to amend the indictment by striking out the word "feloniously." (k) Where a count charged the prisoners with assaulting a gamekeeper who attempted to apprehend them whilst committing an offence against the 9 Geo. 4, c. 69, s. 1, and it turned out that the prisoners were attempting to take tame pheasants; Pollock C. B., refused to allow the indictment to be amended by alleging an assault in resisting their apprehension whilst the prisoners were committing an indictable offence. (1)

An amendment ought not to be made if the indictment would thereby be liable to be objected to on demurrer, though it would be good after verdict; as the prisoner would be deprived of his right to demur to it. (m)

In an indictment for obtaining money by false pretences it is necessary to allege that the obtaining was with intent to defraud,' and when those words are omitted in the indictment, it cannot be amended by inserting them. (n)

An indictment alleged that the prisoner pretended that he had served a certain order of affiliation on J. Bell; but the evidence was that the prisoner had said that he had left the order with the landlady at the Chesterfield Arms, where Bell lodged, he being out; and it was held that there was a variance; for the allegation in the indictment meant a personal service of the order; and that this variance was not amendable under the 14 & 15 Vict. c. 100, s. 1, as it was not a variance in the name or description of any matter or thing named or described in the indictment. (o) But where an indictment alleged that the prisoners pretended that a certain vessel called the Castenet was in Penarth Roads, and the evidence failed to show that the prisoners pretended that the vessel was the Castenet, it was held that the indictment might be amended by striking out those words. (p)

Where an indictment alleged that the prisoner endeavoured to conceal the birth of her child by placing it in and among a heap of carrots, and the proof was that the body was placed on the back of the heap, so that the middle of the heap by its height hid the body; it was held that, under the 14 & 15 Vict. c. 100, s. 1, there was no jurisdiction to amend the variance. (q)

Time and place for amending. Whether an amendment should be be made or not is for the judge, and no question should be left

(k) R. v. Wright, 2 F. & F. 320, Hill, J. It must be remembered that the challenges and the swearing of the jurors differ in felony and misdemeanor.

(7) R. v. Garnham, 8 Cox, C. C. 451. See this case, post. It does not appear upon what ground the amendment was refused.

(m) R. v. Lallement, 6 Cox, C. C. 204, Jervis, C. J., and Alderson, B. In this case the indictment alleged that the prisoner shot at a person unknown with intent to murder him, and the amendment proposed was to insert with intent to murder" in the words of the 1 Vict. c. 85, s. 2, but the court thought that it might be a question whether the indictment would not then be demurrable for generality; and that the amendment ought

to be made in such a manner as that the indictment should not be in any way defective. (n) R. v. James, 12 Cox, Č. C. 127, Lush, J.

(0) R. v. Bailey, MSS. C. S. G.; S. C. 6 Cox, C. C. 29, Greaves, Q. C., after consulting Platt, B.

(p) R. v. Baroisse, 5 Cox, C. C. 559, Wightman, J., who does not appear to have been satisfied that the amendment was properly made; as he left the case to the jury on another count, in order to relieve the case from any difficulty as to the amendment.

(9) Anonymous, 6 Cox, C. C. 391, Crompton, J., who gave no reason for the decision.

to the jury as to any fact which may arise as to the propriety of making it. (r)

An indictment for night-poaching described the land as in the occupation of George William Frederick Charles, Duke of Cambridge, but none of the witnesses was able to prove all the Christian names of the Duke; one witness, however, swore that George William were two of the Christian names of the Duke, but he believed the Duke had some other Christian names, but he could not say what they were. The sessions refused to amend the indictment by striking out the names Frederick Charles; and, on a case reserved on the question whether the sessions were bound to amend the indictment by striking out the names Frederick Charles, it was held that they were not bound to do so, as it was in their discretion whether they would amend or not; that the sessions were right in not making an amendment in the manner prayed; but that they would have been wrong if they had been applied to to strike out the Christian names altogether, leaving the prosecutor described as the Duke of Cambridge, and had refused to do so.' (s) As no amendment was made it was held that the prisoners ought to have been acquitted. (t)

The amendment must be made by the court before which the trial takes place; (u) unless the record has been removed into the Court of Queen's Bench and the trial is at nisi prius; and in that case the judge, with the consent of counsel, may reserve for the court above the question whether the amendment ought to have been made, with leave to enter a verdict for the Crown if the amendment ought to have been made. (v)

