Page:Harvard Law Review Volume 10.djvu/133

107 IMPROVEMENT IN CRIMINAL PLEADING. 10/ " burn " in arson,^ " assault," ** break," " enter," furnish all the information which the defendant can require so far as the indict- ment is concerned. No description of the means employed to cause the burning, assault, etc., need be set out. Other words and expressions will occur to the reader. Why should the long recitals given in the precedents be necessary in charging embezzlement, or perjury, or homicide ? Many of them are not essential. Instead of furnishing certain information, as construed by the courts, the)' lend uncertainty to the proceedings. In some few cases a curious result has been reached. The rule requiring certainty of statement has been perverted by excess of allegation so as to cause uncertainty at the trial. The courts have been unwilling that the meritorious case should fail by reason of some variance between an unnecessarily detailed statement in the indictment and the proof at the trial, and so have decided that the variance is not material. There are many instances where they have said that the variance between the allegation and the proof is immaterial if the proof shows the thing to be of the same general nature. In homicide, where the charge is causing death by throwing on the floor, proof of death caused by throwing upon a chair is sufficient.^ But the decisions are not uniform in this regard. It is not within the plan of this article to undertake to reconcile them. Although in an indictment for the larceny of a horse, it is not necessary to allege the color of the horse, yet, if the color is stated, it must be proved. Other cases might be cited.^ It is familiar that, with few exceptions, allegations of time and place need not be proved, if the offence is not barred by the statute of limitations, and was committed within the county where the indictment is found. That the Legislature may deal with the matter of criminal plead- ing, provided the constitutional provision is not violated, is beyond question. And thus acts may be passed which will not operate to relieve the pleader from imparting the information which we have seen is required to be given to the person accused. The court has 1 The following is the precedent for arson at common law. It has done long and faithful service. "That A. B.," of etc., on etc., at etc., "feloniously, wilfully, and maliciously did set fire to and burn the' dwelling-house of one C. D., there situate." This is a model. One wonders why such simplicity of form is not the rule, instead of the exception. 2 Com. V. McAfee, io8 Mass. 458. See also on this subject Com. v. Morgan, 149 Mass. 314, and Com. v. Noble, 165 Mass. 13. Noble, 165 Mass. 13.
 * See Com. v. Wellington, 7 Allen, 299; Com. v. Morgan, 149 Mass. 314; Cora. v.