Transposition of names. Idem sonans. the prisoner had said she should like it to be called 'Mary Ann,' and had called it 'her Mary Ann' at one time, and 'Little Mary,' at another; the father was a baptist, and the child was a bastard, and twelve days old; and, upon a case reserved, it was held that the child had not gained a name by reputation, and therefore the indictment was right. (u) Where an indictment for larceny laid the goods stolen to be the property of Victory Baroness Turkheim, and the prosecutrix proved that Baroness Turkheim was her title only, and no part of her proper name, but that she was not only reputed to possess that title, but did actually possess it in right of an estate inherited from her father, and that she had constantly and uniformly acted in and been known by that appellation, but that her name without her title was Selina Victoria; the judges held the description sufficient. (v) So where an information for libel described the prosecutor as His Serene Highness Charles Frederick Augustus William Duke of Brunswick and Luneburg,' but his proper name was Charles Frederick William Augustus D'Este, and he had been formerly reigning Duke of Brunswick and Luneburg, and was still commonly called by that title, but he had in fact ceased to be reigning duke, the Court of Queen's Bench held the description sufficient, as it was that by which he was well known. (w) A transposition of the order in which names are borne causes a variance. Thus it is a variance to describe Henry Jules Steiner as Jules Henry Steiner. (x) But if the name proved be idem sonans with that in the indictment, and different in spelling only, the variance will be immaterial. Thus Segrave for Seagrave is no variance, (y) nor is Benedetto for Beniditto, (2) nor is McNicole for McNicoll. (a) So on an indictment for committing an offence on one John Whyneard it appeared that his name was spelt Winyard, but it was pronounced Winnyard; and the judges, on a case reserved, held that the prisoner had been rightly convicted. (b) But an indictment charging the prisoner with having personated Peter M'Cann' is not supported by evidence that he personated 'Peter M'Carn.' (c) So it has been decided that Shakespeare' cannot be considered idem sonans with 'Shakepear.' (d) Whether two names sound alike is a question for the jury, and not for the court. (e) (u) Rex v. Smith, R. & M. C. C. R. (w) Reg. v. Gregory, 8 Q. B. 508. Rex v. Sulls, 2 Leach, 861, was considered by the court as decisive on the point. This report omits the name Augustus among the proper names, but the marginal note shows this was a mere mistake, and the names are all given in 2 Sess. C. 229. (x) Reg. v. James, 2 Cox, C. C. 227. Pollock, C. B. (y) Williams v. Ogle, 2 Stra. 889. (2) Abitbol v. Beniditto, 2 Taunt. 401. Reg. v. Withers, 4 Cox, C. C. 17. (a) Reg. v. Wilson, 1 Den. C. C. 284. (b) Rex v. Foster, R. & R. 412. (c) Rex v. Tannet, R. & R. 351. (d) Rex v. Shakespeare, 10 East, 83. So Tarbart for Tabart is a fatal variance in a bail piece. Bingham v. Dickie, 5 Taunt. 14. (e) Reg. v. Davis, 2 Den. C. C. 231. Upon an indictment for robbing Thomas Bent, it was proved by Evidence of a witness that he knew Lieutenant Bent, and saw him sign his name. name twice-once to the charge of the robbery, and once to the deposition in support of the charge, and from those signatures he knew his name to be Thomas Bent; but, except so far as he knew the fact from having seen Lieutenant Bent sign his name on those occasions, he knew nothing about his Christian name. So much only of the complaint and deposition as showed that they had been signed by Lieutenant Bent in the presence of the witness was then read; and, upon a case reserved, it was held that, although the evidence was open to observation to the jury, yet that there was no doubt that it was admissible as evidence of the Christian name of Lieutenant Bent. (f) So where an information for libel alleged that a certain person had murdered E. Grimwood, and the coroner proved that on the inquest on a female she was called by the witnesses E. Grimwood, and he produced an inquisition on paper purporting to be taken on the body of E. Grimwood, it was held that this was evidence that the deceased went by that name. (g) As to amending the indictment at the trial to make it accord Amending inwith the evidence, see vol. 1, p. 52. dictment at local. On the trial of indictments for offences which are not local in their nature, generally speaking, it will be sufficient to show that laid, where the the offence was committed in some place within the county or other offence is not division; and a mistake of the place in