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 [ *98] 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. 2 Phill. Ev. 490, 8th ed.; 1st vol. p. 469, 9th ed. Proof of particular transactions in which the defendant may have been concerned, is not admissible as evidence of his general good character. It frequently happens that witnesses, after speaking to 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 favour to the prisoner than strictly as evidence of general character. Id. In cases where the intention forms a principal ingredient in the offence, a wider scope is allowed. On a charge of murder, for instance, expressions of goodwill and acts of kindness on the part of the prisoner towards the deceased are always considered important evidence. 1 Phill. Ev. 470. So evidence of antecedent menaces is admissible against the prisoner, ante, p. 96. "It has been usual," says a very sensible writer, "to treat the good character of the party accused as evidence to be taken into 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. The nature of the charge, and the evidence by which it is supported, 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 is called upon to answer.”(2) 2 Russ. by Greaves, 786. 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. Hurd v. Martin, Cowp. 331. It is not usual to cross-examine witnesses to the character of a prisoner, unless the counsel have some definite charge to which to cross-examine them. Per Alderson, B., Hodgkiss's case, 7 C. & P. 298. See further, post, tit. Practice. (2) Good character in a clear case will be of no avail. Freeland's case, 1 Rogers's Rec. 82. People v. Kirby, 1 Wheeler's C. C. 64. The State v. Wells, 1 Coxe, 424. Commonwealth v. Hardy, 2 Mass. 317. It is in case of doubtful facts, or to rebut the legal presumption of guilt arising from the possession of stolen articles, that a good character proved in court is of most effect. State v. Ford, 3 Strobhart, 517. If on the trial of an indictment the defendant introduces evidence of his good character, prior to the alleged commission of the crime charged, it is competent to the government to prove that subsequently to that time, his character has been bad. The Commonwealth v. Sackett, 22 Pick. 394. Eng Com. Law Reps. xxxii. 515. General rule.] A general rule governing the application of evidence to the points in dispute 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 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. So it was said by the court, in Hollingberry's case, 4 B. & C. 329, "In criminal cases it is sufficient for the prosecutor to prove so much of the charge as constitutes an offence punishable by law." [ *100 ] *The offence, however, of which the defendant is convicted (except in the cases of felonies, including assaults, see 1 Vict. c. 85, s. 11, post,) 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 (1) A failure to prove an unnecessary averment cannot vitiate an indictment good without the averment. U. States v. Vickery, 1 Har. & Johns. 427. 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. 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 Hale, 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. (2) 2 Hale, P. C. 302. So where the indictment was for a burglary and larceny, 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 & 8 Geo. 4, c. 27,) the judges were of opinion that by this verdiet the prisoners were ousted of their clergy, the indictment containing every charge that was required by the statute. Withal's case, 1 Leach, 89; 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. (3) Again, if a man be indicted for robbery, he may be found guilty 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. & Ry. 416, see post, p. 103. 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 (2) State v. Grisham, 1 Hayw. 12. (3) On an indictment for an assault with intent to murder, there may be a conviction of an assault simply. State v. Coy, 2 Atk. 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. Russ v The State, 1 Black, 391. See The State v. Shepard, 7 Conn. 54. State v. Taylor, 2 Bailey, 49. A defendant cannot be convicted of an inferior degree of the same offence charged in the indictment, unless the lesser offence is included in the allegations of the indictment. The State v. Shoemaker, 7 Miss. 177. Under an indictment for assault and battery with intent to kill, the defendant may be convicted of a simple assault and battery. The State v. Stedman, 7 Post. 495. Under an indictment with intent to commit murder or mayhem, the defendant cannot be convicted of an assault with intent to commit a bodily injury. Carpenter v. The People, 4 Scam. 197. Under an indictment for procuring an abortion of a quick child, which is a felony by statute, the prisoner may be convicted of a misdemeanor, if the child were not quick. The People v. Jackson, 3 Hill, 92. So on an indictment for rape, one may be found guilty of incest. The Commonwealth v. Goodhue, 2 Metc. 193. So on an indictment for manslaughter, one may be found guilty of an assault and battery. The Commonwealth v. Drum, 19 Pick. 479. The Commonwealth v. Hope, 22 Pick. 1. 1 Eng. C. C. 416. 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 [*101] 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. Where an indictment charges that the defendant did and caused to be done a certain act, as forged and cause to be forged, it is sufficient to prove either one or the other. Per Lord Mansfield, Middlehurst's case, 1 Burr. 400. Per Lord Ellenborough, Hunt's case, 2 Campb. 285. 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. & Ry. 190.° So upon an indictment for perjury it is sufficient if any one of the assignments of perjury be proved. Rhodes's case, 2 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. & Rob. 179. By the 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 as to 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 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 1007., a bill of exchange for 407., and a promissory note for 207., and it was not proved that the letter contained a bill of exchange for 1007.: 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. Ellin's case, Russ. & Ry. 188.d 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 107. at one sitting, Lord Ellenborough held that the defendant might be convicted of winning a less sum than that stated in the indict (1) Poindexter's case, 6 Rand. 668. State v. Wood, 1 Rep. Const. Ct. 29. 1 Eng. C. C. 190. ment, 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. N. P. 359. 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. & Ry. 303.f On an indictment charging several persons with an offence, any one may *be convicted. But they cannot be found guilty separately of separate [*102] parts of the charge. Where A. and B. were indicted under the statute of Anne for stealing in a dwelling-house to the value of 67. 10s., and the jury found A. guilty as to a part of the articles of the value of 67., and B. guilty as to the residue, the judges held that judgment could not be given against both; but that, on a pardon or nolle prosequi as to B., it might be given against A. Hempstead's case, Russ. & Ry. 344.8 If it be necessary to prove a prescription in an indictment, such prescription must be proved to the whole extent laid. R. v. Marquis of Buckingham, 4 Camp. 189. 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. N. P. 35. 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. N. P. 62.i Where an intent is unnecessarily introduced into an indictment, it may be rejected. Jones's case, 2 B. & Ad. 611. See post, p. 109. Descriptive averments—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, otherwise it would not appear that 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 com (1) An indictment for coining, alleged possession of a die made of iron and steel. In fact, it was made of zine and antimony. The variance was held fatal. Dorsett's case, 5 Rogers's 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 allegation. U. States v. Porter, 3 Day's Cases, 283 The Court will be more strict in requiring proof of the matters alleged in a criminal than in a civil case. Ibid. Eng. C. L. Reps. ii. 426. 1 Eng. C. C. 303. 1 Id. 344. h Eng. Com. Law Reps. xiv. 151. |