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not admissible, unless the latter uttering was in some way connected with the principal case, or unless it could be shown that the notes were of the same manufacture. Taverner's case, Carr. Sup. 195, 1st ed. 4 C. and P. 413 (a), (n.) S. C. Where on an indictment for uttering a bill with a forged acceptance, knowing it to be forged, it being proposed, for the purpose of proving the guilty knowledge, to give in evidence other forged bills of exchange precisely similar, with the same drawers' and acceptors' names, uttered by the prisoner, about a month after the uttering of the bill mentioned in the indictment, Mr. Justice Gaselee, after consulting Alexander, C. B., was disposed to allow the evidence to be received; but said that he would reserve the point for the opinion of the judges; upon which the counsel for the prosecution declined to press the evidence. Sinith's case, 4 C. and P. 411(b).

Cases where evidence of other transactions is admissible when referable to the point in issue-questions of intent.] As evidence of other facts is admissible when those facts tend to prove the point in issue, as to show the identity, or to establish the proximity of the prisoner at the time in question, (vide supra ;) so where the intent of the prisoner forms part of the matter in issue, evidence may be given of other acts, not in issue, provided they tend to establish the intent of the prisoner in committing the act in question. Thus on an indictment for maliciously shooting, evidence was given that the prisoner, about a quarter of an hour before the shooting with which he was charged, intentionally shot at the prosecutor. It was suggested that this was evidence of two distinct felonies; but Mr. Justice Burrough said it was unavoidable in this case, as it seemed to him to be one continued transaction in the prosecution of the malicious intent of the prisoner; and the judges held that the evidence was rightly admitted (1). Voke's case, Russ. and Ry. 531 (c).

So on a charge of sending a threatening letter, other letters written by the prisoner, both before and after that in question, may be read in evidence as serving to explain the letter upon which he is indicted. Robinson's case, 2 East, P. C. 1110; 2 Leach, 749, S.C. So subsequent declarations by the prisoner of the meaning of the letter are admissible. Tucker's case, 1 Moo. C. C. 134 (d). So on an indictment for threatening to accuse a person of an abominable *crime, if the expressions [*88) used are equivocal, the jury may connect them with what was said afterwards by the prisoners when taken into custody. Per Park, J., Kain's case, 8 C. and P. 187(e). Upon the same principle in actions for libels or words, evidence of other libels or words may be given to show the animus of the defendant, whether the words be spoken before or after those in question. Charlton v. Barrett, Peake, 22; Rustell v. Macquister, 1 Camp. 49 (n); Stuart v. Lovell, 2 Stark. 95 (f); where Lord Ellenborough, C. J., observed, that subsequent publications would be admissible in the case of an indictment to show the intent of the party.

So the declarations of a prisoner made at a former time are admissible, where they tend to prove the intent of the party at the time of the com

(1) In treason, where defendant had enlisted under the enemy, proof was admitted, that he had attempted to prevail on another to enlist, to show the quo animo. Resp. o. Malin, 1 Dall. 33. (a) Eng. Com. L. Rep. xix. 449. (b) Id. xix. 448. (c) 1 Eng. C.C. 531. (d) 2 Ibid. 134.

(e) Eng. Com. L. Rep. xxxiv. 347. ' (f) Id. iii. 261.

mission of the offence. Thus on an indictment for murder, evidence of former grudges and antecedent menaces may be given to show the prisoner's malice against the deceased. Phill. Ev. 498, 8th ed. So in treason, what was said by the prisoner with respect to what was passing at the time of the transaction laid as the overt act, may be received in evidence to explain his conduct, and to show the nature and object of the transaction. Watson's case, 2 Stark. 134 (a).

Evidence of the character of the prosecutor.] Where the prosecutor appears as one of the witnesses, evidence of his character, with regard to veracity, will be admitted as in the case of other witnesses. Vide post. And in some particular cases, where the character of the prosecutor is mingled with the transaction in question, it forms a point material to the issue, and may consequently be inquired into. Thus in the case of an indictment for a rape, evidence that the woman had a bad character previously to the commission of the offence, is admissible ; and the same principles apply with regard to an indictment for an assault with intent to commit a rape. Clarke's case, 2 Stark. 244 (b); Phill. Ev. 489, 8th ed. But in these cases general evidence of character only is admissible, and not evidence of particular facts. Id. Thus where, on an indictment for rape, the prosecutrix was asked whether she had not before had connexion with other persons, and with a particular person named? The judges beld that the witness was not bound to answer these questions, as they tended to criminate and disgrace herself; and evidence having been offered to prove that the prosecutrix had had connexion with a man before this charge, the judges also determined that this evidence was properly rejected. Hodgson's case, Russ. and Ry. 211 (c). But evidence is admissible that the prosecutrix had formerly been connected with the prisoner. 2 Stark. Ev. 216, 2d edit., citing Hodgson's case, supra; and a case, cor. Wood, B., York Summer Assizes, 1812.

