in civil actions, that is to say, the party who adds the similiter begins.

As to the facts, &c. to be proved: it is a general rule, that all the facts and circumstances stated in the indictment or other pleading, which cannot be rejected as surplusage, must be proved; as to what facts, &c. must be stated, see ante, p. 119. But where a felony is made additionally penal, if committed at a particular time or place, or under particular circumstances, then if the time or place or circumstances be not proved, the offender may still be convicted of the simple felony as for instance, if upon an indictment for stealing from a dwellinghouse, the prosecutor prove a larceny, but fail in proving the goods to have been stolen from the dwelling-house, the defendant may be found guilty of the simple larceny. So, if upon an indictment for house-breaking, you fail to prove the breaking and entering, the prisoner may still be convicted of stealing in the dwelling-house, if the goods be of the value of 5l.; or if the goods be of a less value, or you fail in proving that the goods were stolen from the dwelling-house, he may be convicted of the simple larceny. So, upon an indictment for burglary and larceny in a dwelling-house, if the prosecutor fail in proving the offence to have been committed in the night-time, the defendant may be convicted of house-breaking; or if that be not proved, he may be convicted of stealing in the dwelling-house, or of the simple larceny, as in the instance last mentioned.

And the facts, &c. must be proved in substance as laid; a variance in substance will be fatal. As to statements of matter of record, if the statement purport to be descriptive of the record, any the slightest variance between it, and the record given in evidence to prove it, will be fatal; but if the statement be not descriptive of the record itself, but merely of some fact which is to be proved by a record, there a literal variance will be immaterial, if the record prove the allegation in substance. Purcell v. Macnamara, 9 East, 157. and see the cases collected upon this subject, 1 Arch. Pl. and Ev. civ. act. 336, et seq. So, if a deed, bill of exchange, or other written instrument, be set out in hæc verba, or by a fac simile, the slightest variance will be fatal; but if it be described generally, as in larceny, evidence of a written instrument substantially answering the description, will sustain the allegation. It has been decided, however, that a mere literal variance, as "undertood" for "understood," (R. v. Beach, Cowp. 229. 1 Doug. 194.) or "reicevd" for "received," (R. v. Hurt, 2 East's P. C. 977), is in all cases immaterial. See R. v. Dudman, 4 B. & C. 850. And by stat. 9 Geo. 4, c. 15, it shall be lawful for any Court of oyer and terminer and gaol delivery, or any judge sitting at nisi prius, if such court or judge shall see fit so to do, to cause the record, on which any trial may be pending before them, in any indict

ment or information for any misdemeanor, to be amended, where any variance shall appear between a matter in writing or print produced in evidence, and the statement thereof upon the record; and thereupon the trial shall proceed, as if no such variance had appeared. See 2 Arch. P. A. 72, 73. But a variance between the indictment and proof in the number or quantity of goods alleged to be stolen, or their value, or the like, is not material; if a larceny of any one article, mentioned in the indictment, be proved, it will be sufficient.

The time laid in the indictment, unless it be of the essence of the offence, need not be proved as laid; and a variance, in that respect, will not be material.

So, if any parish or place be laid as special venue merely, and not as necessary local description, a variance between the indictment and proof, in that respect, will not be material. See ante, p. 121.

