pleaded will sustain a verdict. b At the same time, where a series of special coins are averred, and the jury find the defendant guilty of stealing some of the coins averred, but declaring that they are not able to specify which, the conviction cannot be sustained. c

§ 613. Value. It is unnecessary to prove the value laid in the indictment, unless the precise sum forms the essence of the offence, or is stated as a matter of description. d Thus, in an indictment for extortion, or taking a greater brokerage than is allowed by the act of parliament, it is not necessary to prove the taking of the precise sum laid. e But if the value of the property is essential to constitute an offence, it must be proved to have been sufficient for that purpose. In larceny, the value may be inferred from the general testimony, without precise proof.f Some value must be thus shown. f1

On an indictment charging the larceny of several articles collectively, with only a gross value assigned, no conviction should be had on evidence for stealing only a part. g

b See ante, § 361, 391; post, § 619628; Burn's Justice, 29th ed. by Ch. & Bears, title Evidence.

c R. v. Bond, 4 Cox C. C. 231; 1 Den. C. C. 517.

d Com. v. Morrill, 8 Cush. 571; Com. v. McKenney, 9 Gray, 114; Com. v. Burke, 12 Allen, 182. Ante, § 362; post, § 1837-9.

e R. v. Gilham, 6 T. R. 265; Grimwood v. Baritt, Ibid. 462; Pope v. Foster, 4 T. R. 590.

f Ante, § 362; post, § 1837-9; Com. v. Logan, 3 Brewster, 341; Remsen v. People, 57 Barbour, 324.

each piece thereof being of the denomination and value of fifty cents; one bank bill of the denomination and value of five dollars; six towels of the value of one dollar; twelve handkerchiefs of the value of six dollars." The fractional currency and the bank bill, as well as some of the towels and handkerchiefs, but a less number of each than the number stated in the indictment, were produced in court, identified by a witness, and submitted to and examined by the jury, who were instructed that "if it was proved that the defendant stole the articles exhib

f People v. Griffin, 38 How. (N. ited in court, and if, on the evidence Y.) Pr. 475.

g Hope . Com. 9 Met. 134; see O'Connel v. Com. 7 Met. 460. See ante, § 354-362; post, § 1837-9. In a case in Massachusetts in 1869, this position is sustained by Judge Gray as follows:

The indictment alleged that the defendant stole "sixty pieces of the fractional currency of the United States,

given, or on the inspection of the articles themselves, they found them to be of some value, it would be competent for them to find the defendant guilty;" and a general verdict of guilty of simple larceny was returned.

Upon consideration, the court is unanimously of opinion that this instruction was not sufficiently guarded. By the statutes of the commonwealth,

The general question of the averment of two or more articles in larceny, has been already noticed. g1

In an indictment under the Rev. Sts. c. 126, § 14, it was alleged that the defendant broke and entered "the city hall of the city of Charlestown;" this was held a sufficient averment that the property of the building alleged to be broken and entered is in the city of Charlestown. h

The questions of pleading falling under this head, are elsewhere considered as follows:

1. Indefinite, insensible, and lumping descriptions, § 354, 1753-4.

2. Value, §§ 362, 1837-9. 3. Money or coin, § 363.

VI. NEGATIVE AVERMENTS. ¡

§ 614. Where, in a statute, an exception or proviso qualifies the description of the offence, the general rule is, as has been seen, that the indictment should negative the exception or pro

goods and chattels must be of some value in order to be the subject of simple larceny. Gen. Sts. c. 161, § 18. Com. v. McKenney, 9 Gray, 114. No person, therefore, can be sentenced for stealing anything which is not both alleged in the accusation, and found by the verdict, to be of some value. This indictment does not allege that each of the towels or each of the handkerchiefs was of some value, but only that the six towels together were of some value, and the twelve handkerchiefs together were of some value. It is quite consistent with these allegations that the only towels or handkerchiefs which were deemed by the grand jury to be of any value were those which were not produced at the trial or proved to have been stolen.

