§ 303. (d.) To enable the defendant to prepare for his defence e in particular cases, and to plead in all, ƒ or, if he prefer it, to submit to the court by demurrer whether the facts alleged (supposing them to be true) so support the conclusion in law, as to render it necessary for him to make any answer to the charge. g § 304. (e.) Finally and chiefly, to enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment; and also, in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender. h As to what constitutes surplusage, will be considered fully hereafter. i (e.) Lost, destroyed, obscene, or sup pressed writings, § 311. (f.) When any part may be omitted, § 312. (g.) Where the instrument is in a for- 2. WHERE THE INSTRUMENT, AS IN LAR- e R. v. Hollond, 5 T. R. 623; Fost. 194; Com. v. McAtee, 8 Dana's Ky. R. 29. See to same effect, People v. Taylor, 3 Denio, 91. "That certainty and precision in an indictment is required, which will enable the defendant to judge whether the facts and circumstances stated constitute an indictable offence, that he may know the nature of the offence against which he is to prepare his defence; that he may (f) New Jersey, § 331. (m.) Tennessee, § 339. (n.) Ohio, § 340. § 305. 1. Where the Instrument, as in Forgery and Libel, must be set out in full. [In Massachusetts, by Gen. Stat. 1864, ch. 250, § 1, variance in writings or print is immaterial, if the identity of the instrument is manifest.] [Virginia. See Crimes Act, 1866, chap. ccvii. § 7.] § 306. (a.) In what case literal exactness is necessary. Where written instruments enter into the gist of the offence, as in forgery, passing counterfeit money, selling lottery tickets, sending threatening letters, libel, &c., they should be set out in words and figures. Thus, the omission of a word in an indictment for forgery is fatal. k In such cases, however, it is not necessary to insert the vignettes, devices, letters, or figures in the margin, as they make no part of the instrument. But it has been held fatal to omit the name of the state in the upper margin of a copy of a bank note, when such name is not repeated on the body.m § 307. (b.) "Tenor," "Purport," and "Substance.” — When it is necessary to set forth an instrument, or writing, remarks Mr. Chitty, n it may be preceded by the words, "to the tenor following," or "in these words," or "as follows," or "in the words and figures following," for though the setting forth the instrument by the tenor which imports an accurate copy o has been considered to be most technical, yet it has been holden that "as follows" is equivalent to the words "according to the tenor j State v. Stephens, Wright's Ohio R. 73; R. v. Mason, 2 East, 238; 2 East P. C. 976; R. v. Powell, 1 Leach, 77; R. v. Hart, 1 Leach, 145; Com. v. Gillespie, 7 Serg. & Rawle, 469; Com. v. Stow, 1 Mass. 54; Com. v. Bailey, 1 Mass. 62; State v. Farrand, 3 Halsted, 333; State v. Gustin, 2 Southard R. 749; State v. Twitty, 2 Hawks, 248; Com. v. Sweney, 10 S. & R. 173; Com. v. Wright, 1 Cush. 46; Com. v. Tarbox, Ibid. 66. Post, § 606-8, 1468, &c., 2601, &c. k State v. Street, Tay. 158; and see State v. Bradley, 1 Hay. 403; State v. Coffey, N. C. Term R. 272; U. S. v. Hinman, 1 Baldwin, 292; U. S. v. Britton, 2 Mason, 462. Post, § 1469. People v. Franklin, 3 Johnson's C. 299; Com. v. Searle, 2 Binney, 332; State v. Carr, 5 N. Hamp. 367; Com. v. Bailey, 1 Mass. 62; Com. v. Stephens, Ibid. 203; Com. v. Taylor, 5 Cush. 605; Buckland v. Com. 8 Leigh, 732; Griffin v. State, 14 Ohio St. R. 55. Post, § 1469. m Com. v. Wilson, 2 Gray, 70. n 1 Ch. C. L. 234; 2 Leach, 661; 6 East, 418-426. Post, § 1474-5. o 2 Leach, 660, 661; 3 Salk. 225; Holt, 347–350, 425; 11 Mod. 96, 97; Douglass, 193, 194. Post, § 1474-5. following," or "in the words and figures following," and that if under such an allegation the prosecutor fails in proving the instrument verbatim, as laid, the variance will be fatal; p and where the indictment, by these or similar averments, fails to claim to set out a copy of the instrument in words and figures, it will be invalid. q Purport, it is said, means the substance of an instrument as it appears on the face of it to every eye that reads it, and is insufficient when literal exactness is required; tenor, means an exact copy of it. But if the instrument does not "purport" to be what the indictment avers-i. e., if its meaning is not accurately stated the variance is fatal. s The words “in manner and form following, that is to say," do not profess to give more than the substance, and are usual in an indictment for perjury; t but the word "aforesaid" binds the party to an exact recital. u "According to the purport and effect, and in substance," are bad. v And so is "substance and effect." w § 308. The attaching of one of the original printed papers to the indictment, in place of inserting a copy, is not sufficient indication that the paper is set out in the very words. wl In forgery, as will be seen hereafter, the indictment may run, that the prisoner forged a paper writing according to the tenor following, &c. x An exact copy y of the instrument, in words and figures, z must then be set forth, to enable the court to see whether the false making of it is in law considered as for p 1 Leach, 78; 2 Leach, 660, 661; 2 East P. C. 976; 2 Bla. Rep. 787. Post, § 1474-5. q 2 Leach, 597, 660, 661; Dana v. State, 2 Ohio St. Rep. 91; Com. v. Wright, 1 Cush. 66; State v. Bonney, 34 Me. 383. Post, 1474-5, 1482, 2589. r 2 Leach, 661; Com. v. Wright, 1 Cush. 46; State v. Bonney, 34 Maine, 383; State v. Witham, 47 Maine, 165. s Dougl. 