OPINION OF COURT.

premises the said Mary Barrett then and there was and is guilty of the crime of arson of the first degree and felony,” etc.

At the trial, counsel for the prisoner, moved to quash the indictment on the ground that under the statute (Sec. 1, page 933, Rev. Code), the indictment must allege the building to be the property of the occupier. It was not so alleged in the indictment.

State vs. Bradley, 1 Houst., Crim. Cases, 164; 3 Greenleaf on Evidence, Sec. 53; People vs. Planarcum, 2 New York (Johnson's Reports), 105.

LORE, C. J.:-The case of State vs. Bradley, Houst., Crim. Cases, 164, is an indictment for burning a barn, and there the tenant in possession is entitled to compensation money. The language of the Court can only be applied to that case. As a matter of course, the property must be laid in the tenant in possession in a case of that kind, because he was the person who was entitled to whatever compensation their might be. That was the case of a variance also between the allegations in the indictment. It is laid down by Greenleaf that the ownership of the house must be laid in some other person than the person himself.

This indictment distinctly sets out that this house which was alleged to have been set on fire by the person, was in the possession of Lafferty, the prosecuting witness, as tenant; and we think there is enough in it to sustain the indictment. We refuse to quash the indictment.

NOTE-Lore, C. J., charged the jury. After remaining out over night, the jury reported that they could not agree and were thereupon discharged. The prisoner was subsequently indicted at the same term for manslaughter and pleaded guilty.

SYLLABUS.

STATE VS. THOMAS C. MOORE.

Constitution-Jurisdiction of Court-Registration of Voter-Influencing to Register—Information—Amendment—Pleading— Demurrer-Separate Offenses-Practice-Due Process of Law-Bail Bond-Abatement-Evidence.

I. When an information is filed charging the defendant with influencing certain persons to register, the State will be permitted, without terms, to amend the information by inserting the names of the persons alleged to have been influenced.

2. The Court of General Sessions is the trial court in all cases arising under Section 7, Article 5 of the Constitution.

3. It is not necessary, in order to give the Court jurisdiction, to aver in the information an examination and commitment or holding to bail of the defendant. It is a matter of defense, and defendant may avail himself of the failure to proceed by examination and commitment or holding to bail, by a plea in abatement.

4. If separate and distinct offenses are joined in the same information the State will be compelled to elect which one it will prosecute.

5. A prosecution by information and trial by the Court without the intervention of a jury, is due process of law under the 14th Amendment to the Constitution of the United States.

6. In the prosecution of offenses mentioned in Section 7, Article 5 of the Constitution of this State, it must appear by the bail bond that the defendant was held to bail for the offense charged in the information.

7. A recital in such bond that defendant was held to bail for attempting to influence to register "certain persons," is not sufficient to show that he was held to bail for attempting to influence to register A. B.; and the State will not be permitted to show by the complaint and warrant before the Justice of the Peace, that "certain persons" in the bail bond means the person named in the information.

(October 30, 1899.)

LORE, C. J., and PENNEWILL, and BOYCE, J. J., sitting.

Robert C. White, Attorney-General, and Peter L. Cooper, Jr.,

Deputy Attorney-General, for the State.

AMENDING INFORMATION-ARGUMENTS.

Walter H. Hayes and Herbert H. Ward for the defendant.

Court of General Sessions, Kent County, October Term, 1999.

INFORMATION filed for violating the provision of Section 7 of Article 5 of the Constitution by influencing certain persons to register as qualified voters, (No. 1 April Term, 1899).

