scription and the evidence, the Court may amend the record under the 14 & 15 Vict. c. 100, s. 1. Time. In criminal prosecutions it is unnecessary to prove the time of committing the offence precisely as laid, unless that particular time is material; and the facts may be proved to have occurred on any day previous to the finding of the bill by the grand jury. (p) And now, by the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly,' (q) and therefore it. seems clear that the particular time need only be proved where time is of the essence of the offence. (r) Value. It is immaterial, in general, whether the value ascribed to property in the indictment be proved or not. By the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value, or price, or the amount of damage, injury, or spoil is not of the essence of the offence;' (8) and, therefore, it seems clear that the value, price, or amount need only be proved where it is of the essence of the offence. As to the old rule, that the want of a videlicet would in some cases make an averment material that would not otherwise be so; see 2 Saund. 291 c. in note (1) to Dakin's case. As a rule, the want of a videlicet will never do harm where, from the nature of the case, the precise sum, date, magnitude, or extent is immaterial. (t) Where in an action for a libel contained in a pamphlet, a witness proved that the defendant had given her a pamphlet, and, on a copy being put in her hand, she said, 'This is my handwriting. I believe this to be the pamphlet; it was like it and in this form. I read different portions of it, and lent it to several persons; it was returned to me, and I then wrote this upon it. The defendant has given me different tracts at different times. I cannot swear that this is the same pamphlet he gave me. It is an exact copy, if it is not the same. It is the one I wrote upon. I cannot say I got back the same copy I lent. I only say it is exactly like it. If that is not the copy the defendant gave me, I do not know what has become of it; it was held that there was some evidence to go to (p) 1 Phil. Ev. 514. R. v. Levy, 2 Stark. R. 458. Abbott, C. J. (q) Nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened. (r) And a case might occur where time was of the essence of the offence, and yet it might not be essential to prove the precise time; as, for instance, if a statute made the doing of an act in certain months of AMERICAN NOTE. 1 See S. v. Baker, 34 Maine, 52. M'Dade v. S., 20 Ala. 51. Wingard v. S., 13 Ga. the jury that the copy was the same as the defendant had given to the witness. (u) A question frequently arises in cases where the prisoner pleads that he has been previously acquitted, whether the acquittal has been of the same offence for which he is indicted. Thus where the prisoners, having been acquitted of a rape on Mary Lee, pleaded that acquittal to another indictment for a rape on Mary Lee at the same time and place as was alleged in the other indictment, and issue was taken on the identity of the rapes charged in the two indictments, the prisoners' counsel only put in the record of the previous acquittal, and the commitment of the magistrates for a rape on Mary Lee; and Bolland, B., told the jury that it did not appear to him that there was any evidence of the identity of the rapes charged in the two indictments. (v) (u) Fryer v. Gathercole, 4 Exch. R. 262. Alderson, B., said, 'If I give a shilling to a person to take up stairs and to put away, and he hands me one back as the same, it would be a question for the jury to say whether it is the same, and there is nothing unreasonable if they find that it is.' Alderson, B., also said,Suppose I pass my hand across my eyes for an instant, so as to lose sight of the coin for a moment, cannot I prove the identity?' Pollock, C. B., treated the question as one of degree. The evidence would be weaker or stronger in proportion as the numbers of the work were more or less, and the probability of the copy being the same would be greater or less according as there had been more or less lendings of it. (v) R. v. Parry, 7 C. & P. 836, S. C. R. v. Lea, 2 M. C. C. R. 9. The jury, however, found a verdict for the prisoners, and it was held that this verdict could not be disturbed. Bolland, B., was strongly of opinion that the commitment was not admissible. In R. v. Martin, 8 A. & E. 481, Lord Denman, C. J., asked, 'Have you any authority for saying that identity is shewn prima facie by collation of the indictments? A defendant may have stolen the goods of the same party twenty times;' and on R. v. Parry being cited, Lord Denman, C. J., said, "The point as to the sufficiency of the proof was not decided by the fourteen judges.' But there is no doubt that there was no evidence whatever of identity in that case. CHAPTER THE THIRD. OF WRITTEN EVIDENCE. Of the Proof and Effect of-1. Public Documents, p. 439.-2. Private Documents, p. 469. 1. Public documents. Statutes.1-Acts of Parliament are either public or private. The printed statute book is evidence of a public statute. (a) A private Act of Parliament was usually proved formerly by a copy examined with the Parliament roll. (b) But now, by the 8 & 9 Vict. c. 113, s. 3, 'All copies of private, and local and personal Acts of Parliament not public Acts, if purporting to be printed by the Queen's printers, and all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence thereof by all Courts, judges, justices and others, without any proof being given that such copies were so printed.' By the 13 & 14 Vict. c. 21, s. 7, 'Every Act made after (A. D. 1850) shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such, unless the contrary be expressly provided and declared by such Act.' A private Act may contain clauses of a public nature, and then the Act, as far as those are concerned, is to be regarded as a public Act. Thus a clause relating to a public highway, occurring in a private Enclosure Act, has been holden provable in the same way as a public Act. (c) In some Acts of Parliament not relating to the kingdom at large, a special clause is often inserted declaring them to be public Acts, and that they shall be taken notice of as such, without being specially pleaded; in which case they are to be