Where, on the trial of an indictment for an assault, with intent to commit a rape, the prosecutrix was asked, on cross-examination, whether she had not been twice in the House of Correction many years ago, and she admitted that she had, it was held by Holroyd, J., that a witness might be examined on behalf of the prosecution as to her situation and conduct ( *89 ] since, in order to repel the inference *which might be drawn from her former misconduct. Clarke's case, 2 Stark. 241 (d).

Evidence of the character of the prisoner.] In trials for high treason, for felony, and for misdemeanors (where the direct object of the prosecution is to punish the offence), the prisoner is always permitted to call witnesses to his general character ; and in every case of doubt, proof of good character will be entitled to great weight (1). Phill. Ev. 490, 8th ed. The rule does not extend to actions or informations for penalties, as to an information for keeping false weights. Attorney General v. Bowman, 2 Bos. and Pul. 532, (n). To admit such evidence in that case would be contrary to the true line of distinction, which is this, that in a direct prosecution for a crime it is admissible, but where the prosecution is not directly for the crime, but for the penalty, it is not. If evidence of charac

(1) Commonwealth v. Hardy, 2 Mass. 317. (a) Eng Com. L. Rep. iii. 282. (h) Id. iii. 334. (0) 1 Eng. C. C. 211. (d) Id. iii. 333.

ter were admissible in such case as this, it would be necessary to try character in every charge of fraud upon the excise and custom-house laws. Per Eyre, C. J., Ibid. The inquiry as to the prisoner's general character ought manifestly to bear some analogy and reference to the charge against him. On a charge for stealing, it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry; it would not afford the least presumption that the prisoner might not have been tempted to commit the crime for which he is tried, and is therefore totally inapplicable to the point in question. The inquiry must also be as to the general character, for it is the general character alone which can afford any test of general conduct, or raise a presumption that the person who had maintained a fair reputation down to a certain period, would not then begin to act a dishonest, unworthy part. Phill. Ev. 490, 8th ed. It frequently happens that witnesses, speaking of the general opinion of the prisoner's character, state their own personal experience and opinion of his honesty ; but when this statement is admitted, it is rather from favor to the prisoner than strictly as evidence of general character. Id.

It has been usual, says a very sensible writer, to treat the good character of the party accused as evidence to be taken in consideration only in doubtful cases. Juries have generally been told that where the facts proved are such as to satisfy their minds of the guilt of the prisoner, character, however excellent, is no subject for their consideration ; but that when they entertain any doubt of the guilt of the party, they may properly turn their attention to the good character which he has received. It is, however, submitted with deference, that the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case. ture *of the charge, and the evidence by which it is supported, [ *90 ] will often render such ingredient of little or no avail; but the more correct course seems to be, not in any case to withdraw it from consideration, but to leave the jury to form their conclusion upon the whole of the evidence, whether an individual, whose character was previously unblemished, has or has not committed the particular crime for which he has been called upon to answer.

2 Russ. 703 (1). The prosecutor cannot enter into evidence of the defendant's bad character, unless the latter enable him to do so, by calling witnesses in support of his good character, and even then the prosecutor cannot examine as to particular facts. ' B. N. P. 296.

B. N. P. 296. Hurd v. Martin, Cowp. 331. It is not usual to cross-exainine witnesses to the character of a prisoner, unless the counsel have some definite charge to which to cross-examine them. Hodgkiss's case, 7 C. and P. 298 (a). See further post, title, Practice.

The na

(1) Good character in a clear case will be of no avail. Frecland's case, 1 Rogers' Rec. 82. People v. Kirby, 1 Wheaton's C. C. 64. The State o. Wells, 1 Coxe, 424. Commonwealth o. Hardy, 2 Mass. 317.

Eng. Com. Law. Rep. xxxii. 515,


General rule

90 Divisible averments

91 Sufficient to prove what constitutes an offence

91 Intent

93 Descriptive averments

93 The property stolen or injured

93 The name of the prosecutor or party injured

95 Rule of idem sonar


The name of third persons mentioned in the indictment

98 Capacity in which the offence is committed

99 The mode of committing offences : 99 Averments not material

100 Averments as to time

101 Averments as to place

101 Averments as to value


General rule. A general rule governing the application of evidence to the points in disputes on any issue, is that it must be sufficient to prove the substance of the issue. Phill. Ev. 845, Sth ed.

Under the present head will be considered the quantity of evidence [ *91 ) required in support of particular averments in indictments, *and consequent thereupon, the doctrine of variances. Upon the latter subject, it is said by Lord Mansfield, that greater strictness is required in criminal prosecutions than in civil cases ; and that in the former a defendant is allowed to take advantage of nicer exceptions. Beech's case, i Leach, 134. It may, however, be doubted whether this distinction is grounded upon sound principles, and whether in this respect, as in others, the rules of evidence ought not to be acted upon in the same manner both in civil and criminal proceedings.

