ecution. But it must be observed, that it is necessary to plead it the first opportunity the defendant may have of so doing; for if, for instance, he have obtained a pardon before arraignment, and, instead of pleading it in bar, he plead the general issue, he shall be deemed to have waived the benefit of it, and cannot afterwards avail himself of it in arrest of judgment. R. v. Norris, 1 Ro. Rep. 297, Kel. 25. What has now been mentioned, however, relates to the King's pardon only; for a statute pardon need not be pleaded, Fost. 43. Standf. 103 a. 3 Inst. 234. Plowd. 83, 84, unless there be exceptions in it; 2 Hale, 252. 3 Inst. 334; nor can the defendant lose the benefit of it by his own laches or negligence.

Formerly, pardon could only be pleaded under the great seal, Bull v. Tilt, 1 B. & P. 199. See R. v. Beaton, 1 W. Bl. 479. R. v. Miller, 2 Id. 799. Bullock v. Dodds, 2 B. & A. 258; in which case the letters patent are set out with profert, and the plea concludes thus:-" By reason of which said letters patent, the said J. S. prays that by the court here he may be dismissed and discharged from the said premises in the said indictment specified." But now, in the case of a free or conditional pardon, under the King's sign manual countersigned by one of the secretaries of state, the discharge of the offender from custody in the former case, or the performance of the condition in the latter, has the effect of a pardon under the great seal as to the felony for which the pardon is granted, but will not prevent or mitigate the punishment in any subsequent conviction for any felony committed after the granting any such pardon. 7 & 8 G. 4, c. 28, s. 13. If there be any variance in the description of the offence or party between the pardon and the indictment, it may be made good in the plea by averments of identity, in the same manner as in the plea of guterfois acquit. See ante, p. 84.

SECT. 6.

General Issue.

THE general issue is pleaded by the prisoner vivá voce at the bar, in these words, "not guilty;" by which plea, without further form, every person, not having privilege of peerage, upon being arraigned upon any indictment for treason, felony, or piracy, is deemed to have put himself upon the country for trial. 7 & 8 G. 4, c. 28, s. 1. And if any person being arraigned upon, or charged with, any indictment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information, the court may order the proper officer to enter a plea of" not guilty," on behalf of such person; and the plea so entered shall have the same

force and effect as if such person had actually pleaded the same. 7 & 8 G. 4, c. 28, s. 2. When the record is made up, the general issue appears upon it thus: "And he the said J. S., forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, saith that he is not guilty thereof; and therefore for good and evil he puts himself upon the country;" And the similiter is then added thus: "And J. N.," (the clerk of the peace or clerk of arraigns), "who prosecutes for our said lord the King in this behalf, doth the like." Therefore let a jury come, &c., so proceeding with the award of the venire.

In informations, and in indictments for not repairing roads and bridges, &c., where the defendant is allowed, ex gratiá, to appear by attorney, the general issue is regularly engrossed, and filed with the proper officer. It is in form thus: "And the said J. S. by A. B. his attorney cometh into court here, and having heard the said indictment [or information] read, saith, that he is not guilty of the said premises in the said indictment [or information] above specified and charged upon him; and of this the said J. S. puts himself upon the country." Afterwards in making up the record, the similiter is added thus: "And J. N., who prosecutes for our said lord the King in this behalf, doth the like," if it be pleaded to an indictment at the assizes or sessions; or if to an indictment in the King's Bench, then thus: "And Edmund Henry Lushington, Esquire, coroner and attorney for our said lord the King, in the court of our said lord the King, before the King himself, who prosecutes for our said lord the King in this behalf, doth the like;" or if to an information, then thus: "And the said attorney-general, [or coroner and attorney] of our said lord the King, who prosecutes as aforesaid for our said lord the King, doth the like."

The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence, as stated in the indictment or information. On the other hand, the defendant may give in evidence, under this plea, not only every thing which negatives the allegations in the indictment, but also all matter of excuse and justification.

88

BOOK I.

PART II.

EVIDENCE GENERALLY.

CHAPTER I.

WHAT ALLEGATIONS MUST BE PROVED.

WHERE the defendant pleads the general issue, not guilty, the prosecutor is obliged to prove at the trial every fact and circumstance stated in the indictment, which is material, and necessary to constitute the offence. So, where the replication, or other pleading on the part of the prosecution consists of a general traverse of the defendant's pleading, the defendant must prove the facts thus traversed and put in issue. See Arch. Pl. & Ev. 329, 330. The parts of a pleading, required to be thus proved, may be considered under the following heads:

