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, 8th 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, 1 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. 332, 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 v. 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 formam 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 larceny, and the jury found the prisoner guilty of stealing to the amount of 408., 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.

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

(2) On an indictment for an assault with intent to murder, there may be a conviction of an assault simply. State v. Coy, 2 Aik. 181. Stewart v. State, 5 Ohio, 242. But on an indictment for murder, there cannot be a conviction of an assault with intent to murder, nor vice versa. Commonwealth v. 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 v. Spurgin, 1 M'Cord, 252. Nor upon an indictment for stealing, can there be a conviction for receiving, &c. Ross v. The State, 1 Blackf. 391. See The State v. Shepard, 7 Conn. 54. State v. Taylor, 2 Bailey, 49.

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

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, Middlehurst's case, í Burr. 400. Per Lord Ellenborough, Hunt's case, 2 Campb. 585.

So 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, Hill's case, Russ. and Ry. 190 (a).

So upon an indictment for perjury it is sufficient if any one of the assignments of perjury be proved. Rhodes's case, 2 Lord 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. Bykerdike's case, 1 M. and Rob. 179.

By the 7 Wm. 4, and 1 Vict. c. 85, s. 11, (see post). On the trial of any felony where the crime charged shall include an assault, the jury may acquit the prisoner of the felony and find him guilty of an assault, if the evidence warrant such finding.

With regard to the value and extent of the property upon which the offence has been committed, the averments in the indictment are divisible. Thus if a man be indicted for stealing goods of the value of ten shillings, the jury may find him guilty of stealing goods to the value of sixpence, and where the distinction between grand and petty larceny existed, this would have rendered the prisoner guilty of the latter only, though charged with the former. 2 Hale, P. C. 302 (1). 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 [ *93] *feloniously taken away by him. Where the prisoner was indicted under the 7 Geo. 3, c. 50, 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 £100, a bill of exchange for £40, and a promissory note for £20, and it was not proved that the letter contained a bill of exchange for £100; 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. Ellins's case, Russ. and Ry. 188 (b).

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, for winning more than 101. 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. Hill's case, 1 Stark. 359 (c).

Where in an indictment for embezzling, it was averred that the prisoner had embezzled divers, to wit, two bank notes for one pound each, and one bank note for two pounds, and the evidence was that he had embezzled one pound notes only, this was held sufficient. Carson's case, Russ. and Ry. 303 (d).

(1) Poindexter's case, 6 Rand. 668. State v. Wood, 1 Rep. Const. Ct. 29.

(a) 1 Eng. C. C. 190. (b) 1 Ibid. 188. (c) Eng. Com. L. Rep. ii. 426. (d) 1 Eng. C. C.

303,

Divisible averments-intent.] Where the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove one intent only. 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. Evans's case, 3 Stark. 35 (a). 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, Holroyd, J., held, that the averment of intention was divisible, and the prisoner received sentence of imprisonment for twelve months. Dawson's case, 3 Stark. 62 (b).

Where an intent is unnecessarily introduced in an indictment, it may be rejected. Jones's case, 2 B. and Ad. 611 (c). See post, p. 101.

Descriptive averments-the property stolen or injured.] Where a person or a thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved, othewise it would *not appear that [*94 ] the person or thing is the same as that described in the indictment (1).

With regard to the thing upon which the offence is alleged to have been committed, if a man were to be charged with stealing a black horse, the allegation of color, although unnecessary, yet being descriptive of that which is material, could not be rejected. 3 Stark. Ev. 1531, 1st ed. [New Ed. 1 Vol. p. 374.] 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. Edwards's case, Russ. and Ry. 497 (d).

The following cases have occurred of variances in the description of animals. On an indictment upon the statute 15 Geo. 2, c. 34, 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. Cook's case, 2 East, P. C. 616. 1 Leach, 105. On an indictment for stealing two colts, it appeared that the one was a mare four years old, and the other a yearling mare or filly. The witnesses said, that animals of

(1) An indictment for coining alleged possession of a die made of iron and steel. In fact it was made of zink and antimony. The variance was held fatal. Dorsett's case, 5 Rogers' 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 allega tion. U. States v. Porter, 3 Day's Cas. 283. The Court will be more strict in requiring proof of the matters alleged in a criminal than in a civil case. Ibid.

(a) Eng. Com. L. Rep. xiv. 154. (b) Id. xiv. 163. (c) Id. xxii. 146. (d) 1 Eng. C. C. 497.

this description, when as young as those in question were, according to the usual language of the country called colts, and some of the jurors said that mares or fillies are generally called colts, until they are three or four years old. The prisoner being convicted of the simple larceny, the judges were unanimously of opinion, that the conviction for simple larceny was correct, but as colts were not mentioned eo nomine in the statute (1 Ed. 6, c. 12, 2 Ed. 6, c. 33,) the judges could not take notice that they were of the horse species, and consequently clergy was not taken away. Beaney's case, Russ. and Ry. 416 (a). The prisoner being indicted under the 9 Geo. 1, c. 22, 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. Chalkley's case, Russ. and Ry. 258 (b) (1).

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 2 and 3 Ed. 6, 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. Wel[*95] land's case, Russ. and Ry. 494 (c). *But where the statute (15 Geo. 2, c. 34, and 7 and 8 Geo. 4, c. 29, s. 26,) specified lambs as well as sheep, and the indictment was for stealing sheep, proof that they were lambs, was held to be a variance. Loom's case, 1 Moody, C. C. 160 (d). Upon the same principle, the judges have held, that an indictment under the 7 and 8 Geo. 4, c. 29, s. 25, for stealing a sheep, is not supported by proof of stealing an ewe, because the statute specifies both ewes and sheep. Puddifoot's case, 1 Moody, C. C. 247 (e).

Where the prisoner was indicted for stealing "six handkerchiefs," and it appeared in evidence, that the handkerchiefs were all in one piece, not separated one from another, but that they were described in the trade as so many handkerchiefs, it was held to be no variance (2). Nibb's case, 1 Moody, C. C. 25 (ƒ). Where on an indictment for stealing a bank note, the note was described as being signed by A. Hooper, for the Governor and Company of the Bank of England, and no evidence was given of the signature of Hooper, the judges were of opinion that the statement "signed by A. Hooper," required some evidence of the signature being by him. Craven's case, Russ. and Ry. 14 (g) (3).

Descriptive averments—the name of the prosecutor or party injured.]

(1) In larceny of a gray horse, proof that it was a gray gelding—the variance held fatal. Hooker. The State, 4 Ohio, 350.

(2) The acceptation of the name of property governs the description. Case of Reed & al. 2 Rogers Rec. 168. Commonwealth v. Wentz, 1 Ashmead, 269.

(3) 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. The Cominonwealth, 2 Dana, 298. See Case of Stone & al. 3 Rogers's Rec. 3. Štate v. Cassel, 2 Har. & Gill, 407.

Puddifoot's case, 1 Moo. C. C. 247, has been overruled by M'Cully's case, 2 Lew. C. C.

272.

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

(b) 1 Ibid. 258. (c) 1 Ibia. 494. (d) 2 Ibid. 160. (e) 2 Ibid. 247.

(f) 2 Ibid. 25. (g) 1 Ibid. 14.