can be found permitting amendment, I be set out in the indictment, and time is after verdict, of an important matter like the date of the commission of the offence. In the following cases the Pennsylvania courts have permitted amendments, after verdict, of the pleadings: Com. v. George, 12 Sup., 1. Girts v. Com., 22 Pa., 351. Com. v. Bubais, 197 Pa., 542. Com. v. Kaiser, 184 Pa., 493. Com. v. Gurley, 45 Pa., 392. Com. v. Duffy, 49 S. C., 364. Brown v. Com., 78 Pa., 127. Oliver v. Wheeler, 26 S. C., 9. Dougherty v. Com., 69 Pa., 293. And in these cases the merest matter of form only was amended. The Act of March 31, 1860, section II, etc., confines the power of amendment to "formal defects.' Our Statute is almost a literal copy of Stat. 14 and 15 Victoria, C. 400, section 25. (See Com. v. Kaas, 3 Brewst., 422.) The English decisions under this statute say that amendments may be made even after counsel for the prisoner has addressed the jurv and closed his case, but amendments cannot be made after verdict. 22 Cyc., 435. Note 56. not one of them. The time of committing the offence is formal allegation apparent on the face of the record, and for that reason can be amended when misstated through clerical error or otherwise. "Under the Criminal Procedure Act, every objection to an indictment for defects apparent upon its face must be taken by demurrer or motion to quash before the jury is sworn, and not afterwards; after the jury are sworn, the indictment cannot be quashed or the judgment arrested." Commonwealth v. Frey, 50 P. S., 245. "Where an indictment for unlawfully selling liquor was found, leaving a blank for the name of the person to whom the liquor was sold. On the trial, after a witness had been examined, the court allowed a name to be inserted. Held, to be proper under the 13th section of Act of March 31st, 1860." Rough . Commonwealth, 78 P. S., 495. In the same case, last paragraph of the opinion, the learned Chief Justice Agnew said: "The purpose of the revisers of the criminal code was to prevent a failure of justice through too rigid an adherence to forms. The 13th section is a most necessary and useful provision to this end, and ought not to be frittered away John M. Groff, District Attorney, con- by unfriendly interpretation." tra. Reg. v. Oliver, 13 Cox. C. C., 588. Reg. v. Larkin, 2 C. L. R., 775. Reg. v. Frost, 3 C. L. R., 665. In this case, the motion in arrest of judgment is based upon an error occurring in the date of the offense as alleged in the indictment. The indictment alleges that the offense was committed "October 31st, 1914," the indictment was found "April 20th, 1914," thereby the crime was alleged to have been committed at an impossible date. The Commonwealth's position is that in an indictment for murder, the date is not substantive but formal, and that under the Act of Assembly this defect should have been taken advantage of by the defendant, either on a motion to quash or by demurrer before plea entered. The Act of March 31, 1860, P. L. 435, fixes the substance of the allegations to In the case at Bar, the indictment was read to the defendant, in the presence of his counsel, when arraigned. The date was not of the substance of the offense, the defect was formal, and defendant was bound to take advantage of it, by demurrer or motion to quash. He could not avail himself of the double chance, viz.: first, of having the jury say he was not guilty; and second, if he failed in that, then to reserve to himself the right to move in arrest of judgment. The arraignment is the call of the prisoner to the bar, in order that he may answer the charge against him in the indictment. made under the Criminal Procedure Act, a time when the bill was not found, nor of March 31st, 1860." Myers and Murray v. Commonwealth, 79 Pa. St., 308. the crime committed, is a mere clerical error; and the court will direct the endorsement on the bill to be amended according to the truth of the case." Time, therefore, is a formal defect and apparent on the face of the indictment, and must be taken advantage of by de-a murrer or motion to quash before jury sworn. The plea cures the defect. See Section 11, Act of March 31, 1860. Rough . Commonwealth, 78 P. S., 495. Commonwealth v. Jessup, 63 P. S., 34. Commonwealth v. Newcomer, 49 P. S., 478. Phillips v. Commonwealth, 44 P. S., 197. A variance between the indictment and proof cannot be taken advantage of by a motion in arrest of judgment. Commonwealth v. Livingstone, 18 P. C. C., 236. Kilrow v. Commonwealth, 89 P. S., 480. In most jurisdictions, indictments can be amended in statement, time, place, etc. 22 Cyc., 434 (B). In Brown v. Commonwealth, 78 Pa. St., 122, the Court, following the opinion in Dougherty v. Commonwealth, 69 Pa. St., 286, held that the caption of indictment might be amended after trial, conviction, sentence