I concur in both opinion and decree herein handed down. The names *Page 511 "Black" and "Blake" are not idem sonans, although the two namesmay signify the same, for they do not sound alike, being pronounced differently.
There was, therefore, a fatal variance between the proof offered at the trial and the description given in the indictment; and hence, upon the discovery of this variance, the indictment should have been amended to accord with the facts, as permitted by section 1047 of the Revised Statutes of 1870, before proceeding further with the trial.
As the accused was not charged with a capital offense, but only with manslaughter, I concede the right of the state, in this instance, to amend the indictment under R.S. § 1047. But it is as well to state at this time, as a caution to prosecuting attorneys and to avoid the occurrence of futile trials and unnecessary delays, that I do not concede the right of the state to amend an indictment in a capital charge without the concurrence of the grand jury.
When the statute of 1855 (now R.S. § 1047) was adopted, following the English Criminal Procedure Act of 1851 (14 and 15 Victoria, c. 100), the method of preferring charges for crimes,in all cases, lay exclusively within legislative control; for the Constitution of 1852 (article 103), then in force, provided simply that "prosecutions shall be by indictment or information"; leaving it therefore to the Legislature to provide for prosecutions in all cases, even capital, by information only. The term "grand jury" is not so much as mentioned in that Constitution. It was the same with the former Constitutions of 1812 and of 1845, and with the later Constitution of 1868, under which the Revised Statutes of 1870 were enacted.
So that, until then, there was no constitutional requirement in any case that the prosecution should be by indictment by a grandjury, and the Legislature was free in all cases to direct theframing, as well as the amendment, *Page 512 of indictments, in such manner as it deemed proper, or to dispense with indictments altogether, and provide for prosecutions exclusively by information only. And hence, until then, the only reason why capital offenses could be prosecuted upon indictment only, was the act of 1855, re-enacted as section 977 of the Revised Statutes of 1870 (now amended by Act 156 of 1898), which forbade it.
But into the Constitution of 1879 (article 5) was put a proviso as follows:
"Provided, that no person shall be held to answer for a capital crime unless on a presentment or indictment by a grand jury, except, etc."
Which proviso was repeated in the Constitution of 1898 (article 9), and in our present Constitution of 1921 (article 1, § 9).
And as this proviso (applicable under our Constitution tocapital crimes only) is in the same words as the Fifth Amendment to the Constitution of the United States (applicable not only to capital but also to "otherwise infamous" crimes), it follows that it must have the same meaning in both instruments, as well as in the Constitutions of other states having similar provisions.
But "in many jurisdictions an indictment or presentment by a grand jury is expressly required in the case of certain crimes by constitutional provision; and in such cases a prosecution in any other mode, even under legislative sanction, is unauthorized and an absolute nullity for want of jurisdiction." 31 Corp. Jur. 565 (verbo Indictments and Informations, § 13).
And since "at common law an indictment (being the finding of a grand jury upon oath and depending upon this fact, among others, for its validity) cannot be amended by the court or the prosecuting officer in any matter of substance without the concurrence of the grand jury which presented it, * * [it follows that] a fortiori, there can be no such amendment where the Constitution requires *Page 513 an indictment by a grand jury." 31 Corp. Jur. 823, 824, § 413.
Hence, "where such a form of accusation is required by the Constitution the Legislature cannot authorize the court to amend an indictment in matter of substance, for as amended it would not be the finding of the grand jury." 31 Corp. Jur. 825, § 417.
And "no doubt, the district attorney, who has himself filed an information, may be allowed to amend it. * * * But the same isnot true of an indictment; which emanates, not from the districtattorney, but from the grand jury." (Italics mine.) State v. Jack, 72 So. 429, 139 La. 885.
In such cases the indictment should be amended by the grand jury which presented it, or the defendant should be indicted anew.
I therefore concur.