belonged to B., the court supported an amendment which laid the property in D. (n). It is doubtful, however, whether, in every case, the power of amendment at trial extends so far as to allow a charge of stealing goods from A. B. to be converted into a charge of stealing them from C. D. In an Irish case (o), such an amendment has been allowed even after the prisoner's counsel had addressed the jury; and the ruling of Williams, J., in R. v. Rymers (p) was disapproved. Where such an amendment was not made, the court, without deciding whether it might have been made, held that an acquittal on a charge of stealing goods from A. B. would not sustain a plea of autrefois acquit on a charge against the prisoner of stealing the same goods from C. D. (q).

In perjury alleged to have been committed on the trial of B. "for setting fire to the barn of P.," the certificate of the trial and conviction of B. stated it to be "for setting fire to a stack of barley." It appeared that the barn and stack of barley were burning at the same time; and Williams, J., directed the indictment to be amended according to the certificate, considering the case within the words of sect. 1, “in the name or description of any matter or thing whatsoever," and observing that this was one of the very cases for which the statute was passed (r); but where a prisoner was charged with obtaining money on a false pretence, that he had served an order of affiliation on A., which he had not served, and the evidence proved only a statement by him that he had left it with a third person for A., it was held that this was a material variance which could not be amended (s). So, where the indictment charged the concealment of a birth by placing the body in and among a heap of carrots, and the evidence was that it was placed on the back of the heap, Crompton, J.,

(n) R. v. Vincent, 2 Den. 464.
(o) R. v. Fullarton, 6 Cox, C. C.

194.

(p) 3 C. & K. 326.

(q) R. v. Green, 1 D. & B. 113.
(r) R. v. Neville, 6 Cox, C. C. 69.
(s) R. v. Bailey, 6 Cox, C. C. 29.

held the variance material, and refused an amendment (t). A material omission in an indictment cannot be supplied. Thus, on a charge of perjury, an omission to state a material allegation in the indictment is a defect of substance, and not of form, which ought not to be amended (u).

If the evidence proves a variance as to the christian name of a person named in an indictment as matter of description, the court may amend by striking out all the names; but not by striking out merely some of the names which have been inserted, and not proved. Where the indictment charged an assault on a gamekeeper of George William Frederic Charles, Duke of Cambridge, and the first two names alone were proved, it was held that the Court of Quarter Sessions might have amended by striking out all the names except that of "Duke of Cambridge," but that they were not bound so to amend; and that therefore the allegations, although unnecessary, ought to have been proved (x). Where, however, the prisoner was indicted for forgery as a statutable felony, but the offence proved was holden to be a misdemeanor, Hill, J., refused an amendment, on the ground that the statute does not permit an alteration of the nature or quality of the offence charged (y).

The 9th section of the Act enacts that a prisoner charged with a felony may be convicted of an attempt to commit a felony, if it shall appear on the evidence that he did not complete the offence charged; and in like manner, if charged with a misdemeanor, he may be convicted of an attempt to commit a misdemeanor. The 12th section enacts, that if on a trial for misdemeanor the evidence proves a felony, the prisoner may either be convicted of the misdemeanor, and prove the conviction in bar of a subsequent trial for the same offence, on a charge of felony, or the court may discharge

(t) 6 Cox, C. C. 391.

(u) Per Byles, J., R. v. Harvey, 8 Cox, C. C. 102.

(x) R. v. Frost, 1 Dears. 474.

(y) R. v. Wright, 2 F. & F. 320.

the jury from giving a verdict, and direct the prisoner to be indicted for the felony.

This Act is intended, as stated by its author, Lord Camp-. bell, "to apply to all cases where amendments may be made in furtherance of justice, and where the defendant cannot be prejudiced in his defence, on the merits, by such amendment" (z).

It has been ruled that an amendment will not be allowed after the counsel for the prisoner has addressed the jury. The proper course is that, where the counsel for the prosecution has given all the evidence that he means to give, he should, if he wishes for an amendment, ask for it before he closes his case; and then, if the amendment is allowed, the counsel for the prisoner will address the jury on the indictment as amended (a).

The effect of the 14 & 15 Vict. c. 100, has been virtually to abolish the multitude of technical subtleties, which were formerly the means of defeating justice, and procuring unreasonable verdicts of acquittal after the substance of the charge had been proved. The responsibility of letting loose on society a criminal, of whose guilt no reasonable auditor has entertained a doubt, no longer rests on the shortcomings of the legislature, but on the discretion of the judge; but, as it is his duty to amend a defective indictment, when the prisoner cannot fairly complain that he is required suddenly to meet a charge for which he is not prepared, so it is equally the duty of a judge not to endanger the liberty of the subject, nor to encourage the carelessness of prosecutors, by permitting the form of an indictment to be altered substantially from what it was when the prisoner was called on to plead to it. On this head, it has been said by a learned writer, that no general rule can be laid down for the guidance of the court in all cases. It is possible that an amendment,

(z) R. v. Sturge, 3 E. & B. 734.

(a) R. v. Rymers, 3 C. & K. 326.

which in one case would not prejudice a prisoner, might in another case prejudice him materially. The inclination of the court will still be in favorem vitæ. The court will look at all the circumstances of the case to ascertain whether the transaction would be changed by the amendment, and will not forget that the protection of the weak from oppression, and of the presumptively innocent from injustice, are higher objects, even in the estimation of positive law, than the detection and punishment of the guilty.

CHAPTER V.

THE RELEVANCY OF EVIDENCE.

SINCE it is the object of pleading to reduce the case of each litigating party to one or more substantial issues which involve the merits of the question, and since, for this purpose, none but material allegations which tend to the raising of such issues are admissible, so it is the object of evidence to provide that, when such allegations have been made, and such issues selected, they shall be supported by strictly relevant proof. The rule is that—

The evidence must correspond with the allegations, and be confined to the points in issue.

Or as it is sometimes stated that

The evidence must be relevant to the issue

On this subject the Judicial Committee of the Privy Council once said, "This case is one of considerable importance, and their lordships desire to take advantage of it for the purpose of pointing out the absolute necessity that the determination in a cause should be founded upon a case either to be found in the pleadings, or involved in or consistent with the case made thereby (a).

"Evidence," says Mr. Best, "may be rejected as irrelevant

(a) Eshenchunder Singh v. Shamachurn Bhutto, 11 Moo. Ind. App. 20.