There are certain terms of art used, so appropriated by the law to express the pre cise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of filling the same office: such, for example, as traitor ously (q. v.), in treason ; feloniously (q. v.), in felony ; Kaelin v. Com., 84 Ky. 354, 1 S. W. 594; State v. Bryan, 112 N. C. 848, 16 S. E. 909 ; State v. Hang Tong, 115 Mo. 389, 22 S. W. 381; burglariously (q. v.), in burglary ; maim (q. v.), in mayhem, etc.
Seventh, the conclusion of the indictment should conform to the provision of the con stitution of the state on the subject, where there is such provision; as in Pennsylvania ; Const. art. 5, s. 11, which provides that all "prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude against the peace and dignity of the same"; see State v. McClung, 35 W. Va. 280, 13 S. E. 654 ; it is not necessary that each count should so con clude; Stebbins v. State, 31 Tex. Cr. R. 294, 20 S. W. 552. As to the necessity and pro priety of having several counts in an indict ment, see 1 Chitty, Cr. Law 248; Steph. Cr. Proc. 153 ; COUNT; as to joinder of several offences in the same indictment, see 1 Chitty, Cr. Law 253 ; Archb. Cr. Pl. 60 ; in one count, see 9 L. R. A. 182, note. A count in an indictment may refer to allegations in other counts to avoid repetition ; People v. Graves, 5 Park. Cr. R. (N. Y.) 134 ; People v. Danihy, 63 Hun 579, 18 N. Y. Supp. 467; Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725. Several defendants may, in some cases, be joined in the same indict ment ; Archb. Cr. Pl. 59 ; as where one is charged with assault with intent to kill, and another as accessory before the fact ; State v. Lang, 65 N. H. 284, 23 Atl. 432 ; Com. v. Devine, 155 Mass. 224, 29 N. E. 515.
At common law au indictment cannot be amended by the court. It was said by Lord Mansfield in Rex v. Wilkes: "Indictments are found upon the oaths of a jury, and ought only to be amended by themselves ;" 4 Burr. 2527. The rule has been continuous ly adhered to ; Hawk. P. C. b. 2, c. 25, § 97: Stark. Cr. Pl. 287; Whart. Cr. PL & Pr. § 90 ; Com. v. Drew, 3 Cush. (Mass.) 279 ; State
v. Sexton, 10 N. C. 184, 14 Am. Dec. 584. "It is a well-settled rule of law that the statute respecting amendments does not extend to indictment ;" Shaw, C. J., in Com. v. Child, 13 Pick. (Mass.) 200 ; and "an amendment cannot be allowed even with the consent of the prisouer"; Corn. v. Mahar, 16 Pick. (Mass.) 120; People v. Campbell, 4 Park. Cr. R. (N. Y.) 387. The caption, however, may be amended, being, as it is said, no part of the indictment itself ; State v. Williams, 2 McCord (S. C.) 301; State v. Society, 42 N. J. L. 504 ; Allen v. State, 5 Wis. 337.
In England the rule forbidding an amend ment of an indictment has been changed by stat. 14 and 15 Viet. c. 100. In this country the subject does not rest on the common law, but there is also to be considered the con stitutional guaranty to an accused of a trial, "on a presentment or indictment by a grand jury." It was settled by the United States supreme court that in the federal courts an indictment cannot be amended by the court, bath by reason of the common-law rule and the constitutional provision ; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849. The question whether the rule could be changed by statute was not actually involv ed, but it would seem to be settled in the neg ative by the reasoning of the opinion in that case. The question had been considered in some state courts, and it has been held that without amendment of the state constitution, the legislature may authorize amendment of indictments by the court, not changing the offence ; Miller v. State, 53 Miss. 403 ; in other cases it was held that the legislature might dispense with or regulate matter of form ; Brown v. People, 29 Mich. 232 ; State v. O'Flaherty, 7 Nev. 157; but they could not "dispense with such allegations as are essential to reasonable particularity and cer tainty in the descriRtiou of the offence; Mc Laughin v. State, 45 Ind. 338.
It is said by Bishop that "if a statute should authorize a material amendment to be made in an indictment for an offence which, by the constitution of the state was punishable only by indictment, the statutory direction would be a nullity." Bish. Cr. Proc., 2d ed. § 97; 26 Am. L. Reg. N. S. 446.