§ 929. Amendment.-The rule at common law is that an indictment is not subject to amendment by either prosecuting attorney or court whether the offense be a felony or a misdemeanor, in manner of form or matter of substance.* It may not even be amended with the consent of the defendant. The reason is that the indictment is found upon the oath of the grand jury and should only be amended by them.® However, informations, which were framed originally by the prosecuting attorney, may, therefore, by him be amended." The caption may be amended as it is no part of the indictment. Statutes in England and in most of our states allow in the discretion of the court amendments in the matter of form. The courts do not agree as to what is matter of form and what is matter of substance. The name of the defendant, being a mere matter of form, may be amended.16 Some courts allow the indictment to be amended as to the name of third persons; for instance the name of the owner of the premises in an indictment for arson or burglary,1 the name of the owner of the goods in an indictment for

4 Commonwealth v. Phillipsburg,

10 Mass. 78; Commonwealth v. Mahar, 16 Pick. (Mass.) 120; 2 Hawk. ch. 25, § 98.

5 Commonwealth v. Adams, 92 Ky. 134, 17 S. W. 276; People v. Campbell, 4 Park. Cr. (N. Y.) 386.

6 People v. Van Every, 222 N. Y. 74, 118 N. E. 244; State v. Kiefer (Iowa), 163 N. W. 698; State v. Davis (R. I.), 97 Atl. 818, 98 Atl. 57; 2 Hawk. P. C. ch. 25, §98; 2 Bish. New Crim. Proc., § 709.

7 State v. Rowley, 12 Conn. 101; State v. Terrebonne, 45 La. Ann. 25, 12 So. 315; State v. Fleeman, 102 Kans. 670, 171 Pac. 618; State v. Hay (Utah), 172 Pac. 721; People

v. Thompson, 203 Ill. App. 296; State v. Sieff, 54 Mont. 165, 168 Pac. 524; State v. McCullough, 101 Kans. 52, 165 Pac. 644.

8 State v. Paine, 1 Ind. 163, Smith 73; State v. McCarty, 2 Chand. (Wis.) 199; 54 Am. Dec. 150; State v. Pelser (Iowa), 163 N. W. 600.

9 People v. Campbell, 4 Park. Cr. (N. Y.) 386.

10 Miller v. State, 68 Miss. 221, 8 So. 273; Shifflett v. Commonwealth, 90 Va. 386, 18 S. E. 838; State v. Grimms (La.), 78 So. 661.

11 People v. Hagan, 60 Hun (N. Y.) 577, 14 N. Y. 233, 37 N. Y. St. 660.

larceny,12 the name of the victim in an indictment for assault and battery, 13 the name of the purchasers in an indictment for selling intoxicating liquor without a license.14 There can be no amendment which changes the identity of the offense.15

§ 930. Defects cured by statute.-In some jurisdictions, objections are not allowed to merely formal defects in an indictment.18 Other statutes, similar to the old Statutes of eofails, provided that objections to formal defects shall be unavailing if not taken before a particular time or step in the cause.17 We have already mentioned the statutes which permit amendment. These statutes are constitutional, but statutes prohibiting objections to defects in matters of substance would be unconstitutional,18 so where an indictment fails to describe the offense with sufficient certainty to give the accused notice of the charge, the defect can not be cured by statute.19 However, it is held that there may be cured by statute such defects as an omission of the day or month where time is not of the essence of the crime,20 or failure of an information for receiving stolen goods to allege when, where and by whom they were stolen.21

172 Bish. New Crim. Proc., 705; 3 B1. Comm. 407.

18 State v. Sullivan, 35 La. Ann. 844; People v. Scanlon, 23 N. Y. Cr. 426, 117 N. Y. S. 57.

19 Pattee v. State, 109 Ind. 545, 10 N. E. 421; Newcomb v. State, 37 Miss. 383.

20 Phillips v. State, 86 Ga. 427, 12 S. E. 650; State v. Peters, 107 N. Car. 876, 12 S. E. 74.

21 People v. Smith, 94 Mich. 644, 54 N. W. 487.

§ 931. Aider by verdict.-Under the common law, a defective statement in the indictment may be cured by verdict of guilty, provided the crime charged is sufficiently described to show the commission of an offense, and to apprise the accused of the charge against him, whether the defect is in form or substance.22 It was said in an early case, "where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined by it was such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict of the common law."23 When an indictment wholly fails to state an essential element of the crime the verdict will not aid the omission. Where the crime charged was the publishing of an obscene book, which was described by its title and its contents not set forth, the court held the omission fatal and said, "The rule is very simple, and it applies equally to civil and criminal cases; it is, that the verdict only cures defective statements. In the present case the objection is not that there is a defective statement, but an absolute and total want in stating that which constitutes the criminal act, namely, the words complained of."24

22 Black, Law Dict. "Aides by Verdict." See also, People v. Costello, 170 N. Y. S. 341, 182 App. Div. 341, 36 N. Y. Cr. R. 369; Guignon v. State (Nebr.), 163 N. W. 858; People v. Stine, 199 Ill. App. 422; Gargan v. Harris, 90 Conn. 188, 96 Atl. 940; Bridger v. State, 122 Ark. 491, 183 S. W. 962 (error in name of accused).