The information filed by the Attorney-General was demurred to on several grounds. The Attorney-General thereupon asked leave to file the following amendments to the information:

"And now to wit, this thirtieth day of October, A. D. 1899, comes Robert C. White, Attorney-General of the State of Delaware, and prays leave of the Court to file the following amendments, to wit, by adding to the first paragraph of the first count in said information the following words and names, to wit, Elijah M. Gregory, John Seeney and John Wilmer, and by adding to second and third counts in said information, and before the commencement of said counts, the words following, to wit: And the said Robert C. White, Attorney General as aforesaid now here in the Court of General Sessions of the said State, now sitting in the County aforesaid, further information makes that the said Thomas C. Moore late of Duck Creek Hundred in the county and State aforesaid was on the eighteenth day of April, A. D. 1899, held in bail by Ezekiel V. Cooper, Esquire, a Justice of the Peace of the said State in and for the county aforesaid in the sum of one thonsand dollars for the appearance of the said Thomas C. Moore, at the next term of the Court of General Sessions in and for said county, to answer the charge of using money to influence certain persons to register as qualified voters in Representative District, No. 1, in Kent County aforesaid, to wit: Elijah M. Gregory, John Seeney and John Wilmer."

Mr. White:-The effect of this amendment is simply the addition of the names, Elijah M. Gregory, John Seeney and John Wilmer. The information charges the defendant, in the first para

AMENDING INFORMATION-ARGUMENTS.

graph, with influencing certain persons, without naming those per

sons.

LORE, C. J.:-They are not set out in the information?

Mr. White:-We do name them in the counts, but not in the first paragraph of the information. In each count we do state that these certain persons were influenced, naming them.

Mr. Hayes:-This is a case of first impression in this State, as to amending this information-in the case of State vs. Collins, 1 Pennewill, 420, there was no question raised as to the proceedings.

The only difference between an information and an indictment is that one is found by a grand jury and the other is presented by the Attorney-General. We object to any amendment being made to the existing information. As to filing a new information, that is something else. We are not discussing that question at this time; and if an amendment is allowed, we think it should be allowed on certain terms.

Mr. Cooper, Deputy Attorney-General:-This information is filed under the provisions of Section 8, Article 5, of the amended Constitution; Section 7, of of Article 5, enumerating a number of offenses for a violation of the election laws, and Section 8, of Article 5, providing the mode in which persons charged with the commission of the offenses enumerated in Section 7, shall be tried.

Count number 2 sets out the offense without reciting, as it does in count number 1, that the defendant had been held to bail by a Judge or a Justice of the Peace. The amendment which is offered in no manner changes the substance of the indictment; it only alleges certain matter which gives the Court jurisdiction, in the subsequent counts of the information.

I take it that unless the defendant had been held to bail by a Judge or a Justice of the Peace, the Attorney-General would not

AMENDING INFORMATION-ARGUMENTS.

have the power to file the information, and it would be beyond the jurisdiction of the Court to try it until he was so held.

So that the effect of the amendment goes to the jurisdiction of the Court, to show that the defendant has been held to bail by a Judge or a Justice of the Peace, which was set out in the first count, but not set out in the subsequent counts.

It is true that an indictment ordinarily cannot be amended as to a matter of substance, because an indictment is the finding of a grand jury. It is the finding of the peers of the accused, and it is their finding upon which he is tried. The grand jury is discharged, and if their work is imperfect, of course it cannot be corrected either by the Court or by the Attorney-General.

But an information is filed by the officer representing the government, or as some of the old cases say, "filed by the king" -the government being the party on the one side and the defendant on the other; that the government (as in this case the AttorneyGeneral) may amend its pleadings at any time as a matter of right and not a matter of discretion of the Court.

I find in the states of Kentucky, Vermont, Connecticut, Colorada and Michigan there are informations for certain offenses,-I think all being misdemeanors as this is. Those states have now laid down a uniform line of procedure, and I could not find any case where any of these states using informations had refused to permit an amendment. I do find, however, where some of the states that permit a prosecution for a crime by information, allow amendments.

State vs. Wright, 24 Atl., (Vt.) 250; King vs. Wilks, 4 Burrows, 2568.

I have been unable to find any case in which an amendment to an information at common law has not been allowed.

LORE, C. J.:-Are we to understand, Mr. Hayes and Mr. Ward, that your position is that an amendment could not be granted; or that if granted, it must be upon terms?