The traverse jury, under the instructions given them, may have found the defendant guilty, solely by reason of thinking that the towels and handkerchiefs produced were of some value. To restate the case more particularly,

the indictment and verdict do not exclude the conclusion that the grand jury were of opinion that the fractional currency, the bank bill, and some of the towels and handkerchiefs, were valuable, but that the other towels and handkerchiefs, and the only ones which were proved at the trial to have been stolen, were of no value; and, on the other hand, that the traverse jury were of opinion that the only stolen articles of any value were the towels and handkerchiefs produced in court, which the grand jury, for aught that appears, may have thought to be of no value whatever. As the defendant may, therefore, have been convicted, without being found guilty of stealing anything which the grand jury and the traverse jury concurred in finding to be of any value, she is entitled to a new trial." Com. v. Lavery, 101 Mass. 207-8-9.

g1 Ante, § 391.

h Com. v. Williams, 2 Cushing, 583. i See ante, § 378-80.

viso. In such cases, when the subject of the exception relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the defendant, as matter of defence; but, on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative. k Thus it is incumbent on the defendant, in an indictment for selling liquor by the small, to prove he is licensed. So, informations upon the game laws must negative the defendant's qualifications to kill game; but this negative need not be proved upon the part of the prosecution; on the contrary, the defendant must prove the affirmative of it as matter of defence. m So, informations for selling ale without a license must negative the existence of a license, but the informer need not prove the negative. n And the defendant, in an indictment for trading as a hawker and pedler without a license, must prove that he has a license. o Whether in such case the defendant must make out his defence beyond reasonable doubt, or whether the jury are to take the whole case altogether, and give the benefit of any doubts as to any part of it to the defendant, — in other words, whether in such case the burden of proof shifts, has

j Ibid.

State, 1 McCord, 573; Haskill v. Com.

j1 State v. McGlynn, 34 N. Hamp. 3 B. Mon. 342; State v. Woodward, 34 Maine, 293; Com. v. Boyer, 7 Allen,

422.

k 2 Russ. on Crimes, 769; 1 Green- 306; though see Elkin v. Janson, 13 leaf on Ev. § 79.

7 See on the question of the burden of proof, on issues such as those stated in the text, post, § 708, and also State v. Morrison, 3 Dev. 299; State v. Crowell, 25 Maine, 171; Wheat v. State, 6 Mo. 455; Shearer v. State, 7 Blackf. 99; Com. v. Thurlow, 24 Pick. 374; R. v. Turner, 5 M. & S. 206; Schmidt v. State, 14 Missouri, 137; State v. Whittier, 21 Maine, 341; State v. Churchill, 25 Maine, 306; U. S. v. Hayward, 2 Gallis. 485; Gening v.

Mees. & W. 662; R. v. Stone, 1 East, 639; Com. v. Samuel, 2 Pick. 103; Paley on Convictions, 45; see also an elaborate note on this point in 1 Bennett & Heard Lead. Cas. 347.

m R. v. Turner, 5 M. & Selw. 205. Ante, § 378; post, § 708–9–10–11, &c.

n R. v. Hansom, Paley on Convictions, by Dowling, 45, n. 1; U. S. v. Hayward, 2 Gal. 499; see 1 Hawk. c. 89, s. 17; Apothecaries' Co. v. Bentley, 1 C. & P. 538; R. & M. 159. o R. v. Smith, 3 Burr. 1475.

been much discussed. p The better opinion seems to be that in such cases the burden is on the defendant.

In an action for a penalty for practising as an apothecary without having obtained the requisite certificate, the defendant must prove that he has the certificate. q

Negative in false pretences. As this is part of the prosecution's case, the falsity of the pretences must be proximately made out by the prosecution. q1

§ 615. Office presumed regular. - Wherever any act is required to be done by one, the omission of which would make him guilty of a criminal neglect of duty, the law presumes the affirmative, and throws the burden of proving the negative on the party who insists on it. So, where a party has acted in a public capacity, it will be presumed he was duly appointed; and this, whether the effect of such presumption be to charge himself with some breach of duty, or to charge a third party with some offence towards him, in that particular capacity. Thus, on an indictment for the murder of a constable, in the execution of his duty, it is sufficient that he was known to act as a constable, and his appointment need not be produced. s And on an indictment against a letter carrier for embezzlement, under 2 Wm. 4 c. 4, proof that he acted as a letter carrier will suffice, without producing his appointment. t

