SECTION V.

OF THE PARTS OF THE CHARGE WHICH MUST BE SUPPORTED

BY PROOF.

In order to convict the prisoner or defendant, the prosecutor must always prove so much of the indictment as will amount to a complete allegation of an offence of the same quality and degree for which he is indicted; though it need not be proved to the full extent charged (1). Thus, on an indictment for felony, if a misdemeanour only be proved, the prisoner must be acquitted (m); but he may be found guilty of a felony of lesser atrocity; e. g. on an indictment for murder, he may be convicted of manslaughter: on an indictment for burglary, of stealing in a dwelling-house (n): on a like indictment, where the breaking is proved, but not shown to have taken place between nine at night and six in the morning, of breaking into the house and stealing therein (o); on an indictment for breaking into a house and stealing therein, of simple larceny: and of an assault, if" included " in the felony charged(p). Where a common law felony or misdemeanour is by statute subjected to more severe punishment if committed under particular circumstances, a person indicted under the statute may be convicted of the common law offence, if the prosecutor fail in proving the circumstances which would make it punishable by the statute (g). Thus if an indictment is framed on a statute which does not embrace the offence charged, the prisoner may be convicted of simple larceny at common law (r). A charge in the plural, as of extorting twenty shillings (s), or of conspiring to prevent workmen from continuing to work (t), is supported by proof of extortion of one shilling, and of conspiring to prevent one workman from working. If two intents are charged for one act, as assaulting a girl with intent to abuse and carnally know her, it will be enough to prove either (u), for the averment is divisible. So it is enough to prove a

(1) R. v. Hollingberry, 4 B. & C. 330; 6 Dowl. & Ry. 344; R. v. Hunt, 2 Campb. 585.

(m) R. v. Westbeer, Stra. 1133; 1 Leach, 12, S. C.; and vice versa, ante, p. 321.

(n) R. v. Butterworth and others, Russ. & Ry. 420; Reg. v. Jones, C. & Mar. 218; Maule, J., and Rolfe, B.; and see 1 Stark. Ev. 2nd edit. 372, 379. (0) Reg. v. Stanbrook, Berks Lent Ass. 1843, Wightman, J.

(p) See post, Chap. VII. sect. 14. (2) 2 Hale, 191, 192.

(r) R. v. Beaney, R. & Ry. 416. An indictment for stealing a "colt," framed on 1 Ed. VI. c. 12, s. 10; 2 Ed. VI. c. 33.

(s) R. v. Burdett, 1 Ld. Raym. 149; R. v. Carson, R. & Ry. 303.

(t) R. v. Byderdike, 1 M. & Rob. 179.

(u) R. v. Dawson, 3 Stark. R. 62. See R. v. Evans, id. 35; and by J. Parke and Taunton, Js., R. v. Jones, 2 B. & Adol. 615; and R. v. Middlehurst, 1 Burr. 400.

larceny of one of several articles charged to have been stolen by the defendant (x). So on an indictment for a misdemeanour in assaulting a constable in the discharge of his duty, the defendant may be convicted of a common assault. But where it may be doubtful whether the aggravations of the offence will be proved, it is always well to insert a count without them, on which, without difficulty, a verdict may be taken. As to cases of charging several jointly with a single offence, and conviction of separate parts of that offence, see post, sect. 14 of this Chapter as to verdicts.

What Averments, as Time, Place, &c. require Proof.]-We have already seen that there are averments in the indictment, which, though required by the technical accuracy of the law to be inserted, need not be proved. For instance, the day or hour of committing the offence is never material. Where, indeed, time is of the essence of the offence, it must appear to have been done at such an hour as will constitute the crime; but it need not be proved even then at the precise hour laid in the indictment. Thus, on a prosecution of a person for being "found armed at night, with intent to kill game," it must be shown that the defendant was found between the hours which the statute defines to be "night" for its purposes; but the proof need not further correspond even here with the allegation (y). As to place, it is always necessary to show that the offence was committed within the county, city, borough, or other part of the county to which the jurisdiction of the court extended, where the venue is laid; or that such part of the transaction occurred there as may give the court jurisdiction to try it; except where the common law locality of offences has been superseded by statutable provision (z). And where the offence is, in its nature, local, that is, where local description of place is of the essence of the charge, as in injuries to real property, burglary, stealing in a dwelling-house, forcible entry, or the like (a), the parish or vill laid in the indictment must be correctly proved. But in other cases, although a vill must be stated, the offence may be proved in. any other vill within the county, provided there be in the county such a vill as is laid; for it has been said that, though the prosecutor need. not prove affirmatively that there is, if it be proved that there is not,