and writ of error. The Commonwealth's position here is, that whether the indictment was amended or not, the defect was not substantive and the verdict, without motion to quash or demur, cured the defect, and the amendment is only the formal action of the Court correcting the defect as cured by the verdict. Myers and Murray v. Commonwealth, 79 Pa. St., 308. Rough v. Commonwealth, 50 Pa. St., 495. Commonwealth v. Williams, 149 Pa. St., 54. Commonwealth v. Shields (2), 50 Sup. Ct., 206. In the case of the Commonwealth v. Chauncey, 2 Ashmead, page 90 (Murder) "In the endorsement of a plea of not guilty,' on an indictment as having been pleaded on the 2d of January, 1838, at A motion to quash an indictment for formal defect was overruled. Held, that if a defect existed, it was amendable in the Court below or the Supreme Court, and was no ground for reversal. Davis v. Commonwealth, 4 Cent., 711. The defendant having gone on trial on a defective complaint, cannot now take advantage of the defect by a motion in arrest of judgment. Commonwealth 2. Mackay, 58 N. E., 1027. Time is not material, it does not necessitate that the day laid was the day proved, the presumption being, after verdict of guilty, that the evidence was such both in weight and character as authorize a conviction. Benson v. Commonwealth, 33 N. E., 384. An objection to an indictment for a formal defect apparent on the face thereof, does not affect the jurisdiction of the Court, upon a motion in arrest of judgment, after a plea of guilty. Commonwealth v. Sara Cluoraro, 129 Mass., 489. The United States courts hold that time is not of the essence of the offence. Ledbetter v. U. S., 132 Fed., 325. There are some cases holding that where the laying of the date after the finding of the indictment is apparently a clerical error, it may be rejected and the date is not fatal. 22 Cyc., 316. State v. Patterson, 116 Ind., 45. The allegation of time in an indictment is not material, except where the indictment may be barred by the statute, or the time is the essential ingredient of the offense. Hubbard v. State, 7 Ind., 160. In a criminal case a variation in proof as to time is immaterial where time is not an essential ingredient of the offense. It is not necessary, however, except where time enters into the nature of the offense, to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the | fendant-the Commonwealth applied for indictment and within the period prescribed by the statute of limitations. Commonwealth v. Powell, 23 Pa. Sup. Ct., 370. Commonwealth v. Major, 198 Pa. St., 290. leave to amend the indictment nunc pro tunc, so that it should read, "On the thirty-first day of October, in the year of our Lord one thousand nine hundred and thirteen." The Court permitted the amendment to be made, against the ob July 11, 1914. Opinion by LANDIS,jection of the defendant. Of course, if P. J. The defendant, Rocco Tassone, was indicted as a principal for the murder of one, Toney Collata, and, upon a trial duly had, was convicted of murder in the first degree. His counsel filed reasons for a new trial, and also moved in arrest of judgment; but the application for a new trial is not now insisted upon, and the case is rested upon the last-named motion. The importance of the question raised, owing to the gravity of the crime charged, demands at our hands serious consideration. The complaint against the accused averred that "Rocco Tassone and Vincenzo Carraccisls unlawfully and feloniously shot with a revolver and feloniously killed Tony Collata. . . on Friday, the 31 day of November, A. D. one thousand nine hundred and thirteen," and the indictment which followed the complaint charged that "Rocco Tassone, ... on the thirty-first day of October, in the year of our Lord one thousand nine hundred and fourteen, . . . in and upon the body of one Toney Collata, . . . did make an assault, and him. . . did kill and murder." It, therefore, appears that the complaint charged the offense as having been committed on the 31st day of November, 1913, whereas there were, of course, only thirty days in the month of November, 1913; and the indictment alleged that the murder was committed on the 31st day of October, 1914, or almost six months after the time of the trial. These are the defects for which counsel for the defendant insists the judgment should be arrested. That mistakes were made, both in the complaint and the indictment, is obvious, and the question which now arises is, Are they fundamental? In this connection, it is proper to state that, on May 23, 1914after the trial and conviction of the de was not in its power at that time to make such an amendment, the fact that it was done adds no strength to the Commonwealth's case. If, however, such power existed, it was right and proper that the record should be made to conform to the actual facts appearing upon the trial. Let us, then, first inquire as to whether or not we had authority to make the amendment nunc pro tunc. The Act of March 31, 1860, P. L. 433, section II, declares that "every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the Act of Assembly prohibiting the crime and prescribing the punishment, if any such there be, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury. Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterward; and every Court, before whom any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, by the clerk or other officer of the Court, and thereupon the trial shall proceed as if no such defect appeared." By the 13th section of the same Act, it is also provided that, “if, on the trial of any indictment for felony or misdemeanor, there shall appear to be any variance between the statement of such indictment and the evidence offered in proof thereof, in the name of any place mentioned or described in any such indictment, or in the name or description of any person or persons or body politic or corporation therein stated, or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offense charged therein, or the name or de- ment for unlawfully selling liquor was scription of any person or persons, body found, leaving a blank for the name of politic or corporate therein stated or the person to whom the liquor was sold. alleged to be injured or damaged, or in- On the trial, after a witness had been tended to be injured or damaged, by the examined, the Court allowed a name to commission of such offense, or in the be inserted. It was held that the indictchristian name or surname, or both ment, after the insertion, stood as if it christian and surname, or other descrip- had been found with the name in it. tion whatsoever of any person or persons The learned Judge said: "Thus a sound whomsoever therein named or described, discretion must be exercised by the Court or in the name or description of any in each case upon its circumstances. . . . matter or thing whatsoever therein It was in the power of the defendant, named or described, or in the ownership before the jury was sworn, to move to of any property named or described quash the indictment, on the ground that therein, it shall and may be lawful for a blank had been left in a material part the Court before whom the trial shall be of it. The Court could then have taken had, if it shall consider such variance care of the interests of the public by not material to the merits of the case, sending back the indictment to the grand and that the defendant cannot be preju- jury, if in session, for amendment; or, diced thereby in his defense upon such if not, could have held the defendant to merits, to order such indictment to be answer a fresh indictment. But after amended, according to the proof, by some going on to trial, when the jury could officer of the Court, both in that part not be safely discharged, the power to of the indictment wherein said variance amend comes in aid of justice, to preoccurs, and in every other part of the vent a failure." In Brown v. Commonindictment in which it may become neces- wealth, 78 Pa., 122, which was an insary to amend; and, after such amend- dictment for murder, the indictment was ment, the trial shall proceed in the same not certified into the Court of Oyer and manner, in all respects, and with the Terminer, but was tried in the Court of same consequences, as if no variance Quarter Sessions. It was held that, after had occurred." In discussing this stat- trial, conviction, sentence and writ of ute, Agnew, J., in Commonwealth v. error, the indictment might be certified Keenan and Clark, 67 Pa., 203, said: over nunc pro tunc. Agnew, C. J., in "The strictness of criminal pleading has delivering the opinion of the Court, said: found its greatest rigor and its highest "The prisoner was tried before Judges reason in a country where, in the time having jurisdiction of his crime, by a when Sir William Blackstone wrote, one jury duly selected and empaneled, on hundred and sixty offenses were pun- an indictment found by a grand jury ishable with death. Humane judges having power to inquire of the offense, would catch at any slip when a life was in a Court having jurisdiction of the into be saved. But in this state, where but quiry; and the indictment being, in fact, a single crime is capital, and where the sent into and in possession of the Oyer whole criminal code is administered in and Terminer, and sufficient and regular mildness and mercy, there is no such in charging the offense. Both Courts reason for strictness of pleading." In In are held by the same Judges, and a single Rough v. Commonwealth, 78 Pa., 495, clerk fills the office of clerk in each. the same Judge, in passing upon an ap- Why, then, should it be deemed a stretch plication for an