proved in the same manner as public Acts; it is not necessary to prove them by an examined copy, or to shew that the printed copy was printed by the Queen's printer. (d) The clause referred to was intended for the facility of proof; it will not give the Act the effect of a public Act for other purposes, as with 1 See Levy v. S., 6 Ind. 281. Pickard v. Bailey, 6 Foster, 152. Dixon v. Thatcher, 14 Ark. 141. regard to the recital of facts contained in it. (e) A clause was often formerly inserted in private Acts, providing that they should be printed by the King's printer, and that a copy so printed should be admitted as evidence of the Act. In such cases, a copy, purporting to be printed by the King's printer, will be admissible in evidence: it is not necessary to prove that the Act was purchased from the King's printer. (f) By the 41 Geo. 3, c. 90, s. 9, copies of the statutes of a Great Britain and Ireland prior to the Union, printed by the printer duly authorised, shall be received as conclusive evidence of the several statutes in the courts of either kingdom. The preamble of a public Act of Parliament, reciting that certain outrages had been committed in particular parts of the kingdom, was adjudged by the Court of King's Bench to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. (g) Journals of the Houses of Parliament. The journals of the House of Lords or of the House of Commons are evidence in criminal cases as well as in civil, and may be proved by examined copies; but the printed journals were not formerly evidence. (h) But now, by the 8 & 9 Vict. c. 113, s. 3, noticed ante, p. 439, copies of the journals of either House of Parliament, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence. thereof, without any proof being given that such copies were so printed.' Gazette. The public Acts of Government, and Acts by the King in his political capacity, are commonly announced in the Gazette, published by the authority of the Crown; and of such Acts announced to the public in the Gazette, the Gazette is admitted in courts of justice to be good evidence. (i) The Gazette itself must be produced and a cutting from it is inadmissible. () A proclamation for reprisals, published in the Gazette, is evidence of an existing war. (k) Proclamations for a public peace, or for the performance of a quarantine, and any acts done by or to the King in his regal character, may be proved in this manner, or by printed copies under the 8 & 9 Vict. c. 113, s. 3; (1) and upon the same principle, articles of war, purporting to be printed by the King's printer, are allowed to be evidence of such articles. (m) A Gazette, in which it was stated (e) 2 Phil. Ev. 129, citing Brett v. Beales, M. & M. 421. (f) 2 Phil, Ev. 129, Lincoln Sum. Ass. 1832, by J. A. Park, J. R. v. Wallace, 10 Cox, C. C. 500. Where the copy of K. an Act is incorrect, the Court will be gov But a of the Popish Plot, a resolution in the journals of the House of Commons, asserting the existence of the plot, was not allowed to be evidence of that fact. 4 St. Tr. 39, 1 Phil. Ev. 406, 7th ed.; but see 2 Phil. Ev. 106. 279. 279. (i) 2 Phil. Ev. 107, 108. 1 Stark. Ev. (1) R. v. Lowe, 15 Cox, C. C. 286. (1) See this clause, ante, p. 439. See also the Documentary Evidence Act, 1868, post, p. 441. (m) 2 Phil. Ev. 108, 109. See the 27 & 28 Vict. c. 119, as to the articles of war for the Navy. that certain addresses had been presented to the King, has been adjudged to be proper evidence to prove an averment of that fact in an information for a libel; (n) for they are addresses, said Lord Kenyon, C. J., of different bodies of the King's subjects, received by the King in his public capacity, and they thus become Acts of state. And in R. v. Forsyth, (o) the twelve judges seemed to think that the production of the Gazette would be sufficient, without proof of its being bought of the Gazette printer, or where it came from. Proclamations, &c. In R. v. Sutton (p) the Court of King's Bench determined that the King's proclamation (which recited that it had been represented that certain outrages had been committed in different parts of certain counties, and offered a reward for the discovery and apprehension of offenders) was admissible in evidence, as proof of an introductory averment in an information for a libel, that acts of outrage of that particular description had been committed in those parts of the country. By the Documentary Evidence Act, 1868, (31 & 32 Vict. c. 37): Sec. 2. Prima facie evidence of any proclamation, order, or regulation issued before or after the passing of this Act by Her Majesty, or by the Privy Council, also of any proclamation, order, or regulation issued before or after the passing of this Act by or under the authority of any such department of the Government or officer as is mentioned in the first column of the schedule hereto (9) may be given in all courts of justice, and in all legal proceedings whatsoever, in all or any of the modes hereinafter mentioned, that is to say: The Poor Law Board. By the Elementary Education Act, 1870 (33 & 34 Vict. c. 75), s. 83, the Documentary Evidence Act, 1868, shall apply to the Education Department in like manner as if the Education Department were mentioned in the first column of the schedule to that Act, and any member of the Education Department, or any secretary or assistant secretary of the Education Department, were mentioned in the second column of that schedule. By the Post-office Act, 1870 (33 & 34 Vict. c. 79), s. 21, the Documentary Evi COLUMN 2. Names of Certifying Officers. Any Secretary or Under Secretary of Any member of the Committee of Privy mittee. Any Commissioner of the Poor Law Board or any Secretary or Assistant Secretary of the said Board. dence Act, 1868, shall have effect as if the Postmaster-General were mentioned in the first column, and any secretary or assistant secretary of the post-office were mentioned in the second column of the schedule to that Act; and any approval of the Treasury under this Act shall be deemed an order within that Act. See 33 & 34 Vict. c. 14 (the Naturalisation Act, 1870), s. 12; 34 & 35 Vict. c. 70 (the Local Government Board Act, 1871), 8. 5; 36 & 37 Vict. c. 71 (the Salmon Fishery Act, 1873), s. 64. |