the former is proper ground for acquittal, in case of variance in evidence, or arrest of judgment in case of variance on record; Wh. C. L. § 595-9. The misspelling of a surname, when its usual pronunciation is satisfied by the manner in which it is written in the record, as "Whyneard" for "Winyard," is sufficient; R. v. Foster, R. & R. 412; and in one case the court went so far as to say that "Harrison" was not a fatal variance from "Harris:" State v. France, 1 Overton's R. 434; though in Pennsylvania, in Com. v. Gillespie, 7 S. & R. 469, the extreme position was taken that "Burrall" was sufficient to arrest judgment where the proof was that the name was Burril. The word, however, it must be observed, occurred in the copy of a lottery ticket, pretended to be set out in the indictment; see Wh. C. L. § 595-9. A mere statement, it seems, of the christian name, without any surname, will not suffice; Hawk. b. 2, c. 25, s. 71. Where the name and addition of the injured party cannot be ascertained, as where a body of a murdered person is found who cannot be identified, or goods are found on a highwayman, &c., the indictment may allege the party to be "to the jurors unknown ;” 2 Hale 181; see 2 B. & Ald. 580. To support the description of “unknown,” remarks Mr. Serjeant Talfourd, it must appear that the name could not well have been supposed to have been known to the grand jury; R. v. Stroud, C. & K. 187. "Unknown" was held sufficient where there was evidence that the party injured, a bastard child who died at twelve days old unbaptized, had been called by its mother Mary Ann; R. v. Smith, 1 Mood. C. C. 295; S. C. 6 C. & P. 151. A bastard which had never acquired a name, is sufficiently identified by showing the name of its parent thus-" a certain illegitimate male child then lately born of the body of A. B. (the mother);" Reg. v. Mary and Jane Hogg, 2 M. & Rob. 380; see R. v. Hicks, 2 ib. 302; where an indictment for child-murder was held bad for not stating the name of the child or accounting for its omission. A bastard must not be described by his mother's name till he has acquired it by reputation; R. v. Clark, R. & R. 358; Wakefield v. Mackey, 1 Phill. R. 133, contra. A bastard child, six weeks old, who was baptized on a Sunday, and down to the following Tuesday had been called by its name of baptism and mother's surname, was held by Erskine J. to be properly described by both those names in an indictment for its murder; Reg. v. Crans, 8 C. & P. 765; but where a bastard was baptized "Eliza," without mentioning any surname at the ceremony, and was afterwards, at three years old, suffocated by the prisoner, an indictment, styling it "Eliza Waters," that being the mother's surname, was held bad by all the judges, as the deceased had not acquired the name of Waters by reputation; R. v. Ellen Waters, 1 Mood. C. C. 457. (N. B. No baptismal register or copy of it was produced at either trial. Semb.: "Eliza" would have sufficed; see Reg. v. Stroud, C. & K. 187, and cases collected; Williams v. Bryant, 5 M. & W. 447.) In the previous case of R. v. Frances Clark, R. & R. 358, an indictment stated the murder of "George Lakeman Clark, a baseborn infant male child, aged three weeks," by the prisoner, its mother. The child had been christened George Lakeman, being the name of its reputed father, and was called so, and not by any other name known to the witnesses. Its mother called it so. There was no evidence that it had been called by or obtained its mother's name of Clark. The court held him improperly laid Clark, and as nothing but the name identified him in it, the conviction was held bad; see also R. v. Sheen, 2 C. & P. 634. However, in Reg. v. Biss, 8 C. & P. 773, an indictment against a married woman for murder of a legitimate child, which stated "that she, in and upon a certain infant male child of tender years, to wit, of the age of six weeks, and not baptized, feloniously and wilfully, &c., did make an assault, &c., was held insufficient by all the judges, as it neither stated the child's name, nor that it was "to the jurors unknown." Semble: it would have sufficed to state him as "a certain male child, &c., of tender age, that is to say, about the age of six weeks, and not baptized, born of the body of C. B. ;" see 2 C. & P. 635, n.; see also R. v. Sheen, 2 C. & P. 634. Where a party is as usually known by one name as another, he may be described by either, and by the name which he has assumed, even though shown not to be his right name; R. v. Norton, R. & R. 509; R. v. Berriman, 5 C. & P. 601; Anon., 6 C. & P. 408. So where an indictment charged the name of