allocatur, said: "The of power to make the amendment, even purpose of the revisers of the criminal after error brought? . . . Where the code was to prevent a failure of justice Court has the power, and exercises it through too rigid an adherence to forms. properly, this Court will not inquire into The 13th section is a most necessary and the state of the record before the return useful provision to this end, and ought of the writ, but will look only at its connot to be frittered away by unfriendly dition, when returned in obedience to the interpretation." In that case, an indict-writ. If, then, it appears to be regular, its previous condition will be disregarded. | by the counsel for the Commonwealth, Our province is not to look for errors merely to reverse, but to look for merits in the cause of reversal; and when we find the Court below has done no more than it could rightly do, and when what it did infringes no right or substantial interest of the prisoner, we ought not to send back for a re-trial a cause fully, fairly and justly determined." 66 to which may be added 1 Chitty's Criminal Law, 217." In Wharton's Criminal Pleading and Practice, sec. 120, 9th ed., it is said: "Where there is a statute authorizing amendments of formal errors, and there is no constitutional impediment, dates when formal may be amended." If, then, the error in the date of the indictment in this case can be considered as formal, it seems to us to follow that it was amendable. If it was amendable on the trial, we think it could be, with equal authority, amended afterwards nunc pro tunc, so as to conform to the issue then tried. Was, then, the mistake a matter of form? In 21 Cyc., 870, it is said that, "as a general rule, a variance as to the time of the offense is immaterial in case it is shown to have occurred prior to the finding of the indictment and within the period prescribed by the statutes of limitations, in some jurisdictions this rule being statutory." In United States "'. Howard, 132 Fed. Rep., 325, where the offense was alleged to have been committed "on the day of December, In Myers v. Commonwealth, 79 Pa., 308, which was also a homicide case, an amendment changing the time laid in the indictment from October, 1874, to November, 1874, was made after the jury was sworn. The Court said: The amendment fell clearly within this power (referring to the 11th, 12th and 13th sections of the Act of 1860), which is strengthened by the large powers of amendment intended to be conferred by the sections stated." In Davis v. Commonwealth, 4 Cent. Rep., 711, where an indictment for adultery did not set forth the name of the wife, our Supreme Court, after holding that it was sufficient, said: "And without this, if it be admitted that the omission was a defect, it was but formal, and might, therefore, have been amended in the Court below, or might be so amended even here now in this Court." In Jacobs v. Commonwealth, 5 S. & R., 315, Gibson, J., said: "It is absolutely necessary that a day Icertain be laid. But although certainty of time be material in a legal point of view, it cannot be pretended that it is of much practical consequence to the prisoner, either in giving notice of the specific charge alleged against him, or in aiding him to defend himself against it; for the prosecutor may give evidence of an offense committed on any other day" in a criminal case, a variation in proof previous to the finding of the indictment, and on the plea of autre fois acquit the defendant is usually under the necessity of proving the identity of the offense charged in each indictment by evidence dehors the record. I am, therefore, well disposed to get over an objection of this scrt whenever I can. Here the day may be rendered certain by reference to the year stated in the caption. That this renders the indictment sufficient in this respect is proved by the authorities cited 1893," it was held that the date, not being of the essence of the offense, but one of form only, it was cured by the statute. In State v. Patterson (Ind.), 18 N. E. Rep., 270, an indictment for illegal voting was returned on November 3, 1886, which charged the offense as having been committed on November 4, 1886. It was held that this portion of the indictment had relation to a past offense, and that time not being of the essence of the offense, the indictment must be upheld. In Commonwealth Powell, 23 Sup., 370, it was held that, as to time is immaterial where time is not an essential ingredient of the offense. It is not necessary, however, except where time enters into the nature of the offense, to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the indictment and within the period prescribed by the statute of limitations." In Commonwealth . Major, 198 Pa., 290, the indictment charged the defendant with having killed one, McGrath, on |