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State v. McCarthy

Supreme Court of Rhode Island
May 2, 1891
22 A. 282 (R.I. 1891)

Summary

In State v. McCarthy, 17 R.I. 370, 22 A. 282 (1891), the court held that a substantive amendment to an indictment could be made only in the presence of and with the consent of the grand jury, or under Pub. Stat. R.I. 1891, ch. 248, sec. 4, the precursor of G.L. 1956 (1969 Reenactment) § 12-12-4, with the consent of the accused.

Summary of this case from State v. Carlone

Opinion

May 2, 1891.

Indictment for breaking into the house of one Jeremiah B.F. Proof that the house belonged to Jedediah B.F. Held, that the indictment could not be amended by changing Jeremiah to Jedediah. The amendment is a matter of substance, and not allowable without the consent of the accused. Pub. Stat. R.I. cap. 248, § 4.

DEFENDANT'S petition for a new trial.

Ziba O. Slocum, Attorney General, for plaintiff.

S.S. Stone E.F. Lovejoy, for defendant.


The defendant was indicted in the Court of Common Pleas, at its December Term, 1890, for breaking and entering in the daytime, the house of one Jeremiah B. Fuller in Providence, with intent to commit larceny therein. At the trial, the prosecution called as a witness the owner of the dwelling-house, who testified that his name was Jedediah B. Fuller. When the case for the prosecution was closed, the defendant moved that the indictment be quashed because of the variance between the allegation as to the name of the owner of the house and the proof submitted. The court overruled the motion to quash, and upon motion of the Attorney General, and against the defendant's objection, permitted the indictment to be amended by striking out the name Jeremiah, and inserting the name Jedediah. The defendant excepted to the rulings of the Court of Common Pleas in the matters stated, and, the jury having returned a verdict of guilty, now petitions for a new trial, upon the ground, among other grounds, that the Court of Common Pleas had no authority to permit the amendment.

We think that a new trial should be granted. The amendment to the indictment, being in a matter of substance, could only properly have been made in the presence of and with the concurrence of the grand jury; 1 Bishop Criminal Procedure, §§ 707-711; Ex parte Bain, 121 U.S. 1; or under Pub. Stat. R.I. cap. 248, § 4, with consent of the accused.

Petition granted.


Summaries of

State v. McCarthy

Supreme Court of Rhode Island
May 2, 1891
22 A. 282 (R.I. 1891)

In State v. McCarthy, 17 R.I. 370, 22 A. 282 (1891), the court held that a substantive amendment to an indictment could be made only in the presence of and with the consent of the grand jury, or under Pub. Stat. R.I. 1891, ch. 248, sec. 4, the precursor of G.L. 1956 (1969 Reenactment) § 12-12-4, with the consent of the accused.

Summary of this case from State v. Carlone

In McCarthy, this court held that a substantive amendment to an indictment could be achieved only in the presence of and with the consent of the grand jury, "or under Pub. Stat. R.I. cap. 248, § 4, with consent of the accused."

Summary of this case from Picillo v. Sharkey
Case details for

State v. McCarthy

Case Details

Full title:STATE vs. DANIEL McCARTHY

Court:Supreme Court of Rhode Island

Date published: May 2, 1891

Citations

22 A. 282 (R.I. 1891)
22 A. 282

Citing Cases

State v. Davis and Quigg

The defendant's counsel seem also in a way to treat a bill of particulars as in effect an amendment of the…

State v. Carlone

State v. Child, 158 Me. 242, 182 A.2d 675 (1962). In State v. McCarthy, 17 R.I. 370, 22 A. 282 (1891), the…