(x) 2 Hale, 302; R. v. Ellins, R. & Ry. 188.

Ante, p. 384. (z) See ante, p. 178.

Ante, p. 209. R. v. Woodward (Joseph), 1 Mood. C. C. 322. The first

and second counts in that case are not open to the objection made in Archb. Pl. & Ev. 264, 6th ed. viz. that the indictment gave no local description to the property burned.

the prisoner must be acquitted (b). However, this was held otherwise in an indictment for setting fire to a stack of beans, to which local description was given, by laying a parish, &c. and stating the stack to be there situate, the judges holding that charge to be transitory only, with nothing of locality in it (c).

With respect to the charge itself in the record on which the prosecutor relies, the material description must always be accurately proved; though unnecessary averments introducing or accompanying it may be rejected as surplusage. Thus, the name of the owner of goods stolen ; of the party alleged to have been killed (d); of the owner of a dwellinghouse broken (e), must always be proved as laid, otherwise the prisoner would be convicted of one offence on a record charging another (ƒ). And a written instrument set out as a libel, must be proved as alleged, for a variance will be fatal. As it has been holden that the court of quarter session is not, according to technical acceptation, a court of "oyer and terminer" (g), it seems that 9 G. IV. c. 15, gives the sessions no power to amend in misdemeanour; so that on a material variance there, the defendant must still be acquitted.

When it will suffice to prove One of two Things charged.]-When the indictment charges that the defendant did two things, either of which is an offence of the same degree, it will be sufficient to prove that he did either. Thus, on an indictment alleging that the prisoner "forged, and caused to be forged," it is enough to show either (h). And if a party be charged with composing, printing, and publishing a libel, he may be found guilty either of printing or publishing merely. "For," as observed by Lord Ellenborough, "this distinction runs through the whole criminal law; and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified" (i).

The Prosecutor must prove the Affirmative.]-In general, the proof of the entire issue, on the plea of "not guilty," lies in the first instance on the prosecutor, who must establish every thing essential to the

(b) See 3 Campb. 77; R. v. Bullock and another, 1 Mood. C. C. R. 325; R. v. Dowling, Ry. & M. N. P. C. 433; but see ante, p. 211.

(c) R. v. Woodward, 1 Mood. C. C. R, 323.

(d) R. v. Brinklett, 5 C. & P. 416. (e) Secus if the indictment charges "robbery in a dwelling-house," and

robbery is proved; for the offence is
complete without proving anything about
the dwelling-house, Pye's case, East's
P. C. 785; Johnston's ca. id. 786.
(ƒ) Ante, p. 218.

(g) Ante, p. 160.

(h) R. v. Middlehurst, 1 Burr. R. 400.

(i) R. v. Hunt, 2 Campb. 196.

charge (k). Thus, on an indictment against a parish for not repairing a highway, he must, on the plea of not guilty, show that the way is a public way; that the part stated to be out of repair lies within the parish; and that it is, in fact, out of repair. In general, however, a mere negative averment, though necessary to be alleged by a prosecutor in consequence of the rule of pleading on a statute, need not be proved by him, where the affirmative must be in the knowledge of the defendant; thus, in an information for sporting without a qualification before the late act 1 & 2 W. IV. c. 32 abolished qualification, it was not necessary to show the absence of it, though it must have been negatived in the conviction (1); and on an information for selling ale by retail without due license, it lies on the defendant, when shown to have sold ale, to prove his license (m). Knowledge and intent, when material, must be made out by the prosecutor: he cannot, of course, make them out by direct evidence, unless when they have been confessed; but both may be gathered from the conduct of the party as shown in proof; and when the tendency of his actions is direct and manifest, he must always be presumed to have designed the result when he acted. Counsel for a defendant accused of misdemeanour may, at a trial, dispense with formal proof by the prosecution, but attornies cannot agree to do so previously (n).

