Page:Harvard Law Review Volume 10.djvu/137

111 IMPROVEMENT IN CRIMINAL PLEADING. Ill the criminal evidence has been laid before a grand jury, and they have found probable cause, at least, to believe the facts true on which the criminality depends. But, in setting forth a former conviction, they aver no fact resting on testimony, except that of identity of the person charged with the person before convicted. That fact being found, all the particu- lars respecting the former conviction, as to the nature of the crime, the time and circumstances of its commitment, the time when and the court before whom the conviction was had, and the sentence awarded, roust be proved by matter of record, altogether more certain than any finding of a grand jury, upon an ex parte hearing, possibly can be, and such prior con- viction, being a judgment against the party himself, is necessarily one of which he is conversant, and by which he is conclusively held." This case is certainly an authority in favor of the right of the Legislature to authorize the amendment of an indictment. The amendment allowed was not one of form merely. As we have seen before, the subject matter of the amendment was a necessary part of the indictment.^ It was essential to allege and prove that a prior conviction had been had, and that the defendant was the person who had been convicted. The identity of the defendant was a sub- stantial issue. If the government failed to prove this, the case was not within the statute. In trials under the Habitual Criminals Act this issue of identity sometimes is tried at great length. This act provides that whoever has been twice convicted of crime, sentenced and committed for terms of not less than three years each, shall upon conviction of a felony be punished by imprisonment in the state prison for twenty-five years. This case of Com. v, HoUey has not been questioned in this State. It has been cited with approval.^ If an amendment may be per- mitted in such a case, it is reasonable to suppose that it may be allowed in a pure matter of form. Legislation authorizing amend- ments in formal matters would advance greatly the administration of the criminal law. The work of reform should not be confined to procedure. Much oughfto be done with reference to the substantive law of crimes. For example, the technical distinction between larceny, embez- zlement, and false pretences — which are merely different forms of theft — should be abolished. But to examine this subject thor- oughly would extend this article beyond reasonable bounds. 1 Com. V. Harrington, 130 Mass. 35. 2 Com. V. Ilall, 97 Mass. 570; Com. v. Harrington, ubi supra. 15