which an offence is laid will not be material upon the evidence on the plea of not guilty, if the fact be proved at some other place in the same county. (h) Although the offence must be proved to have been committed in the county where the prisoner is tried, yet, after such proof, the acts of the prisoner in any other county, tending to establish the charge against him, are properly admissible in evidence. (i) And it is no objection in the case of a transitory felony on the Nor is it any plea of not guilty that there is no such place or parish in the defence on not county as that in which the offence is stated to have been com- there is no mitted. (j) such parish. Since the 14 & 15 Vict. c. 100, s. 23, it is not necessary to state any venue in the body of an indictment, unless a local description be required. (k) guilty that To the above rule, as to the parish and place being immaterial, Exceptions as there are some exceptions; as, if the statute upon which the in- to proof of dictment is framed give the penalty to the poor of the parish in place laid. which the offence was committed, the offence must be proved to have been committed in the parish laid in the indictment. (1) But if the offence be in its nature local, and there be no such Where the In this case the indictment laid stolen property in Darius, C., and he said that his name was Trius, and the sessions held that the names were idem sonantia, as Darius (as pronounced in the Dorset dialect, D'rius) and Trius sounded alike; and it was held that it was a question of fact for the jury, and not of law for the court; and the judges could not affirm as matter of law that the two names sounded alike. (J) Reg. v. Toole, D. & B. 194. (g) Reg. v. Gregory, 8 Q. B. 508. (j) Rex v. Woodward, MS. Bayley, J. P. 24. (2) Archb. Cr. Pl. 43. Glossop, 4 B. & A. 616. offence is local place as that laid in the indictment, the prisoner must be acquitted the parish of such local offence; if, however, the indictment contain a charge must be proved as laid in the of a transitory offence, as larceny, the prisoner may be convicted indictment. of such transitory offence, although he is acquitted of the local offence. (m) So the offence of stealing in the dwelling-house to the value of five pounds is local, and, therefore, if the house be stated to be situate in a parish and county, it must be proved that the whole of such parish is in such county, and if it be not so proved the prisoner cannot be convicted of stealing in the dwelling-house to the value of five pounds, but he may be of the simple larceny. (n) Evidence that the name is So on an indictment against a parish for not repairing a highway, on their common law liability to repair, the part of the road out of repair must be proved to be within the parish. (0) So it has been held that where an injury is partly local and partly transitory, and a precise local description is given, a variance in proof of the place is fatal to the whole, for the whole being one entire fact, the local description becomes descriptive of the transitory injury. (p) Proof that the place or parish is usually and commonly known by the description used is sufficient. (q) And although there usually known be two parishes of the general name, the general description will be sufficient (2) suffices. Amendment. Proof of time. But now, whenever any variance occurs between any local description and the evidence, the court may amend the record under the 14 & 15 Vict. c. 100, s. 1. (8) In criminal prosecutions it is unnecessary to prove the time of committing the offence precisely as laid, unless that particular time is material; and the facts may be proved to have occurred on any day previous to the finding of the bill by the grand jury. (t) And now, by the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient for omitting to state the time at which the offence was com (m) Reg. v. Brookes, C. & M. 543. (p) 1 Stark. Ev. 466, citing Rex v. two (r) 1 Stark. Ev. 469, citing Doe d. James v. Harris, 5 M. & S. 326. Taylor v. Willans, 3 Bing. R. 449. Where an indictment stated that a highway alleged to be out of repair led to the parish of Langwm, in the county of Monmouth, and it appeared that there were parishes in the county, Langwm Isha and Langwm Ucha, and that the highway led to the former; Bosanquet, J., held the description sufficient. Rex v. Lantrissent, Monmouth Sum. Ass. 1832. MSS. C. S. G. mitted in any case where time is not of the essence of the offence, nor for stating the time imperfectly,' (u) and therefore it seems clear that the particular time need only be proved where time is of the essence of the offence. (v) It is immaterial, in general, whether the value ascribed to Proof of value. property in the indictment be proved or not. By the 14 & 15 Vict. c. 100, s. 24, no indictment is insufficient for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value, or price, or the amount of damage, injury, or spoil is not of the essence of the offence;' (w) and, therefore, it seems clear that the value, price, or amount need only be proved where it is of the essence of the offence. As to the old rule, that the want of a videlicet would in some Videlicet. cases make an averment material that would not otherwise be so ; see 2 Saund. 