Fulford v. State , 50 Ga. 591 ( 1874 )

Trippe, Judge.

The indictment in this case not only charged the defendant, as principal in the second degree, in being present, aiding and abetting the chief perpetrator of the alleged offense, but proceeded further and specified the acts whereby the aiding and abetting were done. The/ prosecuting counsel, on motion, struck these descriptive averments from the indictment, over the objection of defendant.

We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? Or, rather, when do averments which might have been omitted become material — or, at least, so enter into the indictment as framed that they cannot, be stricken or rejected as surplus-age? Starkie on Evidence, volume 3, page 1539, says it is a most general rule that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected; and on page 1542, same volume, makes it more specific by restating the rule thus: “ The position that descriptive averments cannot be rejected, extends to all allegations which operate by way of description or limitation of that which is material.” Bishop says: “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other:” 1 Bishop’s C. P., secs. 234, 235. If the prosecutor state the offense with unnecessary particularity, he will be bound by that statement, and must prove it as laid: United States vs. Brown, 3 McLean R., 233; Rex vs. Dawlin, 5 T. R., 311.

In the case in 3 McLean, the indictment charged the postmaster with stealing a letter containing certain bank notes. It was held that the averment as to the bank notes might heve been omitted and an offense was charged without those words, but being in, they must be proved. So in United States vs. Porter, 3 Day, 233, the charge was stopping the mail with an averment of a contract between the Postmaster General and the carrier. Though this averment was not necessary to the indictment, it was adjudged that it must be proved. In The State vs. Copp, 15 New Hampshire, 212, the defendant was indicted for resisting the sheriff legally appointed and duly qualified. Although the appointment and qualification might have been omitted, it was held that it was necessary to establish them by testimony. Where the statute made it penal to sell spirituous or intoxicating liquors, and the charge was the selling of spirituous and intoxicating, the prosecutor was bound to show the liquor to be both spirituous and intoxicating: 4 Gray, 18; see Commonwealth vs. Varny, 10 Cush., 402; Commonwealth vs. Butcher, 4 Grattan, 544; United States vs. Keen, 1 McLean, 429.

These decisions agree with the rule as quoted from Bishop and Starkie. The confusion that grows out of applying it may be avoided by observing the qualification of it or rather the statement of another rule given by Bishop, Chitty and Phillips. Chitty (1 Criminal Law, 294, 295,) says: if any unnecessary averments disconnected with the circumstances which constitute the slated crime be introduced, they need not be proved but may be rejected as surplusage. See, also, 1 Chancery Pleadings, 263. Bishop and Phillips state this rule to be, if the entire averment may be omitted of which the descriptive matter is a part, or can be rejected as surplusage, then the descriptive matter falls with it and need not be proved: Phillips’ Evidence, (eighth edition,) 854; 1 Bishop Criminal Proceedings, section 235. Or, as it is putin 3 McLean, supra, if the averment be mere facts disconnected with the offense, they need not be proved. See, also, on this distinction in the rule, 15 New Hampshire, 212.

These authorities show the line between material and immaterial averments, and where those which might have been omitted when once introduced become an important part of the indictment, and cannot be rejected as surplusage or stricken out, but must be proved. And there is reason and justice in the distinction. Take this case. It was not necessary that tiie pleader should have stated the acts of the defendant which constituted his “aiding and abetting,” or to define how it was done. The “aiding and abetting” was an essential averment. The defendant was charged with so doing “by pushing, striking, assaulting and threatening the said J. A. Conway.” He was put on notice that it would be proved on him that he did these things. He proposes to meet the charge and to show that he did not push, strike, assault or threaten the said Conway. The aiding and abetting may be made out by proving many other ways in which it may be done, totally foreign to those set forth in the indictment. The prosecution knowing this, proposes to strike out all these descriptive averments and leave an open field for any and all proof of any and all forms or ways in which the aiding and abetting may be shown. This would be permitting a defendant to be called upon to meet a charge specifically made in one form and then to allow him to be convicted by a change of the indictment on proof of acts totally distinct from those of which he was notified. It is hard enough that a defendant may be convicted on a general averment of “aiding and abetting,” without subjecting him, after specific acts are charged, to the hazard of having them stricken after he may have prepared to meet them as made, and to a conviction for acts of any kind that the prosecution may see fit to produce. We do not think it can be done on principle or authority.

Judgment reversed.