State v. Ah Sam

By tlie Court, Prim, J.: "We think the court erred in this instruction. It is true that a crime may be charged to have been committed on one day and proved to haye been committed on another. But that principle we apprehend is not applicable in this case. Here the crime was alleged to have been committed on the fifth day of November, 1877; and any other day might have been shown by the testimony, because the day on which the oath was administered was not of the essence of the crime. But the variance is one which totally changes the statement of the witness complained of from the statement alleged to be false to a statement, the truth of which is neither charged nor proven to be untrue. The judgment is reversed and a new trial ordered.