SECTION VI.

OF THE DEGREE (OR QUANTITY) OF PROOF REquired to
SUBSTANTIATE A CHARGE.

Of the Quantity of Proof required.]—The quantity of proof necessary to support a charge must, of course, depend in general on the circumstances of each case, for which no rules can be given. In treason and in perjury, indeed, two witnesses are required; but as neither of these offences is cognizable at the sessions, it is unnecessary to enter into these exceptions. A single witness swearing to the actual crime, or to such facts as necessarily lead to the inference that it has been committed, if unshaken and uncontradicted, is quite sufficient to substantiate the charge. And the prisoner's confession before a magistrate,

(*) 9 Coke, 57, b; 8 Mod. 357; Co. Lit. 282, a.

(1) R. v. Turner, 5 M. & S. 206. (m) R. v. Hanson, 4 B. & Ald. 519. On 35 G. III. c. 113, which, being a

police act, is not repealed by 48 G. III.
c. 143; R. v. Drake, 6 M. & S. 116, or
by 9 G. IV. c. 61, s. 35. See id. 318.
(n) R. v. Thornhill, 8 C. & P. 575.
Perjury.

if made in consequence of a charge against him, and in a direct and positive manner, voluntarily and without promise or threat operating on his mind at the time of making it, is sufficient, standing alone, to be presented to the jury, and for them to convict upon, if they believe it to be true (o); even though there is no proof aliunde that the crime charged was committed (p).

Degree of Proof-Evidence of Accomplice.]-Again, in point of law, as an accomplice is a competent witness, a jury believing his story might convict on his testimony alone, and such conviction would be valid (q). But it is usual for judges, in the exercise of a sound discretion, to direct the acquittal of a prisoner, unless the accomplice be corroborated by evidence admitting of no suspicion, not as to the whole case, for then the testimony would be needless, but as to such parts as satisfactorily show that he has not fabricated the story. And he should be confirmed in some facts affecting the individuals whom he accuses; e. g. by showing the prisoner and the accomplice together under circumstances which were not likely to have occurred unless there had been concert between them (r); because otherwise his whole narrative may be true in its circumstances, and abundantly confirmed, and yet false as to the alleged actors. But this is a mere matter for the discretion of the court; and there have been instances where, on consideration, it has been deemed proper to convict and to execute prisoners on the evidence of an accomplice who was confirmed as to others of the party, but not as to those executed (s). On the other hand, in a case of great importance (t), where an accomplice swearing positively to several prisoners was confirmed as to some, and not confirmed as to others, Vaughan, B., recommended the jury to acquit the latter, and they were accordingly acquitted, while those as to whom the accomplice was confirmed were convicted and executed. But where, on an indictment against a principal for stealing, and accessories for receiving, the case against the principal was proved by the testimony

(0) See further, p. 507. R. v. Wheeling, 1 Leach, 311, n.; R. v. Eldridge, R. & Ry. 440. See cases collected, Archb. on Cr. Pl. & Ev. 106, 6th ed. (p) R. v. Falkner and Bond, R. & Ry.

482.

(q) R. v. Attwood, 2 Leach, 521; cited in R. v. Jones, 2 Campb. 132.

(r) R. v. Farler, 8 C. & P. 106; where in a case of night poaching, on 9 G. IV. c. 69, s. 9, the only confirmation of the

accomplice's testimony was that he and the prisoner were drinking together at a public house, commonly frequented by the prisoner, and left the house together when shut up for the night.

(s) R. v. Dawber, 3 Stark. N. P. C. 34; R. v. Jones, 2 Campb. 133; R. v. Birkett, R. & Ry. 252.

(1) R. v. Field and others, Berks Spring Assizes, 1828.