the person slain as Marie Gardiner alias Maria Bull, and the proof showed her real name to be Maria Frances Bull, though she was generally known by the name in the indictment, it was held sufficient; State v. Gardiner, Wright's R. 392. If a false description be added to the name, as if a female feloniously married by a man whose wife is still alive, be described a "widow," when she is known to be a singlewoman, the error will be fatal, though no description of her was requisite; R. v. Deeley, 1 Mood. C. C. R. 303; 4 C. & P. 579 (A. D. 1831). Where the party injured has a mother or father of the same name, it is better to style the prosecutor younger," as it may be presumed that the parent is the party meant; for George Johnson means G. J. the elder, unless the contrary is expressed; Singleton v. Johnson, 9 M. & W. 67. But this was held immaterial, where it is sufficiently proved who Elizabeth Edwards, the party described assaulted, was, viz. the daughter of another Elizabeth Edwards; R. v. Peace, 3 B. & Ald. 519; and the latter law now generally obtains; "the Hodgson's case, 1 Lewin, C. C. 236; State v. Grant, 22 Maine, 171; R. v. Bailey, 7 Car. & P. 264. A variance in the name or identity of the party laid as injured, will entitle the prisoner to acquittal; Dickinson's Q. S. 6th ed. 213. As to statement of offence, see Wh. Cr. Law, as follows: I. General Statement. 1st. Offence must be made judicially to appear, § 285. 2d. Statement must be technically exact, § 287. 3d. Not enough to charge a conclusion of law, § 288. 4th. Common barrator and common cheat, § 289. 5th. Matters unknown, § 290. 6th. Bill of particulars, § 291. 7th. Surplusage need not be stated, § 291. 8th. Alternative or disjunctive statements, § 294. 9th. Knowledge and intent, § 297. 10th. Inducement and aggravation, § 298. 11th. Objects for which particularity is required, § 299. (a) Identification, § 300. (b) Protection, § 301. (c) Indulgence, § 302. II. Personal Chattel. 1st. Indefinite, insensible, or lumping descriptions, § 354. 2d. Value, § 362. 3d. Money or coin, § 363. III. Technical Averments, § 398. 1st. " Traitorously," § 398. 2d. "Feloniously did kill," "Malice aforethought," "Strike," § 399. "Feloniously"-when necessary, and when it may be discharged as sur- 4th. " "Ravish," 5th. " "Burglariously," 6th. "Vi et armis," § 403. IV. Clerical Errors, § 405. (j) (Allegation of intent.) What the law forbids to be done, it becomes illegal to do wilfully; Fergus v. State, 6 Yerg. 345; Wh. C. L. § 297, on which account the doing it will be the subject matter of an indictment as contempt of the statute; Crowther's case, Cro. El. 655; without the addition of any corrupt motives; per Ashurst J., R. v. Sainsbury, 4 T. R. 451, cited 2 A. & E. 612; for disobedience of an act of the legislature, is indictable on the principles of the common law, though a pecuniary penalty may also be provided for it; R. v. Jones, Strange 1146; indictment for not taking on defendant the office of overseer on a regular appointment; R. v. Harris, R. v. Crorsley, 10 A. & E. 132. But the intention of the party at the time he commits an act charged as an offence, is often as necessary to be proved as any other fact laid, though it can only be proved by overt acts, every man being supposed to intend the necessary consequence of his own acts; R. v. Harrington, R. & R. 207. When more than one criminal intent is averred, the averment is divisible, and only one need to be proved; e. g. if a person is charged with assaulting a child with intent to abuse and carnally know her, he may be convicted of an assault with an intent to abuse her only; R. v. Dawson, 2 Stark. 62; Shaw's case, 2 R. 789; Figgins v. Cogswell, 3 M. & S. 369. As to intent in uttering a counterfeit half-crown in charity, see Page's case (on 2 W. IV. c. 34, s. 7), 8 C. & P. 22; and Alldy's case for erasing and altering a stamped posthorse license, both before Ld. Abinger C. B., 8 C. & P. 136. See Wh. C. L. § 297. (k) (Conclusion of indictments at common law.) See, on this point, Wh. Cr. Law as follows: 1st. What conclusions are required by the constitutions and statutes of the several states, § 410. 2d. When the conclusion is to be statutory, § 411. 3d. When the statutory conclusion must be in the plural, § 412. 