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lawyers have this series of reports, which were useful at first and intolerable at last, and probably they will be glad to have a digest of them to save turning over so many tedious volumes. Those who have not the series may well compromise by buying the digest which seems well constructed.

At the second annual meeting of the American Economic Association, held this week at Boston and Cambridge, Prof. E. J. James was announced to read a paper on "Agitation for Federal Regulation of the Railways; " Dr. E. R. A. Seligman on “Long and Short Haul Clauses of the Federal Railway Law," and Mr. Simon Sterne on "Some Curious Phases of the Railway Question in Europe." This society would do well to turn its attention to our patent system and the monstrous abuses in it.

The report of the proceedings of the Bar Association of Tennessee, at the fifth annual meeting in July, 1886, contains discussions, reports and papers of considerable interest. We shall print next week some extracts from a paper by Judge Rose, of Arkansas, on Codification, which give an excellent, concise history of modern codes. There were also papers on Retrospective Decisions, by Joseph B. Heiskell; Removal of the Wife's Disabilities, by W. A. Percy, Jr.; the Proper Relation of the State to its Municipal Institutions, by H. M. Wiltsie; the Railroad Express Business, by R. J. Morgan. Two recommendations of the committee on judicial administration strike us as very much needed, namely, the requirement of security on appeal to stay execution, and that briefs in the Supreme Court should be printed. The Tennessee lawyers seem not to have a high opinion of the Legislatures of that State.

We would gladly lend them ours.

The tenth annual report of the New York State Bar Association is at hand, prepared in a very creditable manner by Mr. L. B. Proctor, the efficient secretary. The volume contains the constitution, by-laws, lists of officers and members, and the proceedings of the last annual meeting, a meeting of exceptional interest. It includes the address of Governor Hill, the president; Mr. Hitchcock's annual address; that by Mr. Field, and that by Mr. Hale, all of which we remarked upon or published at the time; and in addition, Mr. Moak's thesis on Expert Testimony, and Mr. Becker's on Boycotting, and Mr. LeRoy Parker's prize essay on the Laws of Divorce, all of which are addressed to topics of lively interest, and are exceedingly well handled. It also includes the toasts and responses at the supper, several of which are brilliant and wise. Copies of the volume can be procured by addressing Mr. Proctor, at the Capitol.

NOTES OF CASES.

Senior v. Ratterman, Ohio Supreme Court,

I Marcia 1, 1997, was held that law

a discrimination may be made between wholesale and retail dealers. The court said: "The second proposition of plaintiffs' counsel implies that section 2 of article 12 of the Constitution affords a limitation upon that power, and that the provisions of the statute in question as to wholesale dealers are in violation of that section, because while the section requires that laws shall be passed taxing property by a uniform rule, this law, so far as wholesale dealers are concerned, is for revenue only, and unjustly discriminates between the wholesale dealer and the manufacturer, and between the wholesale dealer as to his property and the holder of other kinds of property, inasmuch as the former is required to pay a tax under this law, and general taxes under the general law in addition. To this it may be answered that the law does not purport to be for revenue, but to provide against evils, and to construe it as a revenue law it must be shown that there are no evils incident to the wholesale traffic, and in contemplation of law, that none can arise a proposition which we think cannot be maintained. The first liquor law enacted under the present Constitution made it an offense to sell intoxicating liquors to a person intoxicated, to one in the habit of becoming intoxicated, or to a minor, and these provisions have been in force ever since. True, the evils here sought to be guarded against sprang chiefly from sales in small quantities. But will any one say that evils are likely to arise from the sale to such a person of a drink of liquor, and none likely to follow the sale to the same person of a gallon? We assume not. And of all evils, and how they may be provided against, the general assembly is, by the Constitution, made the judge. The whole field of choice is left to that body, and so long as it keeps within constitutional limits no supervising power exists in the courts to say that the choice has not been wisely made. This law, as to its taxing features, operates upon a business, and not upon property, within the meaning of the section referred to, and hence is not required to be uniform in its application to all forms of the traffic, or to all classes. We need not enlarge upon this. Nor is the proposition tenable that the law, being of a general nature, is not of uniform operation throughout the State, and for that reason repugnant to section 26 of article 2 of the Constitution. True, the law is of a general nature, and does discriminate between the general dealer and the manufacturer. It requires one to pay, and the other, where the sales are of one gallon and over, is exempted. This implies a division of the two into separate classes, but does not show that because of that fact the law is not of uniform operation. The principle of uniform operation requires simply that the law shall bear equally in its burdens upon persons standing in the same category. A law is uniform in its operation where every person who is brought within the relation and circumstances provided for is alike affected by the law. It must have a uniform operation upon all those included within the class upon which it purports to operate.