As to the admissibility of evidence of acts not charged in an indictment: if they tend to prove acts, &c. which are charged, of course they may be admitted. Thus, if a guilty knowledge form an ingredient in the offence charged, the prosecutor may give in evidence any facts from which the jury may infer it: as, for instance, upon an indictment for knowingly uttering a forged bill of exchange, evidence that the defendant gave a false account of the parties to it, and, when he was apprehended, had other forged bills of exchange upon his person, was holden to be properly received, in proof of his guilty knowledge. R. v. Hough, R. & Ry. 120. See other cases upon this subject, 2 Arch. P. A. 248, 249. So, where the intent, with which an act is done, forms an ingredient in an offence, the prosecutor may give evidence of any acts, from which the jury may infer it. With these exceptions, however, a prosecutor will not be permitted to prove a prisoner guilty of one felony, by proving him guilty of another unconnected with it. And so far is this principle carried in favour of prisoners, that, if a prisoner be charged in different counts of an indictment with distinct felonies, the Court will not in general allow him to be prosecuted for more than one; but will put the prosecutor to his election for which felony he will prosecute. See ante, p. 124. So, upon an indictment for stealing several articles, if it appear in evidence that they were stolen at different times, the prosecutor will, in like manner, be put to his election. See post, title " Larceny." But, where several offences of the same nature form parts of one entire transaction, it is in the discretion of the judge to confine the prosecutor to the proof of one, or to allow him to give evidence of the others: as, for instance, where a shopman being suspected of stealing from his employer's till, marked money was put into the till, and, being watched, he was observed going to the till, immediately after which some of the money was missed; at this part of the evidence at the trial,

it was objected, for the prisoner, that the prosecutor should be confined to this instance, but the judge overruled the objection; it was then proved, that, shortly after, he was observed to go again to the till-that he took his hand out of it, clenched, and put it into his waistcoat pocket, and that the till, being immediately examined, it was found that more of the money was gone from it; the prisoner was therefore apprehended and searched, and six shillings of the marked money found upon him: upon motion to stay the judgment, on the ground of evidence of another offence being received, the Court held, that it was in the discretion of the judge to allow it: the two felonies were so connected, as to form parts of one entire transaction, and the one was evidence to show the character of the other. R. v. Ellis, 6 B. & C. 145. So, there can be no objection that the evidence of one offence, proves the defendant to have been guilty of another offence also. R. v. Theodore Moore, 2 Car. & P. 235.

If the indictment contain any facts or circumstances not included in the definition of the offence, and which, therefore, need not to have been stated, they may be rejected as surplusage, and need not be proved; and this, as well in an indictment on a statute, as in an indictment for an offence at common law. R. v. Wm. Jones, 2 B. & Adolph. 611.

2. The manner of proving the matter in issue.

Confessions.] A confession by the defendant, if obtained fairly, and without holding out any inducement to him to make it, is nearly the strongest evidence that can be given of the facts stated in it, as against the party making it. But if any inducement, by promise of favour or threat, be held out to the prisoner, as by telling him he had better tell all he knew, R. v. Kingston, 4 Car. & P. 387, or that he had better tell where he had got the property, R. v. Dunn, 4 Car. & P. 543; "you had better split, and not suffer for all of them," R. v. Thomas, 6 Car. & P. 353; "it would have been better if you had told at first," R. v. Walkley & Clifford, 6 Car. & P. 175; "that unfortunate watch has been found, and, if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle," R. v. Parratt, 4 Čar. & P. 570, or the like: any confession the prisoner may have thereby been induced to make, cannot be given in evidence against him.

But nothing short of a threat, or of a promise of favour with respect to the offence charged against the prisoner, will have this effect. Where a confession was obtained from a boy of fourteen years of age, by questions put to him by the constable who apprehended him, and at a time when the boy had not had food for nearly a day, a majority of the judges held, that the confession was receivable in evidence. R. v. Thornton, Ry. & M. 27. Where a man, committed for murder, was visited by the chaplain

of the gaol, who, in long and very earnest discourse with him upon the necessity of repentance, and of confessing his sins, wrought so much upon the man's mind, that, in a subsequent interview with the gaoler, the prisoner said that he would tell him all about it; the gaoler told him not to say any thing which he wished the magistrates not to know, as it would be his duty immediately to tell them of it; the prisoner said that he wished it, and then gave the details of the murder: the judges were unanimously of opinion, that this confession was receivable in evidence. R. v. Gilham, Ry. & M. 186. Where a constable told a prisoner, " if you will tell where the property is, you shall see your wife," Patteson, J. held, that this was not such an inducement as to exclude evidence of what the prisoner said. R. v. Lloyd, 6 Car. & P. 393. So, where it appeared that the statement of the prisoner was obtained from him, in answer to questions put to him by the magistrate, Littledale, J. allowed it to be read. R. v. Ellis, Ry. & M. N. P. C. 432. So a statement made by a person as a witness before a Committee of the House of Commons, and under compulsory process, was received in evidence by Abbott, C. J. upon an indictment afterwards preferred against the witness. R. v. Merceron, 2 Stark. 366. So, where a prisoner in gaol, on a charge of felony, asked the turnkey of the gaol to put a letter in the post for him, directed to his father, and the turnkey, instead of putting it into the post, sent it to the prosecutor: Garrow, B. held, that the letter was admissible in evidence against the prisoner, notwithstanding the manner in which it was obtained. R. v. Derrington, 2 Car. & P. 418.

