sions which have been used by the defendant, and which must be set out on the record, any variance affecting the sense will in general be fatal. A variance from the description of the things alleged to have been stolen or forged is in general fatal. (q) (9) As between Lion Rampaut and a Lion Passant, on an indictment for forgery. Lee's case, Leach, 3d Ed. p. 464. 259 CHAP. XV. Of Amendments. BY the express provisions of the statutes of amendment, cases of treason and felony are exempted from their operation; and it has frequently been laid down, that the exception virtually extends to all criminal prosecutions, and that the proceedings in such cases are amendable according to the rules and practice of the common law only (a). With respect to an indictment, since it is found upon the oath of a jury, there would be a manifest impropriety in making any alteration in it (b), which could possibly affect the sense, without their consent. Amendments of this kind have, in some cases, been made by the authority of the court even after verdict, but such instances are rare (c). In the second volume of Bulstrode's reports, Mr. J. Yelverton cites the case of two persons, who had been indicted before him for a capital felony : it appeared, that the indictinent charged them in the singular number; on that account he staid the proceedings, and took the opinion of the judges; eight or nine of (a) Burr. 2527. 6 Mod. 268. 1 Sid. 244. 1 Keb. 252. ↑ Haw. c. 25. s. 97. 1 Salk. 51, 52. But qu. and see P. 253. (b) Per Ld. Mansfield, Burr. 2569. (c) 2 Buls. 35. and see 11 H. 6. f. 2. and f. 14. where a writ of forger of false deeds was amended by inserting imaginavit for imaginatus est. whom (all who were present) clearly held, that the indictment was good and amendable; and he adds, that it was amended accordingly, and that both the defendants were executed (d). Where an indictment appeared to be insufficient, either for its uncertainty, or for want of proper legal words, it was anciently the practice to award process to the grand jury, if the court sate in the same county, to come into court to amend it (e). And it is the common practice at present to amend indictment in matters of form, whilst the grand jury are before the court; for which purpose they formally give their consent, that the court shall amend matters of form altering no matter of substance. And it seems, that a rule may be made upon (ƒ) the coroner, to amend the body of his inquest by his notes in mere matters of form, and before it is filed. But the same objection does not apply to other parts of the record extrinsic of the indictment itself; and it seems, that evident misprisions in mere matters of form, either in the joining of issue or setting out the process, are amendable at common law. In Harris's (g) case, the defendant having been found guilty of a nuisance, the record was removed into the Court of King's Bench by certiorari; and on examination it appeared, that no issue had been joined by the clerk of assize to the plea of not guilty; and though several years had elapsed, and Richard Warer, the clerk of assize, who ought to have entered the similiter, had died in the interval, the court or (d) See Mr. J. Powell's observation upon this case, 6 Mod. 283. (e) 22 Ass. 73. 2 E. 3. 1. B. Ind. 12. 2 Haw. c. 25. s. (f) 2 Haw. c 25. s. 97. came a record (n) and in conformity with this maxim, the courts have frequently refused to amend the caption of an indictment in a term subsequent to that in which it came in and was entered of record (o). But, in the case of the King v. Christopher Atkinson, it was solemnly decided, after a full consideration of all the previous cases, that a caption might be amended af ter the term, and made to correspond with the truth of the case. It appeared, that the defendant had been convicted at a session of oyer and terminer for the county of Middlesex, that the sessions of the peace, and of oyer and terminer for the county, are holden at the same time, and that the clerk of the peace had two printed forms of captions, the one applicable to indictments preferred under the commission of oyer and terminer, the other to those preferred under the commission of the peace, and that a junior clerk, upon the receipt of the certiorari, took by mistake a return of a caption of the peace, and, striking out the word peace, inserted the words oyer and terminer. The consequence was, that the caption was neither applicable to a session of the peace, nor to a session of oyer and terminer. The certiorari was returned in Easter term, 1783; the defendant was found guilty at the sittings after the next Trinity term, and in the Easter term following, the attorney-general moved to amend the return to the certiorari, by the commission, &c. according to the fact, and to amend, the caption by the return. (n) 1 Saund. 249. 2 Haw. c. 25. s. 97. (o) See 2 Hale, 168. Sir W. Jones, 421. 1 Roll. Ab. 196. 1 Sid. 175. 6 Mod. 273. 278. 8 Co. 310. 2 Ld. Ray. 968. 6 in Tutchin's case (), it was holden by Ld. Holt, C. J. and by Powell, J. that the issuing a distringas corpora juratorum tested on the 24th, the venire facias being returnable on the 23d, was a discontinuance, and that such a fault, even in a civil case, would not have been cured by the statute 8 H. 6. c. 12. At common law the court may amend their own misprision, or even their own judgment, or any other part of the record in the same term, for during the term, the record is in the breast of the judges (m).. Where an indictment has been removed into the Court of King's Bench from an inferior court, the general rule seems to have been, that the record might be amended according to the truth, if by the aid of any existing document it could be so amended. Thus the body of an indictment from London may be amended; because, by the city charter the tenor i. e. a copy only can be removed from thence, and the original remains a certain guide for the amendment (2). So it has always been the common course to direct the caption of an indictment to be amended by the clerk of the assizes, so as to make it agree with the original record (0). But with respect to amendments of this nature, a question of considerable difficulty has arisen as to the time of making such an amendment; for, according to the technical distinction, a record cannot be amended in a term subsequent to that in which it be (1) 6 Mod. 269. See Yel. 64. Dyer, 346. 1 Ld. Ray. 1061. 3. Mod. 335. 3 Bl. Comm. 406. Comb. 73. (m) Blackmore's case, 8 Co. 310. (n) 2 Haw. c. 25. s. 97. |