It is not claimed that the law does not purport to operate equally upon all wholesalers who are not manufacturers. As between the wholesale dealer

and the manufacturer there is manifestly a real, tangible difference, though they have characteristics in common. The general assembly has chosen to classify and to discriminate accordingly. If the classification is proper the discrimination cannot be objected to. We are not prepared to say that the classification is not warranted. The question, in its general aspects, is fully discussed and disposed of satisfactorily in the opinion in Adler v. Witbeck, 9 N. E. Rep. 672, and we think the argument of the defendant's counsel in this case will be found to amply meet the special. phase of the question presented by the record."

Cases of first impression become rarer and rarer as the reports grow in bulk; but a case for which this character wss claimed, and apparently with good reason, was decided on Monday last, upon an argument heard by Justices Mathew and Cave last sittings. The point in this case (Wilson v. Glossop) was whether, where a husband pleads his wife's adultery in answer to an action for necessaries supplied to his wife after she had been turned out of doors, his connivance in the adultery can be pleaded as an answer to that defense. There is absolutely no direct authority on this knotty point, and in the absence of it the arguments went chiefly to the effect of the same state of facts upon the wife's right to dower, and upon her right to a decree for restitution of conjugal rights. The judgment proceeded mainly upon the last view of the case, on the principle, which seems sound, that if the husband is justified in point of law in turning his wife out of doors he cannot be liable at law for her maintenance. Can then an adulterous wife obtain restitution of conjugal rights where her husband has connived at her adultery? Curiously enough, this point appears to have never been expressly decided in England. The question was however fully discussed and answered in the affirmative in the Irish case of Seaver v. Seaver, 2 Sw. & Tr. 665, and a few years later Sir Cresswell Cresswell, without knowing of this decision, came to the same conclusion in Hope v. Hope, 1 Sw. & Tr. 104. The latter expression however is a dictum not necessary to the decision, the question being as to the effect of the husband's adultery, not his connivance; while Drew v. Drew, 1 Notes of Cases, is decidedly in favor of the husband's contention, though the court refused to recognize it as such in Wilson v. Glossop. The divorce cases therefore do not throw any conclusive light on the question. Turning to the other cases cited we find in Govier v. Hancock, 6 T. R. 603, that a husband is not liable for his wife's maintenance where he has turned her out of doors before her misconduct, and has himself been guilty of cruelty and adultery. On the other hand, a few years later, it was held in Harris v. Morris, 3 Esp. 41, that af

ter condonation of the wife's adultery the husband cannot escape liability for necessaries supplied to her. It is pretty clear that no decision could be quite in harmony with the various principles laid down in all these cases. The court probably did well in being guided mainly by the view of Sir Cresswell Cresswell and the decision in Harris v. Morris, and holding that a husband has no more right to take advantage of misconduct which he has connived at than of that which he has condoned. Whatever view may be taken elsewhere of the legal bearings of the case, there can be no question that this conclusion is the only one conformable to justice and common sense.-Law Times.