The greater number of the cases on this subject may be classed under the two heads of divisible and descriptive averments.

Divisible averments-sufficient to prove what constitutes an offence.] It is a distinction (or rather principle) which runs through the whole criminal law, that it is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified (1). Per Lord Ellenborough, Hunt's case, 2 Campb. 585. The offence, however, of which he is convicted must be of the same class with that with which he is charged. Thus, upon an indictment for a felony, in stealing a parchment, it appearing that it concerned the 'realty, and that the prisoner could not, therefore be convicted of the felony, it was urged that he might receive judgment as for a trespass, and for this the Year Book, 2 H. 7. 10 and 22, Cro. Car. 3:32, Kel. 29, Cro. Jac. 497, 1 And. 351, and Dalt. 321, were cited ; but the court, having observed upon these cases, and shown that they were repugnant to the rules of law and the principles of justice, directed the prisoner to be discharged. Westbeer's case, 1 Leach, 14; 2 Str. 1133, S. C.

(1) A failure to prove an unnecessary averment cannot vitiate an indictment good without the averment. U. States d. Vickery, 1 Har. & J. 427.

Upon an indictment for petit treason, if the killing with malice was proved, but not with such circumstances as to render the offence petit treason, the prisoner might still have been found guilty of wilful murder upon that indictment. Swan's case, Foster, 104. So upon an indictment for murder, the prisoner may be convicted of manslaughter. Gilb. Ev. 269. Macalley's case, 9 Rep. 67, b. Co. Litt. 282, a. And where a man was indicted on the statute of 1 Jac. 1, for stabbing, contra formum statuti, it was held that the jury might acquit him upon the statute, and find him guilty of manslaughter at common law. Harwood's case, Style, 86; 2 Hále, P. C. 302.

Where a man is indicted for burglary and larceny, the jury may find him guilty of the simple felony, and acquit him of the burglary (1). 2 Hale, P. C. 302. So where the indictinent was for a burglary and larce- . ny, and the jury found the prisoner guilty of stealing to the amount of 40s., in a dwelling-house, (12 Ann. c. 7, repealed by 7 and 8 Geo. 4, c. 27,) the judges were of opinion that by this verdict the prisoners were ousted of their clergy, the indictment containing every charge that was required by the statute. Withal's case, 1 Leach, 88; 2 East, P. C. 515, stated post. So on an indictment for stealing in a dwelling-house, persons therein being put in fear, the prisoner may be convicted of the simple larceny. Etherington's case, 2 Leach, 671; 2 East, P. C. 635, stated post (2).

*Again, if a man be indicted for robbery, he may be found guilty [ *92 ] of the larceny, and not guilty of the robbery. 2 Hale, P. C. 302. And in all cases of larceny, where, by statute, circumstances of aggravation subject the offender to a higher punishment, on failure in the proof of those circumstances the prisoner may be convicted of the simple larceny. Thus on an indictment for horse stealing under a statute, the prisoner may be found guilty of a simple larceny. Beaney's case, Russ. and Ry. 416 (a); see post, p. 94. But where upon an indictment for robbery from the person, a special verdict was found, stating facts, which in judgment of law, did not amount to a taking from the person, but showed a larceny of the party's goods; yet as the only doubt referred to the court by the jury was, whether the prisoners were or were not guilty of the felony or robbery charged against them in the indictment, the judges thought that judgment as for larceny could not be given upon that indictment, but remanded the prisoners to be tried upon another indictment. Frances's case, 2 East, P. C. 784.

In misdemeanors as well as in felonies the averments of the offence are divisible. Thus in an information for a libel, it was stated that the defendants composed, printed, and published the libel; the proof extended only to the publication, but Lord Ellenborough held this to be sufficient, Hunt's case, 2 Campb. 584.

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(1) State o. Grisham, 1 Hayw. 12.

On an indictment for an assault with intent to murder, there may be a conviction of an assault simply. State o. Coy, 2 Aik. 181. Stewart o. State, 5 Ohio, 2Ă2. But on an indict. ment for murder, there cannot be a conviction of an assault with intent to murder, nor vice versa. Commonwealth o. Roby, 12 Pick. 496. [But see Cooper's case, 15 Mass. 187, where on an indictment for a rape, the prisoner was convicted of an assault with intent, &c.] Nor of petit larceny on an indictment for horse stealing. State o. Spurgin, 1 M'Cord, 252. Nor up. on an indictment for stealing, can there be a conviction for receiving, &c. Ross o. The State, 1 Blackf. 391. See The State o. Shepard, 7 Conn. 54. State o. Taylor, 2 Bailey, 49.

(a) 1 Eng. C. C. 416.

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