Long Walk and never the Old Walk, the judges held the variance fatal. Owen's case, 1 Moo. C. C. 118 (a).

Where an information for a libel alleged that outrages had been committed in and in the neighborhood of N. it was held that the averment was divisible, and that it was sufficient to prove that outrages had been committed in either place. Sutton's case, 4 M. and S. 532.

Averments as to value.] In general it is not necessary to prove the value of the property stolen or injured to be the same as that laid in the indictment, though formerly the distinction between grand and petty larceny depended upon the value of the property stolen; yet as that distinction is now abolished by the 7 and 8 Geo. 4, c. 28, the value has become immaterial, except in those cases where by statute the stealing property to a certain value enhances the punishment, as by the 7 and 8 Geo. 4, c. 29, s. 12, stealing in any dwelling-house, any chattel, &c., to the value of five pounds. So the value is material in an indictment on the stat. 6 Geo. 4, c. 16, s. 112, against a bankrupt for removing, concealing, or embezzling any part of his estate to the value of £10 or upwards. On an indictment against a bankrupt under the former statute, it was held that the value being essential to constitute an offence, and being ascribed to many articles collectively, the offence must be made out as to every one of those articles, for the grand jury had only ascribed that value to all the articles collectively. Forsyth's case, Russ. and Ry. 274 (b).

(1) As in an indictment for keeping a disorderly house. McDonald's case, 3 Rogers' Rec. 128. So in burglary, Carny's case, Id. 44. Qu. In bigamy where the first marriage alleged to be in the State is in fact out of it. Ewen's case, 6 ld. 65.

(a) 2 Eng. C. C. 118. (b) 1 lbid. 274.

*WITNESSES.

THE NUMBER REQUISITE, ATTENDANCE, REMUNERATION, AND PROTECTION OF WITNESSES.

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The number of witnesses requisite.] At common law one witness was sufficient in all cases (with the exception of perjury), both before the grand jury and at the trial; 2 Hawk. c. 46, s. 2; Fost. 233.

But by the statutes relating to high treason (1 Ed. 6, c. 12, s. 22; 5 and 6 Ed. 6, c. 11, s. 12; 7 and 8 Wm. 3, c. 3, s. 2), two witnesses are required both before the grand jury and at the trial, to the same overt act, or one witness to one overt act, and another witness to another overt act of the same species of treason, unless the defendant shall willingly, without violence, confess the same. But a collateral fact may be proved by one witness, Fost. 242; as that the defendant is a natural born subject. Vaughan's case, 5 St. Tr. 29. Where the overt act alleged is the assassination of the king, or any direct attempt against his life or person, one witness is sufficient, 39 and 40 Geo. 3, c. 93. In misprision of treason there must also be two witnesses unless the defendant confesses the offence, 1 Ed. 6, c. 12, s. 22.

On an indictment for perjury two witnesses are requisite, see post, tit. Perjury. In all other cases one witness is sufficient, and a prisoner may be legally convicted on the uncorroborated testimony of an accomplice, although the practice is to require his evidence to be confirmed. See post, tit. Admissibility of Accomplices.

Mode of compelling the attendance of witnesses-recognizance.] There are two modes of compelling the attendance of witnesses; first by recognizance, secondly by subpœna.

*By the 7 Geo. 4, c. 64, s. 2, in cases of felony and suspicion of [*105 ] felony, the justice or justices before whom the offender is brought to be examined, shall have power to bind by recognizance all such persons as know or declare any thing material concerning such offence, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine, or of great session, or sessions of the peace, at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused. By s. 3, the justice or justices have

similar powers to bind by recognizance where the offender is charged with a misdemeanor, or suspicion thereof. By s. 4, coroners have the like authority, in cases of murder or manslaughter, to bind by recognizance persons to prosecute or give evidence. See ante, p. 53.

If a witness, examined before a justice of the peace, refuses to be bound over, he may be committed. 2 Hale, P. C. 284. But where the witness cannot find sureties, the magistrate ought to take his own recognizance, and it would be illegal to commit the witness. Per Graham, B., Bodmin Sum. Ass. 1827; 2 Stark. Ev. 82, 2d ed.

Where the witness was a married woman, and therefore incapable of entering into a recognizance, it was held that the magistrate was justified in committing her on her refusal to appear to give evidence, or to find sureties for her appearance to give evidence. Bennett v. Watson, 3 M. and S. 1.

Formerly, where a person had entered into a recognizance to prosecute or give evidence, and did not appear, such recognizance was, as a matter of course, estreated; but now, in such cases, by statute 7 Geo. 4, c. 64, s. 31, such recognizances are not to be estreated without the written order of the judge, &c., who shall have attended the court, who shall make an order touching the estreating or putting in process of such recognizance.

Subpana.] Where a witness has not been bound by recognizance to appear, he may be compelled to do so by subpoena (1). This process is issued by the clerk of the peace at sessions, or by the clerk of assize at the assizes, or it may be issued out of the Crown Office. The latter is the most prudent course, as it affords the most facilities for obtaining an attachment in case of a refusal to attend, and may be served out of the jurisdiction of an inferior court. 1 Chitty, C. L. 608; 2 Russ. 638; Ring's case, 8 T. R. 585. By stat. 45 Geo. 3, c. 92, s. 3, the service of a subpœna on a witness in any part of the United Kingdom, for his appearance on a criminal prosecution in any other part, shall be as effectual as if it had been in that part where he is required to appear. Vide post.

Where there are writings or documents in the possession of a witness, which it is desired that he should produce on the trial, a clause of duces tecum, directing the witness to bring with him into court the documents in question, is added to the writ of subpæna. If the documents are in the possession of the party or his attorney, a notice to produce must be given. Where documents are in the possession of the prosecutor, and [106] the prisoner is desirous of having them produced upon the trial, the safest mode of proceeding appears to be to serve the prosecutor with a subpœna duces tecum, and not to rely on a notice to produce, since it may be a question whether a prosecutor is so far a party to the proceeding as to be affected by a notice to produce. The subpoena duces tecum is compulsory on the witness, and though it is a question for the decision of the presiding judge, whether the witness in court should produce the documents required, yet he ought to be prepared to produce them, if the judge be of that opinion (2). Amey v. Long, 9 East, 473. It is no excuse for not producing a document, that it does not belong to the wit

(1) The defendant is entitled to subpoena before the Grand Jury have found the bill. 1. Burr's Trial, 178. U. States v. Moore, Wallace, 23.

(2) The subpoena duces tecum is not a process of right. 1 Burr's Trial, 137, 182. Gray v. Pentland, 2 S. & R. 31.

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