In Taylor v. State, Texas Court of Appeals, Dec. 4, 1886, a State's witness having disqualified herself upon her voir dire with regard to her knowledge of the nature and obligation of an oath, the State was permitted to take her to a private office and instruct her thereupon. She was thereupon returned into court, and replying that she then understood the test, was held competent as a witness. Held, that the proceeding was erroneous. The court said: "Mr. Wharton says: When a child is incompetent simply for want of instruction as to the nature of an oath the practice has been to postpone the case, so that the child might in the meanwhile be properly instructed.' Whart. Crim. Ev. (8th ed.), 368, citing Rex v. White, 1 Leach, 430. This was the English practice. As far as known, it has never been adopted in this country. On the contrary, as Judge Lewis says in State v. Scanlan, 58 Mo. 206, such practice has been criticised as like preparing or getting up a witness for a particular purpose. S. C., 1 Am. Crim. Rep. (Hawley)

185. In Indiana, where the witness on a trial for rape was a child only six years old at the time of the trial, and was testifying sixteen months after the alleged offense, the competency of the witness having been challenged, the court examined her, and not being satisfied, appointed two gentlemen, who retired with the child to a private room, and after some time returned and reported to the court, that in their opinion, her testimony ought to be heard, but received with great allowance, whereupon she was allowed to testify over defendant's objections. It was held that for this action of the court the defendant was entitled to a new trial. Simpson v. State, 31 Ind. 90. In Alabama, where the question was 'whether the Circuit Court was authorized to arrive at a conclusion respecting the admission or rejection of an infant witness from a private examination, after a public examination in court had resulted in the exclusion of the witness in consequence of an apparent defect of knowledge with respect to the obligations of an oath, it was held that it is the court, and not the judge as an individual, which is to determine the competency of a witness; and therefore the examination of the competency of the witness must be made at the

trial, and in the presence of the prisoner and his counsel. To admit such a witness upon a private examination by the judge is erroneous. Judge Goldthwaite says: 'It may be objected it is scarcely possible that an infant of such tender years can be capable of satisfactorily answering questions amid the bustle and confusion of a court-house; but certainly the consequences would be alarming if the admission of such a witness might be effected through the medium of a private examination, and more so when one made in public had proved to be unsatisfactory.' State v. Morea, 2 Ala. (N. S.) 275. And so in People v. Welsh, 63 Cal. 167, it is said 'that a defendant in a criminal case is entitled to have the question of the competency of a presumably incompetent witness heard and determined in his presence, and on his trial before the court and jury.' We are clearly of opinion that the procedure here complained of was error."

In Kraxberger v. Roiter, Missouri Supreme Court, March 21, 1887, an action to recover damages for breach of promise of marriage, defendant admitted the engagement to marry and the breach on his part, but relied upon the act of plaintiff in returning to him the engagement ring when he told her he no longer loved her, and would not marry her. Held, that such act did not constitute a waiver or release on plaintiff's part of her right of action for the breach, and the jury should have been peremptorily instructed to find for plaintiff. The court said: "Fully realizing then that she had indeed lost the love that he had once assured her was hers, and upon the faith of which she had engaged herself to him, and that his determination not to marry her was final and conclusive, she takes from her finger the engagement ring once given her as a token of his sincerity and fidelity, now a memento only of his fickleness and treachery, and in her express words, 'gave it up to him,' and went crying from his presence. This, forsooth, is claimed to be evi dence that the plaintiff agreed to rescind the contract, and release the defendant from the obligations thereof. The giving up by plaintiff of her engagement ring, thus wrung from her by the action of the defendant, is to be tortured into an agreement to rescind a contract which the defendant had already refused to perform, and to the performance of which he had interposed an insuperable barrier in the mind of the plaintiff, as it would be in the mind of every true woman, into an agreement to rescind a contract that she was never asked or afforded an opportunity to rescind. The defendant, by his own action, had left her no choice in the matter; nothing that she could do but accept the situation he made for her, abandon all hope of the marriage, give up the symbol of that hope, and seek such compensation in damages as the law could give her for the injury she had suffered, without fault on her part, at the hands of the defendant; and this, the only remedy left her, she seeks in this

case."

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When the indictment is filed no change whatever, however immaterial, may be made in the body of the instrument by the order of the court, or by the prosecuting attorney, without a submission of the case to the grand jury, and a trial on an indictment so changed is void, and the prisoner is entitled to his discharge by writ of habeas corpus.

ON petition for a writ of habeas corpus.

Richard Walke, Leigh R. Page, and W. W. Crump, for petitioner.

Attorney-General Garland and John Catlett Gibson, for respondent.