4th. When the statutory conclusion may be rejected as surplusage, § 413. The old reason of the ordinary conclusion of an indictment at common law," against the peace of our said lady the queen, her crown and dignity," was that these words were always necessary in order to show to whom the forfeiture accrued. Whether in misdemeanor, R. v. Taylor, 3 B. & C. 502; common law felony, R. v. Cook, R. & R. C. C. 176; 2 Russ. C. & M. 172; or felony created by statute, ib. 1 Bla. C. 116. The only exception was in an indictment for a mere nonfeasance at common law, when it is said their omission would not prejudice; per Holt C. J.; Fortescue, 131 R.; and they are always necessary in an offence against a statute. In this country, though the reason no longer works, the form is preserved, and is in many instances made imperative by constitutional enactment, as will be seen in the next chapter. In offences of all characters, the "contra pacem” is essential; and the point on which any discretion may be exercised is in the omission or introduction of the conclusion, "contra formam statuti." And here it may be observed that in all cases of doubt, it is proper to introduce this conclusion, and even in a clear common law case, it may always be disregarded as surplusage; Ld. Raym. 149, 1164; R. v. Matthews, 5 T. R. 162, 4 ib. 202; 1 Saund. 135, n. 3; State v. Buckman, 8 N. Hamp. 203; Knowles v. State, 3 Day 103; State v. Cruiser, 3 Harris 108; Southworth v. State, 9 Conn. 560; Com. v. Gregory, 2 Dana 417; Com. v. Hoxey, 16 Mass. 385; Resp. v. Newell, 3 Yeates 407; Pa. v. Bell, Add. 171; 2 Hale 190; Alleyn 43; 1 Salk. 212-13; 5 T. R. 162; 2 Leach 584; 2 Salk. 460; 1 Ld. Raym. 1163; 4 T. R. 202; Hawk. b. 2, c. 25, s. 115; Bac. Ab. Indictment H. 2; Burns' Just. Indictment ix.; Haslip v. State, 4 Hay. 273; Wh. C. L. § 413. In a large class of offences, however, its introduction is imperative. Thus, where an offence is created, or where a misdemeanor is raised into a felony by statute, the words "contrary to the form of the statute in such case made and provided," must be inserted either before or after the words "against the peace," &c. ; 2 Hale 192; 2 Hawk. c. 25, s. 116; 1 Salk. 370; 2 R. & R. 38; Wh. C. L. § 411. Where the matter charged is no offence at common law, the omission of these words will so entirely vitiate, that no judgment can be given on it; 1 Hale 172, 189, 192. For every offence for which a party is indicted is supposed to be prosecuted as an offence at common law, unless the prosecutor, by reference to a statute, shows that he means to proceed on it; and without such express reference, if it be no offence at common law, the court will not look to see if it be an offence by statute; per Lawrence J. in Lee v. Clark, 2 East. 333; Doct. Plac. 332; 2 Hawk. c. 25, s. 116; R. v. Deacon, R. & M. N. P. C. 27. But where the matter charged was an offence at common law, and is afterwards prohibited by statute without being altered in degree, as from misdemeanor to felony, though the statute provides some new corporal or other punishment, e. g. for perjury by 5 El. c. ix., or for larceny by 7 & 8 C. IV. c. 28, s. 11; Reg. v. Blea, 8 C. & P. 735; the omission of contra formam statuti will not wholly avoid the indictment, but judgment may pass for the punishment inflicted in such case by the common law; 2 Hale 190, 192; 1 Chit. C. L. 290, 1st ed.; Arch. C. P. & Ev. 8th ed. 55; People v. Enoch, 13 Wend. 175; State v. Ripley, 2 Brevard 382; State v. Tim, 3 Murph. 3; State v. Crans, 7 Gill & J. 290; Warner v. Com., 1 Barr 154; à fortiori if the statute does not alter the offence, though it defines limits within which alone it can be committed, or prohibits it, and the punishment is only reduced; Reg. v. Polly and another, C. & K. 77 ; Reg. v. Andrews, ib. So it seems, that under the provisions of the New York Revised Statutes, a common law indictment for murder is proper; but a defendant cannot be convicted on such an indictment of a felonious homicide, with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder; People v. Enoch, 13 Wend. 159. In Pennsylvania, the statutory penalty can be inflicted after conviction on an indictment for murder at common law; Com. v. White, 6 Binn. 183. Numerous distinctions have been taken in the old books as to the proper conclusion where there were more statutes than one referring to the offence, whether it should be contrary to the form of the statute or statutes; and the English doctrine used to be that if one statute be relative to another, as where the former makes the offence and the latter adds a penalty, the indictment should conclude contra formam statutorum; Westwood's case, 2 Hale 173. The more recent authorities, however, seem to countenance the opinion that in all cases a conclusion in the singular will suffice; Clanricarde (Earl) v. Stokes, 7 East 520, and cases cited 1 Chit. C. L. 292, n. If one statute subjects an offence to a pecuniary penalty, and a subsequent statute