On an indictment against two, | prosecutor to elect on which count charging them with a joint offence, he will proceed. Ib. either may be found guilty; but they cannot be found guilty separately of separate parts of the charge. Rex v. Hampstead, R. & R. C. C. 344. And if they are found guilty separately, upon a pardon or nolle prosequi as to the one who stands second upon the verdict, the judgment may be given against the other. Ib. When the prosecutor must elect.]— If two bills of indictment are preferred for the same offence, the one charging it capitally, the other as a misdemeanor, and both are found, the judge will put the party upon his election which to go upon, and direct an acquittal on the other. Rex v. Smith, 3 C. & P. 412— Vaughan. If two men are indicted, and If an indictment contains a count one of them appears to be innocent for robbery, and a count for an asand the other guilty, but the prose-sault with intent to rob, the judge cutor cannot identify them respect- will put the prosecutor to his elecively, both must be acquitted. Rex tion. Rex v. Gough, 1 M. & Rob. v. Richardson, 1 Leach, C. C. 387. 71-Park. It is in the discretion of the judge Where there are counts in an inwhether he will allow several felon- dictment for forging a bill, accepties to be given in evidence under ance, and indorsement, the prosecutone indictment; where they are, in or is not driven to elect on which he fact, so mixed as not to be separ-will proceed. Rex v. Young, Peake's ated without inconvenience, it will Add. Cas. 228-Le Blanc. be allowed. Reg. v. Hinley, 2 M. & Rob. 524-Maule. Although evidence offered in support of an indictment for felony may be proof of another felony, that circumstance does not render it inadmissible, if the evidence is otherwise receivable. Reg. v. Dossett, 2 C. & K. 306-Maule. It is no ground in arrest of judgment, after a conviction for a felony, that the indictment also contains a count for a misdemeanor. Reg. v. Ferguson, Dears. C. C. 427; 6 Cox, C. C. 454; 1 Jur., N. S. 73; 28 L. J., M. C. 61. It is no ground of objection to an indictment in arrest of judgment that it contains several counts for distinct felonies. Reg. v. Heywood, L. & C. 451; 9 Cox, C. C. 479; 33 L. J., M. C. 133; 12 W. R. 764; 10 L. T., N. S. 464. The proper course to pursue, when such joinder has a tendency to embarrass a prisoner in his defence, is to apply to the judge either to quash the indictment or to compel the A prosecutor cannot maintain two indictments for misdemeanor for the same transaction: he must elect to proceed with one and abandon the other. Rex v. Britton, 1 M. & Rob. 297-Patteson. On an indictment for forgery, if a second uttering is made the subject of a distinct indictment, it cannot be given in evidence to shew a guilty knowledge in a former uttering. Rex v. Smith, 2 C. & P. 633— Vaughan. A prisoner was indicted for nightpoaching, and it was proposed to shew that on the occasion in question one of the prosecutor's gamekeepers had lost his coat, and that it was found in the prisoner's house. There was another indictment against the prisoner for stealing the coat :-Held, that this evidence was inadmissible, unless the prosecutor consented to an acquittal on the indictment for the larceny. Rex v. Westwood, 4 C. & P. 547-Patteson. A. was indicted for shooting at B., a gamekeeper; there being an other indictment against A. for night-poaching:-Held, that although both indictments related to the same transactions, yet these were offences quite distinct from each other, and that the prosecutor ought not to be put to his election to go upon one indictment and to abandon the other. Rex v. Handley, 5 C. & P. 565-Parke. If two were indicted for a conspiracy and for a libel, and at the close of the case for the prosecution, there is evidence against both as to the conspiracy, but no evidence against one of them as to the libel, the judge will put the prosecutor to elect which charge he will go upon before the defendant's counsel enters on the defence. Reg. v. Murphy, 8 C. & P. 297-Coleridge. An indictment contained counts charging various misdemeanors, amongst them counts for conspiracy. There being no evidence to go false statements as to goods deposited with them, and insured by the owners against fire; one set of counts being laid with reference to a fire occurring on the 7th of June, 1864, and another, with reference to a fire occurring on the 25th of November, 1864:-Held, that the prosecution must elect on which of the two transactions, in the first instance, to rely.. Reg. v. Barry, 4 F. & F. 389-Martin. A prisoner being charged on several counts with setting fire to a building described as in the occupation of different persons, also with setting fire to goods in a building so described, the prosecutor was not put to elect, as it might be all one act. Reg. v. Davis, 3 F. & F. 19Wightman. As to Larcenies.-See ante, to the jury upon the conspiracy. only, (t) Time and Mode of raising For the prosecution was made to elect upon which count the case should be left to the jury. Reg. v. Braun, 9 Cox, C. C. 284-Martin. 