give notice to the prisoner to produce the writing at the assize, so that it may be brought before the grand jury. Such notice, however, it would appear from the cases in this country, is not considered necessary wherever the indictment in itself is a notice.ƒ Thus, on a trial of an indictment for stealing a bank bill, where the bill is in the defendant's possession, it is not necessary to account for the non-production, the fact of the indictment being found being sufficient notice to the defendant to produce. g So though an indictment for passing counterfeit money purport to set forth the counterfeit note according to its tenor, and contain no averment of its loss or destruction, the production of the note may be dispensed with, upon proof that the same has been mutilated and destroyed by the defendant, and other evidence of its contents may be admitted. h So, as an accomplice is presumed to destroy letters implicating him in guilt, it is not necessary, it has been said, to prove diligent search for such letters, in order, on general proof of their loss, to give parol evidence of their contents. h1 Order to produce. When public justice requires, the court may make, before the trial, an order on the prosecution to produce papers for the defendant's inspection. h2 Evidence of loss. The very best possible evidence of loss must be received to permit a document alleged to be forged to be proved by parol. h3 v. Potts, Halsted, 26; Pendleton v. Com. 4 Leigh, 694; U. S. v. Britton, 2 Mason, 468; Bucher v. Jarrett, 3 Bos. & Pull. 145; Howe v. Hall, 14 East, 275; Thompson v. State, 30 Ala. 28. Service of notice to produce on an attorney who had served a notice on behalf of the prisoner, as to an application to bail him upon the charge, is sufficient. R. v. Boucher, 1 F. & F. 486 - Martin. An indictment alTeged that the prisoner, being in the employ of the post-office, stole a postletter, to wit, a post-letter directed and addressed as follows, that is to say, (setting out the address), which contained property. At the trial, a witness having deposed that he employed a man to post a letter containing the property in question; it was held that he might be asked how that letter was addressed, although no notice to produce the letter had been given. R. v. Clube, 3 Jur. N. S. 698- Pollock. See ante, § 311; post, § 657. f People v. Kingsley, 6 Cowen, 522; People v. Badgeley, 16 Wend. 53; State v. Potts, 4 Halsted, 26; Pendleton v. Com. 4 Leigh, 694; State v. Mayberry, 48 Maine, 218; R. v. Downham, 1 F. & F. 386. g People v. Holbrook, 13 Johns. 90; h1 U. S. v. Doebler, 1 Bald. 519. Negligence by prosecutor in leading to loss, does not ordinarily exclude secondary evidence. h4 § 609. Records. In respect to records great care is necessary, as any variance will be fatal. i The rule in criminal cases, in this respect, is the same as in civil actions. Thus, in an action for a malicious prosecution, the declaration having stated that the indictment, afterwards, to wit, on the 25th of February, 1791, came on to be tried, and by the record, when produced, the trial appeared to have been on a different day, the plaintiff was nonsuited, although the day was laid under a videlicet.j So where, in an indictment for perjury, a variance appeared between the day on which the false oath was averred to have been taken and the day as proved by the record, the variance was held fatal. k So, an allegation that the plaintiff was acquitted by a jury in the court of our lord the king, before the king himself at Westminster, before the chief justice, and discharged thereupon by the court, was holden not to be proved by a record stating the trial to have been at nisi prius, and the plaintiff to have been discharged by the court in banc. 7 h4 State v. Taunt, 16 Minnes. 109. i See ante, § 308; post, § 1474-5, 2263. j Pope v. Foster, 4 T. R. 590; Woodford v. Ashley, 11 East, 508; 2 Saund. 291, b. k U. S. v. Bowman, 4 Wash. C. C. R. 328; U. S. v. M'Neal, 1 Gallison, 387. I Woodford v. Ashley, 2 Camp. 193; 11 East, 508. The subject of the pleading of written instruments and records has been already considered under the following heads: 1. Where the instrument, as in for- (a.) In such case, literal exactness (c.) What variance is fatal, § 309. (f) When any part may be omitted, § 312. (9.) Where the instrument is in a 2. Where the instrument, as in lar- 3. What general legal designation V. GOODS, NUMBERS, AND SUMS. m § 610. In an indictment for an offence relating to personal property the evidence must correspond with the description of the goods in the indictment; as, in larceny, an indictment for stealing a pair of shoes, cannot be supported by evidence of a larceny of a pair of boots.n And this will be the case even when the goods are described in the indictment with unnecessary particularity, unless the unnecessary part of the description can be rejected as surplusage.o Variance as to particular articles. "Thirty yards of cloth " and "one coat," sufficiently describes the nature of the goods, and is sustained by proof that they consist of "one piece of cassimere" and "one blue pilot cloth coat." o1 An indictment for an assault with a "basket knife," with intent