MILLER, J. This is an application to this court for a writ of habeas corpus to relieve the petitioner, George M. Bain, Jr., form the custody of Thomas W. Scott, United States marshal for the Eastern District of Virginia. The original petition set out with particularity proceedings in the Circuit Court of the United States for that district, in which the petitioner was convicted, under section 5209 of the Revised Statutes, of having made a false report or statement as cashier of the Exchange National Bank of Norfolk, Virginia. The petition has annexed to it as an exhibit all the proceedings, so far as they are necessary in the case, from the order for the impanelling of a grand jury to the final judgment of the court sentencing the prisoner to imprisonment for five years in the Albany penitentiary. Upon this application the court directed a rule to be served upon the marshal to show cause why the writ should not issue, to which that officer made the following return: “ Comes the said Scott, as marshal aforesaid, and states that there is no sufficient showing made by the said Bain that he is illegally held and confined in the custody of respondent; but on the contrary, his confinement is under the judgment and sentence of a court having competent jurisdiction to indict and try him, and he should not be released; and respondent prays the judgment of this court, that the rule entered herein against him be discharged, and the prayer of the petition be denied." The attorney-general of the United States and the district attorney for the Eastern district of Virginia appeared in opposition to the motion, and thus the merits of the case were fully presented upon the application for the issue of the

writ.

Upon principles which may be considered to be well settled in this court, it can have no right to issue this writ as a means of reviewing the judgment of the Circuit Court simply upon the ground of error in its proceedings; but if it shall appear that the court had

no jurisdiction to render the judgment which it gave, and under which the petitioner is held a prisoner, it is within the power and it will be the duty of this court to order his discharge. The jurisdiction of that court is denied in this case upon two principal grounds. *7 Supreme Court Reporter, 781.

The first of these relates to matters connected with the empanelling of the grand jury, and its competency to find the indictment under which the petitioner was convicted; the second refers to a change made in the indictment, after it was found, by striking out some words in it, and then proceeding to try the prisoner on the indictment as thus changed. We will proceed to examine the latter ground first.

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Section 5209 of the Revised Statutes of the United States, under which this indictment is found, reads as follows: Every president, director, cashier, teller, clerk or agent of any association, who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk or agent in any violation of this section-shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." Section 5211 requires every banking association organized under this act of Congress to "make to the comptroller of the currency not less than five reports during each year, verified by the oath or affirmation of the president or cashier of such association, and attested by the signatures of at least three of the directors."

The indictment in this case, which contains but a single count, and is very long, sets out one of these reports, made on the 17th day of March, 1885, by the petitioner, as cashier, and Charles E. Jenkins, John B. Whitehead and Orlando Windsor, as directors, of the Exchange National Bank of Norfolk, a national banking association. The indictment also points out numerous false statements in this report, which it is alleged in the early part of it were made "with intent to injure and defraud the said association, and other companies, bodies politic and corporate, and individual persons to the jurors aforesaid unknown, and with the intent then and there to deceive any agent appointed by the comptroller of the currency to examine the affairs of said association." Following this allegation came the specifications of the particulars in which the report is false, and the concluding part charges that the defendants, "and each of them, did then and there well know and believe the said report and statement to be false to the extent and in the mode and manner above set forth; and that they, and each of theu, made said false statement and report in manner and form as above set forth with intent to deceive the comptroller of the currency and the agent appointed to examine the affairs of the said association, and to injure, deceive and defraud the United States and said association and the depositors thereof and other banks and national banking associations, and divers other persons and associations to the jurors aforesaid unknown, against the peace of the United States and their dignity, and contrary to the form of the statute of the said United States in such case made and provided." The defendants, having been permitted to withdraw the plea of not guilty which they had entered, were then allowed to demur to the indictment, and as it is important to be accurate in stating what was done about this demurrer, the transcript of the record on that subject is here inserted:

