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pleaders. But the insertion of a scilicet will qualify and render it unnecessary to prove exactly, only immaterial averments which are not matter of description.1 The rule that it is enough to prove the substance of the issue holds still more strongly in criminal than in civil cases. Thus, where a defendant was indicted for that he had composed, printed, and published a libel, only publication was proved; but Lord Ellenborough said that this warranted a conviction, and added: "If an indictment charges that a defendant did, and caused to be done, a particular act, it is enough to prove either. This distinction runs through the whole of the 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.' So, on an indictment for two connected felonies, the prisoner may be acquitted of one and convicted of the other; as, where he is charged with burglary and stealing, he may be acquitted of the burglary and convicted of the stealing, and vice versâ ;3 or on a charge of murder, he may be convicted of manslaughter; for the unlawful killing is the substance of the charge, and the malice is only matter of aggravation. So, if a prisoner be charged with killing with a dagger, it will be sufficient if the evidence prove a killing with a stick; or if he be charged with killing with one kind of poison, and the evidence prove a killing with another. But if the charge be for killing by poison, and the evidence prove death by a weapon or a blow, this will be a fatal variance, for a prisoner cannot be expected to be prepared with evidence to refute a charge so totally distinct from that which is laid in the indictment.5 So, where A. is charged with giving a mortal blow to B., and C. being present, aiding and abetting, the indict
1 Rosc. N. P. 69, 1 Sm. L. C. 328.
2 R. v. Hunt, 2 Camp. 583.
3 2 Hale P. C. 302.
▲ Mackalley's case, 9 Rep. 676. * 5 1 Phill. 563.
ment will warrant a conviction, although the evidence prove B. to have given the blow, and A. and C. to have been present aiding and abetting, for all are principals, and the blow is the blow of them all. But if two are charged as principals, and one appear to be only an accessary, he must be acquitted, for the legal offences in this case are different.1
If an averment is essentially descriptive of the substantial charge, it must be proved. Thus, on an indictment for stealing live turkeys, a prisoner cannot be convicted of stealing dead turkeys.2 The extensive powers of amendment which are now vested in criminal courts by the 14 & 15 Vict. c. 100, render it unnecessary to pursue this subject farther.3
11 Phill. 564.
2 R. v. Edwards. R. & R. 497.
3 See next chapter.
ON VARIANCES AND AMENDMENTS IN CIVIL AND CRIMINAL PROCEEDINGS.
WHEN there appears to be a material discrepancy between the pleadings on the record and the evidence by which they are supported, the rule which requires the substance of the issue to be proved has been violated, and the party on whom the burden of proof lies must either submit to a nonsuit or an adverse verdict. In this case there is said to be a variance between the matter alleged, and the matter proved; and at common law, whenever the matter so alleged was not proved and could not be struck out, or passed over as surplusage, the consequences were those which have just been stated. This rule still remains the same; and as it was originally established to check the carelessness and laxity of pleaders, to save the time of the courts, and to prevent parties who came prepared with evidence to meet one kind of issue from being prejudiced by being suddenly called on to meet a different issue, so the rule still holds that a material variance between the issue and the evidence will be fatal to the party who is responsible for the proof of the issue. But as the operation of this rule was found to work great hardship in its original shape, even when qualified by the principles of surplusage, several statutes have been passed within the last thirty years by which, at length, almost unlimited powers of amending records are given to judges whenever they are of opinion that the justice of the case requires such intervention.
The first of these acts (9 Geo. 4, c. 15), commonly called Lord Tenterden's Act, after reciting that—
"Great expense is often incurred, and delay or failure of justice takes place, on trials, by reason of variances between writings produced in evidence, and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case; and such record cannot now in any case be amended at the trial;" for remedy thereof enacts: "that it shall and may be lawful for every Court of Record, holding plea in civil actions, any judge sitting at Nisi Prius, and any Court of Oyer and Terminer, and general Gaol Delivery in England, Wales, the town of Berwick-upon-Tweed, and Ireland, if such court or judge shall see fit so to do, to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor, where any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending; to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) as such judge or court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued shall be amended accordingly."
This act, it will be observed, gave judges a discretionary power of amending a record at trial only where there was a variance between the record and written or printed evidence adduced in evidence. It was followed by the 3 & 4 Will. 4, c. 42, which, after referring in the preamble to the previous act, extends the privilege of amending in civil cases by enacting that
"It shall be lawful for any Court of Record, holding plea in civil actions, and any judge sitting at Nisi
Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document on which any trial may be pending before any such court or judge, in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record, writ, or document on which the trial is proceeding, of any contract, custom, prescription, name, or other matter in any particular or particulars in the judgment of such court or judge not material to the merits, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution or defence; to be forthwith amended by some officer of the court, or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable; and in case such variance shall be in some particular or particulars in the judgment of such court or judge not material to the merits of the case, but such as the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party, and withdrawing the record, or postponing the trial as aforesaid, as such court or judge shall think reasonable; and after any such amendment the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, or by virtue of such writ as aforesaid, the order for the amendment shall be indorsed on the postea or the writ, as the case may be, and returned together with the record or writ; and thereupon such papers, rolls, or other records of the