Time]-The day and year on which facts are stated in the indictment or other pleading to have occurred, are not in general material; and the facts may be proved to have occurred upon any other day previous to the preferring of the indictment. See ante, p. 35. R. v. Charnock, Holt, 301, 1 Salk. 288. 9 St. Tr. 587-605. 543-552. Fost. 7, 8. To this rule, however, there are these exceptions: namely, First, That in all cases where bills of exchange, promissory notes, or other written instruments, not under seal, are pleaded, the date, if stated, must correspond with the date of the instrument when produced in evidence at the trial. Coxon v. Lyon, 2 Camp. 307, n. See Freeman v. Jacob, 4 Camp. 209. Arch. Pl. & Ev. 331, 332. Secondly, as deeds may be pleaded either according to the date which they bear, or to the day on which they were delivered, (Arch. Pl. & Ev. 100), if a deed produced in evidence bear date on a day different from that stated in the pleading, the party producing it must prove

that it was in fact delivered on the day alleged in the pleading. Thirdly, if any time stated in a pleading is to be proved by matter of record, it must be correctly stated. See Grey v. Bennet, 1 T. R. 656. Pope v. Foster, 4 T. R. 590. Woodford v. Ashley, 11 East, 508. Rastall v. Stratton, 1 H. Bl. 49; 2 Saund. 291 b. In these several respects, any the slightest variance between the time so stated, and that appearing from the instrument or record, when produced, will, in felonies, be fatal; but, in misdemeanors, the variance may, in certain cases, be amended at the trial. 9 G. 4, c. 15. see post, p. 95. Fourthly, when the precise date of any fact is necessary, to ascertain and determine with precision the offence charged, or the matter alleged in excuse or justification, any the slighest variance between the pleading and evidence in that respect will be fatal. See Arch. Pl. & Ev. 332. And lastly, where time is of the essence of the offence, as in burglary and the like, the offence must be proved to have been committed in the night time; although the day on which the offence is charged to have been committed is immaterial, and it may be proved to have been committed on any other day previous to the preferring of the indictment. In murder, also, the death must be proved to have taken place within a year and day from the time at which the stroke is proved to have been given.

Place]-It is not necessary to prove that the facts stated in the indictment or other pleading occurred in the parish or place therein alleged; it is sufficient to prove that they occurred within the county or other extent of the court's jurisdiction. 2 Hawk. c. 25, s. 84. Ante, p. 35. But they must be proved to have been committed within the county, or other extent of the court's jurisdiction, otherwise the defendant must be acquitted. See ante, p. 34, 35. And where a forged bill of exchange was found upon J. S., who resided in Wiltshire, and had resided there about a year, under a false name, but which bill bore date more than two years previously to its being found upon him, and at a time when he lived in Somersetshire; on an indictment against him for a forgery of the bill in Wiltshire, this was holden not to be sufficient evidence of the offence having been committed in that county. R. v. Crocker, New Rep. 87. See R. & R. 99, n. But although the offence must be proved to have been committed in the county where the prisoner is tried, after such proof, the acts of the prisoner in any other county tending to establish the charge against him are properly admissible in evidence. 1 Ph. Ev. 206. If there be no such place as that stated in the indictment, it is immaterial. The stat. 9 H. 5, st. 1, c. 1, s. 3, (see 7 H. 5, c. 18, and 18 H. 6, c. 12), which declared the indictment to be void in such a case, is now repealed; and a further ground for the objection is removed by the jury in criminal cases being now returned de corpore comi

tatus. 6 G. 4, c. 50, s. 20. An indictment alleged a highway robbery to have been committed in the parish of St. Thomas Pensford, but the witnesses called it the parish of Pensford, upon which it was objected that there was no proof that there was in the county any such parish as that laid in the indictment: Littledale, J., before whom the indictment was tried, said, that the objection was not valid, and that he had once reserved a case for the opinion of the judges upon the very point, and a great majority of the judges held, that it was not incumbent upon the prosecutor to prove affirmatively the existence within the county of the parish laid in the indictment, and expressed a doubt how they should hold, even where it was proved negatively for the prisoner that no such parish existed. R. v. Dowling, R. & M. N. P. 433.

To the above rule, as to the parish and place being immaterial, there are, however, these exceptions: namely, First, that if the statute upon which the indictment is framed, give the penalty to the poor of the parish in which the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. Secondly, upon an indictment against a parish for not repairing a road, the part of the road out of repair must be proved to be within the parish; and the same in all other cases, in which the place where the fact occurred is a necessary ingredient in the offence. Thirdly, if a place mentioned in pleading be stated as part of the description of a written instrument, or is to be proved by matter of record, any the slightest variance between the place as stated, and that appearing from the written instrument or record when produced, will in felonies be fatal; See Pitt v. Green, 9 East, 188. Pool v. Court, 4 Taunt. 700. Goodtitle v. Walter, Id. 761. Morgan v. Edwards, 6 Taunt. 394. Goodtitle v. Lammiman, 2 Camp. 274; but, in misdemeanors, the variance may be amended at the trial. 9 G. 4, c. 15. see post, p. 95. And lastly, where the place is stated as matter of local description, and not as venue merely, the slightest variance between the description of it in the indictment, and the evidence, will be fatal; even though the injury be partly local, and partly transitory; for the whole being one entire fact, the local description becomes descriptive of the transitory inquiry. R. v. Cranage, Salk. 385. 2 Stark. Ev. 1571. Thus, for instance, in an indictment for stealing in the dwelling-house, &c., for burglary, arson, or for forcible entry, or the like, if there be the slighest variance between the indictment and evidence in the name of the parish or place where the house is situate, or in any other description given of it, the defendant must be acquitted. The rule is the same, in this respect, in criminal cases, as in civil actions. And where, in an action for non-residence, the parish was styled in the declaration St. Ethelburg, and the real name appeared in