47 N.H. 416 | N.H. | 1867
At common law clerical errors only in an indictment could be amended.
By our statute of July 3, 1863, matters of form may be amended, but not matters of substance; State v. Goodrich, 46 N. H. 186 ; and the only question here is, whether the amendment asked for is in matter of form or substance.
An indictment for larceny must give the name of the owner of the goods if known ; if not known the respondent may be charged with stealing the goods of a person unknown, and then it is said, that the king shall have the goods. If, however, the owner be known, it would be improper to allege that he was unknown, and upon trial he must be discharged of that indictment and tried upon a new one, giving- the name of the owner. 2 East. Crown Law 651; 3 Chitty Cr. Law sec. 949 ; 3 Campb. 264; 1 Ch. Cr. Law sec. 213. So is Wharton’s Am. Cr. Law 110, where it said that if the goods are not shown to belong to the person named the variance is fatal. If the indictment state the crime to have been committed in the dwelling house of a third person, and mistake the name, the error will be material. 1 Ch. Cr. Law sec. 296 ; Regina v. Cranage, 1 Salk. 385. So if the indictment be for housebreaking, and the name of the owner be wrongly stated, it will vitiate. 1 Ch. Cr. Law sec. 297.
In civil causes such a defect as here exists is deemed a substantial one. In Emerson v. Wilson, 11 Vt. 357, plaintiff declared on a note payable to Emerson, Godfrey & Co., and it was held that an amendment describing the note as payable to one of the partners could not be made. In Commonwealth v. Pope & al., which was an indictment for obstructing the engine upon a railroad, alleged to bo built by the Boston & Worcester Railroad Company, and the proof was that it was built by the Boston & Worcester Railroad Corporation, it was held after verdict that the variance was fatal. See 3 Geenl. Ev. sec. 22, and notes and numerous cases, and also Ibid, sec. 161, and note; State v. Vittum, 9 N. H. 519.
It is manifest from these authorities that the name of the owner of the goods is matter of substance in an indictment for larceny, and therefore cannot be amended. In State v. Goodrich, before cited, it was decided that the indictment could not be amended by stating the value of the goods stolen. This was held to be material upon the ground that the value of the goods made the distinction between grand and petit larceny. An indictment is the finding of a jury upon oath, and it would seem to follow, as matter of course, that nothing co'uld be added to it that was essential to be proved in order to constitute the offence, without the concurrence of the same jury; neither can any such material matter be changed without their concurrence.
In the case before us, the grand jury has accused the respondent of stealing the goods of John Rider & Son, and that allegation must be proved or the prosecution must fail. He has not, however, been accused by the jury of stealing the goods of John E. Rider, and if the amendment is allowed he would be put upon trial for an offence of which
The cases cited by the attorney general are mostly under another section of the statute, authorizing amendments in civil causes in matters of substance, and which does not apply to criminal cases.
Motion to amend denied.