makes it a felony, an indictment for the felony concluding against the form of the statute in the singular, is right; R. v. Pim, R. & R. 425; though in Maryland, State v. Cassell, 2 H. & G. 470, and in North Carolina, State v. Pool, 2 Dev. 202, the old rule is adhered to. Besides these necessary parts of the conclusion, it was formerly usual to introduce others of mere moral inference, as "to the great displeasure of Almighty God," "to the evil example of all others," and "to the great damage" of the party directly aggrieved; but these are all clearly unnecessary, and should be omitted. Dickinson's Q. S. 6th ed. 225. (1) (Of the joinder of offences in an indictment.) See, under this head, Wh. Cr. Law as follows: 1st. Generally, joinder in one count of two distinct offences, is bad, § 381. 2d. Exceptions to the rule, § 383. (a) Burglary-adultery-seduction, § 383. (b) Assaults with intent, &c., § 385. 43 (c) Misdemeanors constituent in felonies, and herein of how far the term "feloniously" may be rejected, § 388. (d) Where successive stages in an offence are united in statute, § 390. (e) Double articles in larceny, § 391. (f) Double overt acts or intents, § 392. (g) Double batteries, libels, or sales, § 393. 3d. How duplicity may be objected to, § 395. As to joinder of several counts charging different offences: 1st. Where such joinder is permissible, § 414. 2d. Where an election will be compelled, § 422. 3d. Advantages of alternative statements in distinct counts, § 424. 4th. How second and subsequent counts are to be prefaced, § 426. 5th. Effect of one bad count upon others, and herein of the transposition of counts, § 427. In point of law, several offences, which may be tried by the same rules, and which have the same legal class and character, i. e. several felonies, or several misdemeanors, may be charged in several counts in one indictment; Wh. C. L. § 414-27; 2 Hale, 173; 1 Chit. C. L., 1st ed. 254; State v. Phelps, 11 Verm. 116; Baker v. State, 4 Pike's Arkansas 56; People v. Rynders, 12 Wend. 425; Res v. Hevice, 2 Yeates 14; Carlton c. Com., 5 Met. 532; Kane v. People, 8 Wend. 203; Carg v. State, 3 Port. 186; Com. v. Gillespie, 7 S. & R. 496; State v. Williams, 2 M'Cord 301; Com. v. Hope, 22 Pick.; Josslyn v. Com., 6 Met. 236. Thus counts for felony at common law may be joined with counts for felony by statute; counts for a felony with aggravation which render it capital, with counts for a felony which is not capital; counts for riots and aggravated assaults, punishable by hard labor, with counts for common assaults, for which that punishment cannot be inflicted. The rule deduced from the English authorities is that where not only the degree, but the legal character of the offence is different, and the modes and incidents of trial differ, no charge of felony should be joined with a charge of misdemeanor. The test whether different offences may or may not be charged in an indictment, seems not always to be whether the judgments or punishments consequent on conviction differ or not (see per Ld. Ellenborough, in R. v. Johnson, 3 M. & S. 539), but whether the nature and quality of the offences charged is the same or different, in other words, as it seems, whether one is a felony and the other a mere misdemeanor (ib.). The modern practice is that several misdemeanors may be joined in an indictment, though the judgments on each differ; and the only case in this country which distinctly applied a more rigid practice; Updegraph v. Com., 6 S. & R. 5; was afterwards overruled. Counts for an assaulting with intent to ravish, and for a common assault; Harman v. Com. 12 S. & R. 476; Buck v. State, 2 Har. & J. 426; State v. Coleman, 5 Port. 52; State v. Montague, 2 M'Cord 257; State v. Gaffney, Rice 431; counts for assaulting a constable and for assaulting prosecutor, stated to be a common person (per Parke J., in R. v. Finucane and another, 5 C. & P. 551); for conspiracy and false pretences; for selling lottery tickets and conspiracy to sell the same; Com. v. Gillespie, 7 S. & R. 469; Com. v. Sylvester, 6 P. L. J. 283; for producing abortion, and for conspiracy to produce the same; Com. v. Demain, 6 P. L. J. 29; for false pretences and forgery at common law; R. v. Collier, 5 C. & P. 160; for entering closed land by night with another person, armed for the purpose of killing game (a misdemeanor, which by 9 G. IV. c. 64, s. 9, can only be tried at the assizes), and on s. 2 for assaulting a gamekeeper authorized to apprehend, and for assaulting a gamekeeper in the execution of his duty; and for a common assault, R. v. Finucane, 5 C. & P. 551, may be properly