66 mal Objections. By 14 & 15 Vict. c. 100, s. 25, necessary, cause the indictment to "be forthwith amended in such par"ticular by some officer of the court every objection to any indictment "for any formal defect apparent on A party was tried upon an in- "the face thereof shall be taken by dictment which contained two "demurrer on motion to quash such counts, one for embezzlement, and "indictment before the jury shall be the other for larceny as a bailee." sworn, and not afterwards; and At the close of the case for the prose- 66 'every court before whom any such cution, it was objected that the in- " objection shall be taken for any dictment was bad for misjoinder" formal defect may, if it be thought of counts, and the court thereupon directed the counsel for the crown to elect upon which count he would proceed, the counsel for the prisoner" or other person, and thereupon contending that such a course was inadmissible. The counsel for the crown elected to proceed upon the By 7 Geo. 4, c. 64, s. 20, " in orsecond count, and on that count the "der that the punishment of offendprisoner was convicted :-Held, that "ers may be less frequently interthe conviction was right. Reg. v. "cepted in consequence of technical Holman, L. & C. 177; 9 Cox, C. C."niceties, no judgment upon any 201; 8 Jur., N. S. 1082; 10 W. R." indictment or information for any 718; 6 L. T., N. S. 474. "felony or misdemeanor, whether Certain wharfingers and their "after verdict or outlawry, or by servants being indicted in various" confession, default or otherwise, counts for conspiracy to defraud, by "shall be stayed or reversed for "the trial shall proceed as if no "such defect had appeared." 66 66 66 66 " 66 "want of the averment of any mat- "felony or misdemeanor there shall "ter unnecessary to be proved, nor appear to be any variance between "for the omission of the words as "the statement in such indictment, appear by the record, or of the" and the evidence offered in proof "words with force and arms, or of " thereof, in the name of any county, "the words against the peace, nor "riding, division, city, borough, "for the insertion of the words "town corporate, parish, township, 'against the form of the statute, or place mentioned or described "instead of the words against the" in any such indictment, or in the "form of the statutes, or vice versâ, name or description of any person "nor for that any person or persons or persons, or a body politic or cor"mentioned in the indictment of in- porate, therein stated or alleged "formation is or are designated by a to be the owner or owners of any "name of office or other descriptive" property, real or personal, which "appellation, instead of his, her, or "shall form the subject of any 66 their proper name or names, nor "offence charged therein, or in the "for omitting to state the time at name or description of any person "which the offence was committed, or persons, body politic or corpor"in any case where time is not of "ate, therein stated or alleged to be "the essence of the offence, nor for "injured or damaged, or intended "stating the time imperfectly, nor" to be injured or damaged, by the "for stating the offence to have" commission of such offence, or in "been committed on a day subse- "the christian name or surname, or quent to the finding of the indict-"both christian name and surname, "ment or exhibiting the informa-"or other description whatsoever ❝tion, or on an impossible day, or of any person or persons whomso"ever therein named or described, "or in the name or description of "any matter or thing whatsoever "therein named or described, or in 66 66 66 on a day never happened, nor for "want of a proper or perfect venue, "where the court shall appear by "the indictment or information to "have had jurisdiction over the of" the ownership of any property "fence." "named or described therein, it A defendant in an indictment" shall and may be lawful for the cannot, after plea, take advantage" court before which the trial shall of any defect which is aided after" be had, if it shall consider such verdict by 7 Geo. 4, c. 64, s. 20;" variance not material to the merits the only mode of taking advantage "of the case, and that the defendof such defects being by demurrer."ant cannot be prejudiced thereby Reg. v. Ellis, Car. & M. 564; S. P.," in his defence on such merits, to Reg. v. Law, 2 M. & Rob. 197. "order such indictment to be An indictment charged the com- "amended, according to the proof, by mission of the offence in the 10th" some officer of the court or other year of our Sovereign Lady Vic-" person, both in that part of the intoria," not saying "of the reign": "of the reign":"dictment where such variance oc-Held, that the objection, if other-"curs and in every other part of wise valid, was cured by 7 Geo. 4," the indictment which it may be c. 64, s. 20. Brown v. Reg. 3 Cox, come necessary to amend, on such C. C. 49; 17 L. J., M. C. 152; 12" terms as to postponing the trial to Q. B. 834. "be had before the same or another "jury, as such court shall think reasonable. (u) Amendment. Statutory Power.]-By 14 & 15 Vict. c. 100, s. 1, "whenever on the "trial of any indictment for any "And after any such amendment "the trial shall proceed, whenever "the same shall be proceeded with, "in the same manner in all respects, Validity of Verdicts and Judg"and with the same consequences, ments after Amendment.]-By s. "both with respect to the liability 2, "every verdict and judgment "of witnesses to be indicted for per- "which shall be given after the "jury and otherwise, as if no such " making of any amendment under "variance had occurred; and in "the provisions of the act shall be 66 I case such trial shall be had at Nisi" of the same force and effect in "Prius, the order for the amend-" all respects as if the indictment ment shall be indorsed on the "had originally been in the same postea, and returned together with" form in which it was after such "the record, and thereupon such "amendment was made." 66 66 66 66 " papers, rolls, or other records of "the court from which such record Form of Records after Amend"issued as it may be necessary to ment.]