Page:Harvard Law Review Volume 10.djvu/136

110 no HARVARD LAW REVIEW. to be set out, the courts will not declare it void as infringing the constitutional provision. There is much to be done. With proper legislation the present formal requirements can be done away with and the substantial matters only retained. Prominent among the offences needing radical treatment are embezzlement and false pretences. With such legislation, forgery, perjury, and many offences will not present the difficulties which now exist. No substantial rights will be taken from the accused, and the public will derive a great benefit. Much delay would be saved if trivial and purely formal mistakes in the indictment could be amended. It is generally assumed that there is no power to allow this to be done. It is not so clear, how- ever, that the Legislature may not empower the court to cause such amendments to be made. In Com. v. Holley,^ a statute authorizing amendment was upheld. The indictment in that case was found under St. 1852, c. 322, § 12, and charged the defendant with being a common seller of intoxicating liquor, and set forth a prior convic- tion. The statute provided a higher penalty for a second offence of this nature ; therefore the recital of the former conviction was essential. There was an error in this recital. The prosecuting officer was allowed to amend. The statute authorized this. The constitutionality of this provision of the statute was attacked; but the court upheld it. Shaw, C. J., in delivering the opinion, said (p. 459): — " But the court are of opinion that the statute is not open to this ob- jection. . . . The statute certainly intends to punish a party, on a second conviction, with greater severity than on the first, and therefore it is proper that the accused should understand from the indictment that he is charged with an offence aggravated by the fact of a prior conviction. . . . But such prior conviction is a collateral fact, which can only be proved by record, and therefore, in whatever form it is alluded to or mentioned in the indictment, it must be made certain by the record, when produced. There is no danger, therefore, that a party can be injured by such an amendment, because it must conform to the record ; otherwise the record will not prove it, or sustain the averment of a former conviction. It is a part of the indictment which derives increased weight from the finding of the grand jury, and one upon which they pass no judgment, but merely report the prior conviction, to be verified and identified wholly by the production of the record. The great principle asserted by the Declaration of Rights is that no man shall be put to answer a criminal charge until 1 3 Gray, 458.