to kill, is supported by evidence of a "basket iron." p 66 Fifty pounds of flour of the value of six cents," is sustained by proof of a bag of flour which cost five dollars, although there was no proof of its weight. pl § 611. In another case, defendant was indicted for stealing "a shovel plough," but it was proved that he only stole the iron part of what is called a shovel plough; and, although the judge below was of opinion that the evidence did not support the indictment, the jury, by his recommendation, found the prisoner guilty, that the point might be decided by the court of appeals. That court granted a new trial, on the ground, that the circuit judge should have left it to the jury to determine whether the thing stolen was, according to common understanding, a shovel plough, as charged in the indictment. q (a.) "Purporting to be," § 342. (b.)" Receipt," § 343. (c.) "Bill of exchange," § 344. (d.) "Promissory note," § 345. (e.) "Bank note," § 346. (f) "Money," § 347. (g.) "Goods and chattels," § 348. (h.) Warrant, order, or request for the payment of money, § 349. m See ante, § 254-8. n Archb. C. P. 66; People v. Jackson, 8 Barbour S. C. 637; Com. v. Wentz, 1 Ashmead, 269; Com. v. It has been ruled that proof of stealing a ploughshare, is not sustained by evidence of stealing a plough.ql Variance as to coin. Where a person was indicted for uttering counterfeit coin, intended to resemble and pass for a "groat," and all the witnesses, except the inspector of coin at the mint, called it a fourpenny piece, but the inspector called it a groat, and said he believed that it had had that name from the earliest period, and added, that the original groat of Edw. III.'s reign was larger and heavier than the coin in question; and that, in the queen's proclamation these coins were called both groats and fourpenny pieces, but the proclamation was not produced, and the inscription on the coin itself was "fourpence; " it was held, that if the jury, from their own knowledge of the English language, without considering any evidence at all, were of opinion that a groat and fourpenny piece were the same, the prisoner was rightly indicted, and might be convicted. r Coins or notes. An indictment charging a stealing of a specific thing or things, is not supported, except by proof of some one or more of the specific things so charged. Therefore an indictment charging a stealing of seventy pieces of the current coin of the realm called sovereigns, of the value of 70l., 140 pieces, &c., called half-sovereigns, &c., 500 pieces, &c., called crowns, &c., is not supported by proof of a stealing of a sum of money consisting of some or other of the coins mentioned in the indictment, without proof of some one or more of the specific coins charged to have been stolen. s Thus, When the indictment charges the stealing of certain particular coin, there can be no conviction for stealing other coin. t where the defendant obtained a sovereign from the prosecutor, in payment of a supposed debt of a shilling, and the prosecutor never intended to part with the sovereign until she received the nineteen shillings change; it was held that an indictment charging the larceny of nineteen shillings was bad, as the case, if made out, was that of larceny of a sovereign. t1 q1 State v. Cockfield, 15 Rich. S. C. 316. r R. v. Connell, 1 C. & K. 190. s R. v. Bond, 1 Den. C. C. 517. Ante, § 354. t Archbold's C. P. (ed. 1862) 190; R. v. Jones, 1 Cox C. C. 105; R. v. West, Dears. & B. 109; 7 Cox C. C. 183. See, on general principles of construction, R. v. Amos, 2 Den. C. C. 65; 1 Eng. L. & E. 592; T. & M. 465. t1 R. v. Bird (C. C. R.), Feb. 1873; Instruments of writing. For a discussion of the law of vari ance as to instruments of writing, the reader is referred to the general discussion of this topic in a prior chapter. u Animals. Under statutes making it a felony to steal any ox, cow, or heifer, where the indictment charges the defendant with stealing a cow, proof of its being a heifer will not suffice; for the statute having mentioned both cow and heifer proved that the words were not considered by the legislature as synonymous. v An indictment for stealing a sheep is supported by proof of the stealing of any sex or variety of that animal, for the term is nomen generalissimum. w On an indictment for stealing a horse, proof that it was a gelding is a fatal variance, the statute making a distinction between horses and geldings. x In Delaware, it is said that evidence of stealing a lamb, will support an indictment for stealing a sheep. y And in South Carolina, horses was construed to contain mares; z though in the same state it was somewhat inconsistently ruled that under the statute against hog stealing, an indictment for stealing a pig could not be sustained. a § 612. Number. - A variance in the number of the goods, if the number stated does not constitute the essence of the offence, is immaterial. The proof of any one of several articles duly 12 Cox C. C. 257; 27 L. T. N. S. 800; u Ante, § 305, and analysis there given. See People v. Wiley, 3 Hill, 194. v R. v. Cooke, 2 East P. C. 617; Leach, 123; but see Parker v. State, 39 Ala. 365. See ante, § 377. VOL. I.-33 |