291 c. in note (1) to Dakin's case. As a rule, the want of a videlicet will never do harm where, from the nature of the case, the precise sum, date, magnitude, or extent is immaterial. (x) Where in an action for a libel contained in a pamphlet, a witness Identity. proved that the defendant had given her a pamphlet, and, on a copy being put in her hand, she said, 'This is my handwriting. I believe this to be the pamphlet; it was like it and in this form. I read different portions of it, and lent it to several persons; it was returned to me, and I then wrote this upon it. The defendant has given me different tracts at different times. I cannot swear that this is the same pamphlet he gave me. It is an exact copy, if it is not the same. It is the one I wrote upon. I cannot say I got back the same copy I lent. I only say it is exactly like it. If that is not the copy the defendant gave me, I do not know what has become of it; it was held that there was some evidence to go to the jury that the copy was the same as the defendant had given to the witness. (y) A question frequently arises in cases where the prisoner pleads Identity of that he has been previously acquitted, whether the acquittal has offences. been of the same offence for which he is indicted. Thus where the prisoners, having been acquitted of a rape on Mary Lee, pleaded that acquittal to another indictment for a rape on Mary Lee at the (u) Nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened. See the section, vol. 1, p. 35. (v) And a case might occur where time was of the essence of the offence, and yet it might not be essential to prove the precise time; as, for instance, if a statute made the doing of an act in certain months of the year an offence, it would suffice to prove that the act was done between such a day and such another day in those months, though the particular day could not be proved. See Rex v. Chandler, 1 Ld. Raym. 581, and Reg. v. Simpson, 10 Mod. R. 248, in note (y), ante, p. 96. (w) See the section, vol. 1, p. 35. Rex v. Forsyth, Russ. & Ry. C. C. R. 274. (x) 1 Stark. Ev. 454. Rex v. Gillham, 6 T. R. 265. 1 Phill, Ev. 213 n., 7th ed. (y) Fryer v. Gathercole, 4 Exch. R. 262. Alderson, B., said, 'If I give a shilling to a person to take up stairs and to put away, and he hands me one back as the same, it would be a question for the jury to say whether it is the same, and there is nothing unreasonable if they find that it is.' Alderson, B., also said, 'Suppose I pass my hand across my eyes for an instant, so as to lose sight of the coin for a moment, cannot I prove the identity?' Pollock, C. B., treated the question as one of degree. The evidence would be weaker or stronger in proportion as the numbers of the work were more or less, and the probability of the copy being the same would be greater or less according as there had been more or less lendings of it. same time and place as was alleged in the other indictment, and issue was taken on the identity of the rapes charged in the two indictments, the prisoners' counsel only put in the record of the previous acquittal, and the commitment of the magistrates for a rape on Mary Lee; and Bolland, B., told the jury that it did not appear to him that there was any evidence of the identity of the rapes charged in the two indictments. (2) (2) Rex v. Parry, 7 C. & P. 836, S. C. Rex v. Lea, 2 M. C. C. R. 9. The jury, however, found a verdict for the prisoners, and it was held that this verdict could not be disturbed. Bolland, B., was strongly of opinion that the commitment was not admissible. In Reg. v. Martin, 8 A. & E. 481, Lord Denman, C. J., asked, 'Have you any authority for saying that identity is shown prima facie by collation of the indictments? A defendant may have stolen the goods of the same party twenty times; and on Rex v. Parry being cited, Lord Denman, C. J., said, The point as to the sufficiency of the proof was not decided by the fourteen judges.' But there is no doubt that there was no evidence whatever of identity in that case. See vol. 1, p. 84. |