As a general rule, the proper course when the counsel for the prosecution wishes for an amendment, is for him to ask for it before he closes his case, and then if the amendment is allowed, the counsel for the prisoner addresses the jury on the indictment so amended. (w) But where the prisoners were charged with stealing rabbits, the property of Edward Critchley, and the rabbits turned out to be the property of John Critchley and another, but the mistake was not discovered until the prisoner's counsel had addressed the jury; it was held that the indictment ought to be amended (x), and it seems that an amendment may be made at any time before the verdict, but not afterwards. (y)

Any one familiar with criminal trials must have met with cases where variances have not been discovered until just before the verdict is given. By the statute the amendment may be made on the trial,' and the trial is clearly continuing until the verdict is given.

(w) R. v. Rymes, 3 C. & K. 326.

(x) R. v. Fullarton, 6 Cox, C. C. 194, Monahan, C. J., and Lefroy, C. J.

(y) Per Parke, B., R. v. Frost, Dears. C. C. 474. Per Crompton, J., ibid. See, per Alderson, B., Brashier v. Jackson, 6 M. & W. 549. R. v. Larkin, Dears. C. C. 365, 23 L. J. M. C. 125. R. v. Oliver, 13 Cox, C. C. 588.

Where the indictment as it originally stood was proved at the trial, but as amended it was not, the Court quashed the conviction. (z)

On trial for misdemeanor no acquittal if offence a felony.

By 14 & 15 Vict. c. 100, s. 12, if upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor. (a)

Since the passing of the above statute, the doctrine of merger has become of less importance. How far, apart from the statute, a conviction for a misdemeanor would be a bar to a conviction for a felony upon the same facts, is a matter of some doubt. The question is much discussed in R. v. Morris, ante, p. 45,2

On trial for misdemeanor or felony no acquittal where only attempt to commit offence proved.3

Attempts to commit offences. By the 14 & 15 Vict. c. 100, s. 9,4 'if on the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence that the defendant did. not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the

(z) R. v. Barnes, 35 L. J. M. C. 204; L. R. 1 C. C. R. 45. R. v. Pritchard, L. & C. 34. R. v. Webster, L. & C. 77.

(a) See 24 & 25 Vict. c. 96, s. 88, noticed

vol. ii. False Pretences, by which a person indicted for obtaining money by false pretences shall not be acquitted if the facts amount to a larceny.1

AMERICAN NOTES.

1 Most American States have similar provisions, Bishop, i. ss. 789, 805. In many States, convictions for a misdemeanor on an indictment for felony are allowed.

2 In America it seems to be the rule that "where one offence is a necessary element in and constitutes an essential part of another offence, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution of the other;" but it would seem not to be so where the offence first

proceeded against is the lesser offence of the two. See Bishop, i. s. 1058 (1) (2) (3).

3 In America if an act is in itself sufficient to produce an intended crime but the crime is prevented by some external circumstance, it would seem that an offence has been committed. S. v. Wilson, 30 Conn. 500; P. v. Lawton, 56 Barb. 126.

4 Most American States have similar pro visions, Bishop, i. ss. 789, 805, 809.

said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried.' (b)

Under this clause the defendant can only be convicted of the attempt to commit the very offence with which he is charged. Upon an indictment for breaking and entering the house of M. Fowler, and stealing therein eight spoons, one dress, &c., it appeared that the prisoner broke and entered the house, but that all the articles mentioned in the indictment had been stolen from the house before the time when the prisoner so broke and entered it; there were, however, other goods of the prosecutor's in the house at that time; and it was held that the prisoner could not be convicted of an attempt under this clause; for such an attempt must be to do that which if successful would amount to the felony or misdemeanor charged in the indictment; and here the attempt could not have succeeded, as the things which the indictment charged the prisoner with stealing had been previously removed. (c)

H. was indicted for rape, and W. for aiding and abetting; both were acquitted of felony, but H. was found guilty of attempting to commit the rape, and W. of aiding H. in the attempt: held, that W. was properly convicted. (d)

Judgment on record of Queen's Bench may be pronounced during the Sittings or Assizes.