"United States v. George M. Bain, Jr., John B. Whitehead, Orlando Windsor and C. E. Jenkins. "Indictment for making false entries, etc. "This day came the parties, by their attorneys, pursuant to the adjournment order entered herein on the 13th day of November, 1886, and thereupon the defendants, by their counsel, asked leave to withdraw the pleas heretofore entered; which being granted, they submitted their demurrer to the indictment, which after argument was sustained; and thereupon, on motion of the United States by counsel, the court orders that the indictment be amended by striking out the words 'the comptroller of the currency and,' therein contained. Thereupon on motion of John B. Whitehead and C. E. Jenkins, by their counsel, for a severance of trial, it was ordered by the court that the case be so severed that George M. Bain, Jr., cashier and director, be tried separately from John B. Whitehead, Orlando Windsor and C. E. Jenkins, directors. Thereupon the trial of George M. Bain, Jr., was taken up, and the said defendant, George M. Bain, Jr., entered his plea of not guilty."

This was done December 13, 1886, thirteen months after the presentment of the indictment by the grand jury, and probably long after it had been discharged. A verdict of guilty was found against Bain, a motion for a new trial was made, and then a motion in arrest of judgment, both of which were overruled. The opinion of the Circuit judge on the question which we are about to consider, delivered in overruling that motion, is found in the record.

The proposition that in the courts of the United States any part of the body of an indictment can be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being resubmitted to them for their approval, is one requiring serious consideration. Whatever judicial precedents there may have been for such action in other courts, we are at once confronted with the fifth of those articles of amendment, adopted early after the Constitution itself was formed, and which were manifestly intended mainly for the security of personal rights. This article begins its enumeration of these rights by declaring that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," except in a class of cases of which this is not one. We are thus not left to the requirements of the common law in regard to the necessity of a grand jury or a trial jury, but there is the positive and restrictive language of the great fundamental instrument by which the national government is organized, that "no person shall be held to answer" for such a crime "unless on a presentment or indictment of a grand jury." But even at common law it is beyond question that in the English courts indictments could not be amended. The authorities on this subject are numerous and unambiguous. In the great case of Rex v. Wilkes, 4 Burrow, 2527, tried in 1770, which attracted an immense deal of public attention, Wilkes, after being convicted by a jury of having printed and caused to be published a seditious and scandalous libel, was brought up before the Court of King's Bench, on a motion to set aside the verdict, on the ground that an amendment had been made in the language of the information on which he was tried. In the course of an opinion delivered by Lord Mansfield overruling the motion, he remarks on this subject (p. 2569) that "there is a great difference between amending indictments and amending informations. Indictments are found upon the oaths of a jury, and ought only to be amended by themselves; but informations are as declarations in the king's suit. An officer of the crown has the right of framing them originally; he may,

with leave, amend in like manner as any plaintiff may do." Mr. Justice Yates, on the same occasion, said that indictments, being upon oath, cannot be

amended.

And

Hawkins, in his Pleas of the Crown, bk. 2, ch. 25, § 97, says: "I take it to be settled that no criminal prosecution is within the benefit of any of the statutes of amendments; from whence it follows that no amendment can be admitted in any such prosecution but such only as is allowed by the common law. agreeably hereto I find it laid down as a principle in some books that the body of an indictment removed into the King's Bench from any inferior court whatsoever, except only those of London, can in no case be amended. But it is said that the body of an indictment from London may be amended, because by the city charter a tenor of the record can only be removed from thence." He further says in section 98: "It seems to have been anciently the common practice, where an indictment appeared to be insufficient, either for its uncertainty or the want of proper legal words, not to put the defendant to answer it; but if it were found in the same county in which the court sat, to award process against the grand jury to come into court and amend it. And it seems to be the common practice at this day, while the grand jury who found the bill is before the court, to amend it by their consent, in a matter of form, as the name or addition of the party."

This language is repeated in Starkie Crim. Pl. 287. There are however several cases in which it has been decided that the caption of an indictment may be amended, and we therefore give here the language of Starkie (p. 258) as describing what is meant by the phrase "caption of an indictment." "When an inferior court," he says, "in obedience to a writ of certiorari from the King's Bench, transmits the indictment to the crown office, it is accompanied with a formal history of the proceeding, describing the court before which the indictment was found, the jurors by whom it was found, and the time and place where it was found. This instrument, termed a schedule, is annexed to the indictment, and both are sent to the crown office. The history of the proceedings, as copied or extracted from the schedule, is called the caption, and is entered of record immediately before the indictment." It will be seen that as thus explained, the caption is no part of the instrument found by the grand jury.