VII. DIVISIBLE AVERMENTS. u

§ 616. Only necessary to prove a substantive crime charged. It is sufficient to prove so much of the indictment as shows the defendant to have been guilty of the substantive crime therein stated, though not the full extent charged on him. v Thus, on an indictment charging the defendant with having done, and

p See post, § 708-9-10-11, &c. q Apothecaries' Co. v. Bentley, 1 C. & P. 538; S. C. Ry. & Moody N. P. C. 159.

q1 Post, § 2110.

r Williams v. E. I. Company, 3 East, 192; Evans v. Birch, 3 Camp. 10; R. v. Hawkins, 10 East, 216; R. v. Twyning, 2 B. & Al. 386; 1 Greenl. on Ev. § 80. Post, § 653, 2533.

s R. v. Gordon, 1 Leach, 515; 1

East P. C. 312, S. C. Post, § 653, 2533.

t R. v. Borrett, 6 C. & P. 124.

u See ante, § 381-91; post, § 627.

v R. v. Hunt, 2 Camp. 583; O'Connell v. Reg. 11 C. & Fin. 155; 1 Greenleaf on Ev. § 65; 1 Russ. on Crimes, 790; Larned v. Com. 12 Metc. 240; Murphy v. State, 28 Mississippi, 638. See ante, § 381-91; post, § 627.

caused to be done, a particular act, it suffices to prove either. So where a man was charged with publishing a libel against magistrates, with intent to defame those magistrates, and also with intent to bring the administration of justice into contempt, Bailey, J., held that proof of his having published it with either of these intentions, would support the indictment. w The offence, however, of which the defendant is convicted, must at common law be of the same class with that with which he is charged. x For instance, on an indictment for simple larceny, there cannot be a conviction of receiving stolen goods. y

§ 617. Convictions of minor offence on indictments of major.— Where, as has already been shown, a minor offence is included in a greater, the defendant may be acquitted of the latter, and convicted of the former. z In a misdemeanor for assaulting an officer when in execution of his duty, and thereby obstructing public justice, the defendant may be convicted of the simple assault. a And where the defendant is charged with an assault with a felonious intent, he may be convicted of the bare assault. b On an indictment for killing a sheep, with the intent to steal the whole carcass (now provided against by 7 and 8 Geo. 4. c. 20, § 25), proof of killing, with intent to steal a part, is sufficient to support the charge. c On an indictment for entering and breaking a dwelling-house in the daytime and stealing therein, one may be found guilty of stealing in the dwelling-house in the daytime, or only of stealing. d

§ 618. Several assignments in perjury, false pretences, &c.Where as in cases of perjury, and of subornation of perjury, several distinct assignments of perjury or falsity are laid, the indictment will be sustained if any one be proved, if that, by itself, be sufficient to constitute the offence. e So, if on an in

w R. v. Evans, 3 Stark. 35. Ante, v. Coy, 2 Aiken, 181; Stewart v. State, § 558. 5 Ohio, 241; M'Bride v. State, 2 Eng. (Ark.) 374; see Carpenter v. People, 4 Scam. 197; R. v. Mitchell, 12 Eng. Law & Eq. 588; ante, § 385–560–565; post, § 627, 3183; Gillespie v. State, 9 Ind. 380.

x R. v. Westbeer, 1 Leach, 12; 2 Str. 1133; State v. Shoemaker, 7 Mo. 177. y Ross v. State, 1 Blackf. 391. z See § 383-5, 560-5; post, § 3183. a Dick. Sess. 351; Com. v. Kirby, 2 Cush. 577; Larned v. Com. 12 Metc. 240.

b State v. Kennedy, 7 Blackf. 233; State v. Stedman, 7 Porter, 495; State