joined. And it is now no ground, even in England, for arresting judgment after conviction of felony, that the indictment contained a count for a misdemeanor, R. v. Ferguson, 29 Eng. Law & Eq. R. 536. In the United States, notwithstanding the recognition of the same line of distinction in respect to challenges and arraignment, which obtains in England, the English doctrine has been so far extended as to admit of the joinder of felonies and misdemeanors in all cases where the misdemeanor is a constituent part of the felony. Thus an assault with intent to ravish requires the same kind of defence as rape itself; a trial for the consummated act involving a trial for the attempt; and as no real inconvenience results to the prisoner, the artificial difficulties arising from the difference in challenges has not been allowed to operate so far as to prevent a joinder of the offences; Harman v. Com., 12 S. & R. 69; Burk v. State, 2 Har. & J. 426; State v. Coleman, 5 Port. 52; State v. Montague, 2 M'Cord 257; State v. Gaffney, Rice 431; State v. Boise, 1 M'Mullen 190. But a greater latitude has been allowed; and the cases go to show that where the misdemeanor instead of being a constituent part of the felony, is merely a corollary to it, as in the case of larceny and the receiving of stolen goods, the two offences may be coupled; Wh. C. L. § 414-27. Though on the face of an indictment every count should import to charge a different offence; 3 T. R. 106; the words "the said" as applied to a prosecutrix in a second or subsequent count, merely asserting her to be the same person as was mentioned in the prior count, without re-asserting her particular character or age there stated; e. g. that she was a female child aged between ten and twelve; R. v. Martin, 9 C. & P. 213; whether founded on the same or different facts; yet in practice the use made of the legal right to join several charges of felony, is commonly no other than the charging the same offence in different counts of the same indictment in different ways, to meet the several aspects which it is apprehended the case may assume in evidence, or in which it may be regarded in point of law by the court; e. g. where it is doubted whether the goods stolen or the house in which a larceny was committed belong to or is occupied by A. or B., one count may state the goods, &c., as A's, and a second as B's; R. v. Eggington, 2 B. & P. 508. So the same act, e. g. burglary, may be laid in different counts to have been done with intent to steal and to murder; R. v. Thompson, 2 East P. C. 515; Josslyn v. Com., 6 Met. 236. Even where six distinct houses in the same row were burned down, it was held that each house might be the subject of a distinct count in a joint indictment; R. v. Trueman, 8 C. & P. 727; and in Massachusetts there is no hesitancy in including in the same indictment counts for the several subdivisions into which the chief common law felonies are there divided; Com. v. Hope, 22 Pick. 1. But in felony, if charges requiring an essentially different state of fact to support them, though referring to the same transaction, be joined, as a count for robbing with a count for assaulting with intent to rob, the court will, in general, compel the prosecutor to make an election; R. v. Gough, 1 M. & Rob. 71; though here such rigor is not exercised, and the power of election as to which of the two stages of the defence the defendant is guilty of, is reserved to the jury. In cases of misdemeanor the books in both countries agree that while different counts may be introduced applicable to the same facts as in case of felony, no objection can be made in any way even to the joinder of counts applicable to different facts, so that the legal character of the substantive offences charged be the same; per Ld. Ellenborough, in R. v. Jones, 2 Campl. 13. So conspiracy, and charges of other misdemeanors, may be joined; R. v. Johnson, 3 M. & S. 539; Kane v. People, Wend. 203; State v. Rooby, 3 Harringt. 561; State v. Haney, 2 Dev. & Bat. 390; U. S. v. Dickinson, 2 M'Lean 325. Thus it is the constant practice to receive evidence of several assaults or libels on the several counts of the same indictment, and, on the other hand, an indictment for an assault by one or more on several is valid, though an award of a joint fine would be bad and the parties assaulted could not join in an action, where each person injured is to recover separate damages. See dictum of Ld. Mansfield in R. v. Benfield and Saunders, 2 Burr. R. 980, 984; 2 Hawk. c. 25, s. 89, denying R. v. Clendon, 2 Strange 870; Ld. Raym. 1572. See in full Wh. Cr. Law & 414-27. 45 |