Wharton, in his work on Criminal Pleading and Practice, § 90, says: "No inconsiderable portion of the difficulties in the way of the criminal pleader at common law has been removed in England by 7 Geo. IV, ch. 64, $$ 20, 21; 11 & 12 Vict., ch. 46, and 14 & 15 id. ch. 100; and in most of the States of the American Union by statutes containing similar provisions." He also cites cases in the English courts, where amendments have been made under those statutes, but they can have no force as authority in this country, even if they permitted such amendments as the one under consideration.

No authority has been cited to us in the American courts which sustains the right of a court to amend any part of the body of an indictment without reassembling the grand jury, unless by virtue of a stat

ute.

On the contrary, in the case of Com. v. Child, 13 Pick. 200, Chief Justice Shaw says: "It is a wellsettled rule of law that the statute respecting amendments does not extend to indictments; that a defective indictment cannot be aided by a verdict; and that an indictment bad on demurrer must be held insufficient upon a motion in arrest of judgment."

In the case of Com. v. Mahar, 16 Pick. 120, the court having held, upon the arraignment of the defendant, that the indictment was defective, the attorney-gen

eral moved to amend it, and the prisoner's counsel consented that the name of William Hayden, as the owner of the house in which the offense had been committed, should be inserted, not intending however to admit that Hayden was in fact the owner. "But the court were of opinion that this was a case in which an amendment could not be allowed, even with the consent of the prisoner.

In the case of Com. v. Drew, 3 Cush. 279, Chief Justice Shaw said: "Where it is found that there is some mistake in an indictment, as a wrong name or addition, or the like, and the grand jury can be again appealed to, as there can be no amendment of an indictment by the court, the proper course is for the grand jury to return a new indictment, avoiding the defects of the first."

In the case of State v. Sexton, 3 Hawk. 184, the Supreme Court of that State said: "It is a familiar rule that the indictment should state that the defendant committed the offense on a specific day and year, but it is unnecessary to prove, in any case, the precise day and year, except where the time enters into the nature of the offense. But if the indictment lay the offense to have been committed on an impossible day, or on a future day, the objection is as fatal as if no time at all had been inserted. Nor are indictments within the operation of the statutes of jeofails, and cannot therefore be amended. Being the finding of a jury upon oath, the court cannot amend without the concurrence of the grand jury by whom the bill is found. These rules are too plain to require authority, and show that the judgment of the court was right, and must be affirmed." It will be perceived that the amendment in that case had reference to a matter which the law did not require to be proved, as it was alleged, and which to that extent was not material. The same proposition was held in the New York Court of General Sessions, in the case of People v. Campbell, 4 Parker, 387, where it was laid down that the averments in an indictment could not be changed, even by consent of the defendant.

The learned judge who presided in the Circuit Court at the time the change was made in this indictment, says that the court allowed the words, "comptroller of the currency and," to be stricken out as surplusage, and required the defendant to plead to the indictment as it then read. The opinion which he rendered on the motion in arrest of judgment, referring to this branch of the case, rests the validity of the court's action in permitting the change in the indictment upon the ground that the words stricken out were surplusage, and were not at all material to it, and that no injury was done to the prisoner by allowing such change to be made. He goes on to argue that the grand jury would have found the indictment without this language. But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and es pecially upon all its language found in the charging part of that instrument. While it may seem to the court, with its better instructed mind in regard to what the statute requires to be found as to the intent to deceive, that it was neither necessary nor reasonable that the grand jury should attach importance to the fact that it was the comptroller who was to be deceived, yet it is not impossible nor very improbable that the grand jury looked mainly to that officer as the party whom the prisoner intended to deceive by a report which was made upon his requisition and returned directly to him. As we have already seen, the statute requires these reports to be made to the comptroller at least five times a year, and the averment of the indictment is that this report was made and returned to that officer in response to his requisition for it. How can the court say that there may not have

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