And, where a threat or promise is used, it must appear to have been holden out by some person concerned in apprehending, examining, or prosecuting the prisoner, or by the person to whom the confession is made. Thus, where, upon a man being apprehended for larceny, several of his neighbours admonished him to tell the truth and consider his family, and he thereupon made a confession to the constable: the judges held this confession to be receivable in evidence, because the inducement to confess was not holden out or sanctioned by any person who had any concern in the business. R. v. Row, R. & Ry. 153. Upon the trial of a girl for the murder of a bastard child, it appeared that a woman, who was present when the surgeon was attending her, mentioned that she had advised her to confess, and the girl then made a confession to the surgeon: Park, J. and Hullock, B. held, that the confession was receivable in evidence, because the inducement to confess was holden out by a person who had no authority whatever to do so; if it had been by the constable, prosecutor, or the like, it would have been otherwise. R. v. Gibbons, 1 Car. & P. 97. And see R. v. Tyler, Id. 129. But where a girl, being apprehended for the murder of her child, was left by the

constable in the custody of a woman, who told her she had better tell the truth, otherwise it would lie upon her, and the man would go free; upon which she made a confession to the woman: J. Parke and Taunton, JJ. held this confession not receivable, as it was made in consequence of an inducement held out to the prisoner by a person who had her in custody. R. v. Enoch, 5 Car. & P. 539. And, where the committing magistrate told the prisoner, that, if he would make a disclosure, he would do all he could for him, and the prisoner afterwards made a disclosure to the turnkey of the gaol: J. Parke, J. held, that it was not receivable in evidence after the promise holden out by a magistrate, more especially as the turnkey had not given any previous caution to the prisoner. R. v. Cooper, 5 Cur. & P. 535.

If, however, after an inducement by threat or promise has been holden out to a prisoner to confess, and, before any confession actually made, the prisoner be undeceived as to the promise or threat, and assured that he has nothing to hope from the one or fear from the other, any confession he makes afterwards will be receivable in evidence. Where a man, committed for murder, was told by a magistrate, that, provided he was not the person who struck the fatal blow, he would use all his endeavours and influence to prevent any ill-consequences to him, if he would disclose all he knew of the murder; and the magistrate wrote upon the subject to the Secretary of State; but, upon learning from him that mercy could not be extended to the prisoner, he informed the prisoner of it; afterwards the prisoner made a confession before the coroner, but he was previously told by him that any confession or admission he should make would be given in evidence against him at the trial, and that no hope or promise of pardon could be held out to him: Littledale, J. held, clearly, that this confession was receivable in evidence. R. v. Cleeves, 4 Car. & P. 221. So, upon the trial of a girl for administering poison, it appeared that she was threatened by her mistress, that, if she did not tell all about it that night, a constable should be sent for the next morning, to take her before the magistrates; and she made a statement accordingly, which the judge refused to receive in evidence; but it appeared, also, that the constable was actually sent for the next morning, and took her into custody, and that whilst on the way to the magistrates, in his custody, she made another confession to him: Bosanquet, J. held this latter confession to be admissible in evidence, for, at the time the prisoner made it, the inducement was at an end. R. v. Richards, 5 Car. & P. 318. So, where constables had induced a prisoner to confess, by telling him that his companions had " split," and he might as well do so; but afterwards, upon this appearing before the magistrate who took the examination, he informed the prisoner that his confessing would do him no good, but that he would be committed to prison to take his trial; Denman, C. J.