Page:Harvard Law Review Volume 10.djvu/129

IMPROVEMENT IN CRIMINAL PLEADING. 103 this and subsequent acts have been satisfactory. It is interesting to note the preamble to the act: — "Whereas offenders frequently escape conviction on their trials by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case ; and whereas such technical strictness may safely be relaxed in many instances, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence ; and whereas a failure of justice often takes place on the trial of persons charged with felony or misdemeanor by reason of variances between the statement in the indictment on which the trial is had and proof of names, dates, matters, and circumstances therein mentioned, not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced in his defence j be it therefore enacted," etc. Many of the evils removed by this statute in England exist with us to-day. Guilty persons are acquitted in consequence of the lack of proper and reasonable rules of law in this regard. The extent of this failure of justice is not easily ascertained. Our published reports show only the cases wherein the justices presiding at the trials have ruled in favor of the Commonwealth. They do not show the cases wherein the rulings have been favorable to the accused. Hence many cases in which the prosecution has been delayed or defeated on account of some technical defect or error not going to the merits of the case are not known to the public. That is to say, the reasons for the delay or failure are not known. The public finds fault somewhat blindly, but after all justly. For it is a public misfortune when a guilty person escapes punishment through a mere technicality. Legislation alone can cure these evils. Some statutes in this direction have already been enacted. These have done good, but they are not comprehensive enough. We have seen that the pleaders, through fear of possible failure, were led to perpetuate the redundancy of some of the ancient forms, — a redundancy nor required by the law, — and have noted the confusion which arose therefrom. We have also seen the harm resulting from the actual requirements of the common law. It now remains to consider the constitutional objections. Article XII. of the Declaration of Rights has seemed to be an obstacle in the way of further reform. It is believed, however, that the obstacle is seeming rather than real, and also that a brief examination of this subject matter will show that the objection to 14