The 11 Geo. 4 & 1 Will. 4, c. 70, s. 9, enacts, that upon all trials for felonies or misdemeanors upon any record of the Court of King's Bench, judgment may be pronounced during the sittings or assizes by the judge before whom the verdict shall be taken, as well upon the person who shall have suffered judgment by

(b) See R. v. Wyatt, 39 L. J. M. C. 83. The above section probably would be held to apply to felonies at common law as well as to felonies created by statute; see the note to R. v. Bain, L. & C. 129.

(c) R. v. M'Pherson, 1 D. & B. 197, 26 L. J. M. C. 134. The prisoner might have been convicted on an indictment charging an attempt to steal the goods without specifying them (R. v. Johnson, 34 L. J. M. C. 24). R. v. Collins, L. & C. 471, where it was held that a man who put his hand into an empty pocket could not be convicted of an attempt to steal, has been expressly over

AMERICAN

1 "Attempts" have been defined in Mr. Bishop's book as follows: "Where the nonconsummation of the intended criminal result is caused by an obstruction in the way, or by the want of the thing to be operated upon, if such impediment is of a nature to be unknown to the offender, who used what seemed appropriate means, the punishable attempt is committed." s. 752 (2) or (3). "Whenever the laws make criminal one step toward the accomplishment of an unlaw

ruled by R. v. Brown, 24 Q. B. D. 357, and R. v. Ring, 17 Cox, 491, and it would seem that R. v. M'Pherson also would not now be upheld; but the judgment of the Court in R. v. Brown, is very unsatisfactory, and it may be doubted how far it would be upheld on reconsideration. See an article in the Law Quarterly Review, April, 1894. The jury cannot convict under this section of an attempt which is made felony by statute, but only of an attempt which is a misdemeanor, R. v. Connell, 6 Cox, 178.

(d) R. v. Hapgood, 11 Cox, C. C. 471, L. R. 1 C. C. R. 221.

NOTE.

ful object done with the intent or purpose of accomplishing it, a person taking that step with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt it could not be fully carried into effect in the particular instance." Citing C. v. Jacobs, 9 Allen, 274.

default or confession, upon the same record, as upon those who shall be tried and convicted, whether such persons be present or not in court, excepting only where the prosecution shall be by information. filed by leave of the Court of King's Bench, or such cases of informations filed by his Majesty's attorney-general, wherein the attorney-general shall pray that the judgment may be postponed; and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterwards entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless the court shall, within six days after the commencement of the ensuing term, grant a rule to show cause why a new trial should not be had or the judgment amended; and it shall be lawful for the judge before whom the trial shall be had either to issue an immediate order or warrant for committing the defendant in execution, or to respite the execution of the judgment, upon such terms as he shall think fit, until the sixth day of the ensuing term; and in case imprisonment shall be part of the sentence, to order the period of imprisonment to commence on the day on which the party shall be actually taken to and confined in prison. (e)

Judgment of Death.

By 4 Geo. 4, c. 48, 'Whereas it is expedient that in all cases of felony not within the benefit of clergy, except murder, the court before which the offender or offenders shall be convicted shall be authorized to abstain from pronouncing judgment of death, whenever such court shall be of opinion that under the particular circumstances of any case, the offender or offenders is or are a fit and proper subject or fit and proper subjects to be recommended for the royal mercy;' enacts, that from and after the passing of this Act, whenever any persons shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the court before which such offender shall be convicted shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may be lawful for such court, if it shall think fit so to do, to direct the proper officer then being present in court to require and ask, whereupon such officer shall require and ask if such offender hath or knoweth anything to say, why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall and may and is hereby authorized to abstain from pronouncing judgment of death upon such offender; and, instead of pronouncing such judgment, to order the same to be entered of record, and thereupon such proper officer as aforesaid shall and may and is hereby authorized to enter judgment of death on record against such offender, in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death

(e) See R. v. Cox, 4 C. & P. 538; R. v. Lloyd, 4 B. & Ad. 135. See sec. 7 of the Act as to trial at bar; R. v. Castro, L. R. 9 Q. B. 350, 357, 43 L. J. Q. B. 105. As to

the practice to be pursued upon a special verdict in criminal cases, see R. v. Dudley, 14 Q. B. D. 560.