23 Smith v. Cleveland, 6 Metc. (Mass.) 332; Stennel v. Hogg, 1 Wms. Saund. 226.

24 Bradlaugh v. Reg., 3 Q. B. Div. 607. See also, Reyes v. State, 34 Fla. 181, 15 So. 875; Mahaffey v. State (Ala. App.), 75 So. 647; State v. Seymour (Utah), 163 Pac. 789; People v. Holtzman, 272 Ill. 447, 112 N. E. 370.

§ 932. Certain special indictments-Indictment for murder. The common law indictment for murder is complex and cumbersome, due, in large extent, to the fact that numerous details connected with the means and mode of killing, nature, size and location of the wound, etc., are necessary. There are many allegations used in the old form of indictment which are not essential, but are retained merely as a matter of form. The indictment must expressly charge the defendant with causing the death of the deceased.25 Where the death was caused by a violent act on the part of the defendant, it must be alleged that he did the violent act, and that death resulted therefrom. In the case of death resulting from the neglect of the accused to perform a legal duty, the duty, the negligence and the fact that death resulted from the neglect, must be alleged. When the means of causing death is known it must be stated,26 also the manner of using the means to produce the death must be alleged.27 An allegation that the accused "with a rifle did kill," or "with poison did kill" or "with a knife did strike, of which mortal wound deceased died," is not sufficient because it does not show the manner in which the means employed produced the death. If the means of causing the death is unknown, this fact must be alleged. In the case of several means of killing contributing to the death,28 all of them may be alleged.29 A substantial variance between the allegation, and the proof, relative to the means

25 West v. State, 48 Ind. 483; State v. Borders (Mo.), 199 S. W. 180.

26 Commonwealth v. Martin, 125 Mass. 394.

27 Edwards v. State, 27 Ark. 493; Meiers v. State, 56 Ind. 336; 1 East P. C. 341; Barranetine v. State 72 Fla. 1, 72 So. 280; Carr v. State (Tex. Cr.), 190 S. W. 727. See also, Green v. Commonwealth (Va.), 94 S. E. 940; Azbill v. State (Ariz.), 172 Pac. 658; Knight v. State (Ga.),

95 S. E. 679; People v. Falkovitch, 280 I11. 321, 117 N. E. 398; McDonald v. Commonwealth, 177 Ky. 224, 197 S. W. 665; Howard v. State (Fla.), 74 So. 882 (held variance not fatal where instrument used produces or may produce same kind of wound).

28 Willey v. State, 46 Ind. 363.

29 State v. Baldwin, 79 Iowa 714, 45 N. W. 297; State v. Jones, 86 S. Car. 17.

of killing makes the indictment bad, but if it is an unconsequential point, and is immaterial it is not necessarily fatal.30 Blackstone says: "If a person be indicted for one species of killing, as by poisoning, he can not be convicted by evidence of a totally different species of death, as by shooting with a pistol, or by starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an ax, or a hatchet, this difference is immaterial."31

Where the means alleged is a spade and the proof shows it was a shovel, or where the means alleged is strychnine, and it is proved that it was some other kind of poison, the variance is not fatal because immaterial; but where the means of killing is alleged to be a club, and proof shows it to have been a revolver, or it is alleged to be a knife and proof shows it to have been a club, the variance is fatal. If it is alleged that death was caused by a wound, the wound must be properly described, though at present there is not as great particularity as formerly existed. Thus, an erroneous allegation as to the location of a wound used to be fatal; but according to the better opinion today it is considered immaterial. Even though the allegation locates the wound on the right side of the head, in a case where the proof shows it to be on the left side, the variance is not fatal.32 However, repugnancy in the allegation itself, with respect to the location of a wound, may be fatal, as where it is described as "on the head and body, or where the allegation states the blow was struck on the

30 Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370; State v. Lauteuschlager, 22 Minn. 514; State v. Barnhart (La.), 78 So. 975; Watson v. State (Ga. App.), 94 S. E. 857.

314 B1. Comm. 196. See also, State v. Spahr (Ind.), 117 N. E. 648 (indictment charged that killing

was with a shovel, held that proof of killing with a brick or rock not a fatal variance).

32 Curtis v. Commonwealth, 87 Va. 589, 13 S. E. 73.

33 State v. Anderson, 98 Mo. 461, 11 S. W. 981.