-By s. 3, 66 if it shall be"amend, shall be amended accordcome necessary at any time for "ingly by the proper officer; and in any purpose whatsoever to draw "all other cases the order for the " up a formal record in any case "amendment shall either be indorsed" where any amendment shall have "on the indictment or shall be en- "been made under the provisions "grossed on parchment, and filed, "of the act, such record shall be "together with the indictment," drawn up in the form in which 66 among the records of the court. "the indictment was after such "Provided, that in all such cases "amendment was made, without "where the trial shall be so post- "taking any notice of the fact of "poned as aforesaid it shall be law-" such amendment having been "ful for such court to respite the "made." "recognizances of the prosecutor and "witnesses, and of the defendant, On Demurrer or Motion to quash "and his surety or sureties, if any, Indictment.]-By s. 25, " every obaccordingly, in which case the "jection to any indictment for any prosecutor and witnesses shall be "formal defect apparent on the "bound to attend to prosecute and "face thereof shall be taken, by "give evidence respectively, and "demurrer or motion to quash such "the defendant shall be bound to "indictment, before the jury shall "attend to be tried at the time and" be sworn, and not afterwards; "place to which such trial shall be" and every court before which any postponed, without entering into "such objection shall be taken for any fresh recognizances for that "any formal defect may, if it be purpose, in such and the same 'thought necessary, cause the inmanner as if they were originally "dictment to be forthwith amend"bound by their recognizances to "ed in such particular by some appear or prosecute or give evi-"officer of the court or other per"dence at the time and place to son, and thereupon the trial shall "which such trial shall have been "proceed as if no such defect had 66 postponed: "appeared." 66 66 66 66 66 Provided always, that where any such trial shall be to be had Meaning of Indictment.]-By s. "before another jury, the crown 30, "the word indictment includes "and the defendant shall respect-"information, inquisition, and pre"ively be entitled to the same chal-"sentment as well as indictment, "lenges as they were respectively "and also any plea, replication, or "entitled to before the first jury "other pleading, and any Nisi Priwas sworn." us record." 66 Amendment." Whereas a fail"ure of justice frequently takes "place in criminal trials by reason "of variances between writings "produced in evidence and the re"cital or setting forth thereof in "the indictment or information, "and the same cannot now be "amended at the trial except in 66 cases of misdemeanor, for remedy "thereof, be it enacted, that it shall "and may be lawful for any court "of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the in"dictment or information for any "offence whatever, when any variance or variances shall appear "between any matter in writing or "in print produced in evidence and "the recital or setting forth thereof "in the indictment or information "whereon the trial is pending, to "be forthwith amended in such "particular or particulars by some "officer of the court, and after such "amendment the trial shall proceed "in the same manner in all re"spects, both with regard to the "liability of witnesses to be in"dicted for perjury and otherwise, as if no such variance or vari"ances had appeared" (11 & 12 Vict. c. 46, s. 4.) 66 Exercising.]-As a general rule, a judge on the trial of an indictment will not allow an amendment to be made after the counsel for the defence has addressed the jury. Reg. v. Rymes, 3 C. & K. 326— Williams. But see Reg. v. Fullarton, 6 Cox, C. C. 194-Ir. C. C. R. The proper course is for the prosecutor's counsel to adduce all his evidence and ask for the amendment before he closes his case, and if the amendment is made the prisoner's counsel addresses the jury on the indictment as amended. Ib. An amendment in the name of the owner of stolen property may be made at the trial. Reg. v. Vincent, 2 Den. C. C. 464. Where stolen property has been laid in a wrong person, the indictment may be amended, even after the counsel for the prisoner has addressed the jury and closed his case. Reg. v. Fullarton, 6 Cox, C. C. 194-Ir. C. C. R. A judge has power to amend the description of an act of parliament in an indictment. Reg. v. Westley, Bell, C. C. 193; 29 L. J., M. C. 35; 5 Jur., N. S. 1362. By 12 & 13 Vict. c. 45, s. 10, "every court of general or quarter "sessions of the peace, on the trial "of any offence within its jurisThe court will not amend an indiction, whenever any variance dictment by striking out the word or variances shall appear between" feloniously," and thereby convert any matter in writing or in print, the charge into a misdemeanor, produced in evidence, and the re- where the document given in evi"cital or setting forth thereof in dence to sustain a charge of forgery "the indictment, shall have the will not sustain the charge of felsame power in all respects to ony, although evidence of a com"cause the indictment to be amend- mon law misdemeanor. Reg. v. ed, which is given to courts of Wright, 2 F. & F. 320-Hill. oyer and terminer and general A. and B. were indicted for as"gaol delivery, with regard to of saulting a gamekeeper, they being "fences tried before such last-men- unlawfully upon land in the occu"tioned courts by virtue of the 11 pation of one George William "& 12 Vict. c. 46, s. 4, and after Frederick Charles Duke of Cam"such amendment the trial shail bridge." A witness proved that 66 proceed in the same manner in " George William" were two of 66 |