
    THE QUEEN vs. J. E. BUSH.
    Exceptions to Bulings oe Dole, J.
    Hearing, July 16, 1891.
    Decision, July 24, 1891.
    Judd, C.J., Bickerton and Dole, JJ. McCully, J., Absent.
    The Court ordered an amendment t<5 be made to an indictment, it having been found to be insufficient.
    Held, that the Court, under Section 33 of the Act to regulate the practice and procedure in criminal cases, has authority to order the amendment, and is not limited by the statute as to the character of the amendment.
   Opinion oe the Court, by

Bickerton, J.

Defendant demurred to the sufficiency of the indictment and the demurrer was sustained, and the Court, under Section 33 of the Criminal Practice Act, ordered an amendment to be inserted, which was done accordingly by the Clerk. Defendant’s counsel objected to the anendment, and demurred to the jurisdiction of the Court to make or order the said amendment. The Court overruled the same, and defendant’s counsel notes exception, and the matter is now before us on a bill of exceptions duly allowed by Mr. Justice Dole, the Presiding Justice.

Section 38 of the Act to regulate the practice and procedure in criminal cases, page 347, Compiled Laws, is as follows: “Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer or motion to quash such indictment before the accused has pleaded and not after-wards; and every court before which any such objection shall be taken for any such defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court, or other person, and thereupon the trial shall proceed as if no such defect had appeared; and no motion in arrest of judgment shall be allowed for any defect in any indictment which might have been taken advantage of by demurrer or motion to quash as aforesaid.”

It is clear to us that the intention and object of this law was to obviate the necessity of a second indictment, in case one should be quashed on demurrer. The result in this case, should. the indictment be quashed, could only be the presenting of a new indictment containing the amendment ordered by the Court. The words, “if it be thought necessary,” which we find in the section, mean more than at first sight would indicate. They can only mean that where an objection is taken to an indictment for any defect in it, it is within the authority of the Court to order an amendment so as to make the indictment good and sufficient, and then only when the Court may think necessary; the authority of the Court is not limited by the statute as to the character of the amendment. The authority of the Court to order such an amendment was settled in the case of Rex vs. Ho Fon, 7 Hawn., 757. In that case the Court found the indictment to be insufficient and one that the defendant was not called upon to answer; and say, “But we will not order judgment to be entered in his favor, as under Section 33 of the Act to regulate the practice and procedure in criminal cases we have authority to cause the indictment to be amended,” which was done.

Attorney-General Whiting, for the prosecution.

Ashford & Ashford, for defendant.

The exceptions are overruled.  