300; State v. Molier, 1 Devereux, 263; State v. Carter, Conf. N. C. R. 210; State v. Wimberly, 3 McCord, 190. t 1 Leach, 192; Dougl. 193, 194. u Ibid.; Doug. 97. v Com. v. Wright, 1 Cush. 46; State v. Brownlow, 7 Hump. 63; Dana v. State, 2 Ohio St. R. 91. w Com. v. Sweney, 10 Serg. & R. 173. wl Com. v. Tarbox, 1 Cush. 66 Post, § 1473. x 2 Leach, 660, 661. Post, § 1474. y 2 Leach, 624; 2 East P. C. 928, 977. z 1 Leach, 78, 145; 2 East P. C. 976. gery; a and the same rule applies to indictments for threatening letters. b -- § 309. (c.) What variance is fatal. A mere variance of a letter will not be fatal, even when the tenor is set out, provided the meaning be not altered by changing the word misspelt into another of a different meaning; e thus, in an indictment for forging a bill of exchange, the tenor was "value received," and the bill, as produced in evidence, was "value reiceved;" the question being reserved, it was held that the variance was not material, because it did not change one word into another, so as to alter the meaning. d On the same principle, where, in an indictment for perjury, it was assigned for perjury that the defendant swore he "understood and believed," instead of "understood," the mistake was held to be immaterial. e So "promise," for "promised" was held not a fatal variance.f The subject of clerical errors in the setting forth of writings, and that of variance in the setting out of records, are considered under future heads. g. Where an indictment alleged that a forged certificate was signed by Bowling Starke, but the instrument was signed B. Starke, and the signer's true name was Bolling Starke, the variance was held fatal. h In England, however, where the name of John McNicoll, signed to a forged instrument, was in the setting out of the forged instrument in the indictment written John McNicole: It was held no variance. h1 The subject of variance between the indictment and the evidence in this respect is more fully considered under a future head. i Where the setting out of the instrument in an indictment a 2 Leach, 624, 657, 661; 2 East P. C. 975. b 2 East P. C. 976; 1 Marsh. 522; 6 East, 418. c R. v. Drake, Salk. 660; U. S. v. Hinman, 1 Baldwin, 292; State v. Bean, 19 Vt. 530; State v. Weaver, 13 Iredell, 491. Post, § 606, 1469. d 1 Leach, 145. 262 e 1 Leach, 133; Dougl. 193, 194. f Com. v. Parmenter, 5 Pick. 279. g Post, § 405-6-7-9, 606, 1469. h Com. v. Kearns, 1 Virg. Cases, 109; State v. Waters, Const. R. 669. h1 R. v. Wilson, 2 C. & K. 527; 1 Den. C. C. 284; 2 Cox C. C. 426. But see fully, post, § 606. i Post, § 606-7-8, 1469. can give no information in the court, it is unnecessary to set it out.j § 310. (d.) Quotation marks. Quotation marks by themselves are not sufficient. k § 311. (e.) Lost, destroyed, obscene, or suppressed writings.— Where the instrument on which the indictment rests is in the defendant's possession, or is lost or destroyed, it is sufficient to aver such special facts as an excuse for the non-setting out of the instrument, and then to proceed, either by stating its substance, or by describing it as an instrument which "the said inquest cannot set forth by reason," &c., of its loss, destruction, or detention, as the case may be, m giving, however, the purport of the instrument as near as may be. m1 It was at first doubted whether any proceedings would lie when the instrument on which the indictment was based was in the hands of the defendant; it being clear that the courts would not compel him to surrender it; and such an objection was raised in King v. Watson, n where an information was asked against a corporation for a libel, the libellous writing being in the hands of the defendant, and not within the control of the prosecution. The case did not proceed to trial, but it was strongly intimated by Buller, J., that if it should, and the defendant refused to deliver the libellous paper, after notice, it would be enough for the prosecution to prove the substance. And it has since been held, in prosecutions for forgery, that if the prosecutor, a reasonable time before the commencement of the assizes, gives the prisoner notice to produce the alleged forged writing, he is entitled, on non-production, to give secondary evidence of its contents. o In Maine, Massachusetts, Vermont, New York, New Jersey, and Virginia, as well as in the United States courts, it has been laid down that, in such cases, it is proper and necessary for the prosecution to aver specially in the indictment the loss of the instrument in question, or a possession and non-production by the defendant. p Thus, where the j R. v. Coulson, 1 Eng. L. & E. 550; S. C. 1 Temple & M. C. C. 332; 4 Cox C. C. 227. k Com. v. Wright, 1 Cush. 66. m Post, § 608. See Com. v. Sawtelle, 11 Cush. 142; People v. Bogart, 36 Cal. 245. Post, § 363. m1 Wallace v. People, 27 Illinois, 45. Post, § 1468. n 2 T. R. 200. o Rex v. Haworth, 4 Car. & Payne, 254; Rex v. Hunter, 4 Car. & Payne, 128. See post, § 608-9. p State v. Bonney, 34 Maine, 223; |