Tyler v. State , 69 Miss. 395 ( 1891 )

Cooper, J.,

delivered the opinion of the court.

There is a fatal variance between the allegations of the indictment and the evidence. The indictment charges that the defendant, in violation of law, sold certain intoxicating liquors to James Robertson and Henry Briner. The evidence is of a sale to Briner alone.

It was unnecessary to charge to whom the sale' was made, since any sale was unlawful; but by charging that the sale for which the indictment was preferred was the one (or some one) to Robertson and Briner, the unnecessary averment became essential, as one descriptive of the offense charged. In the case of John, a slave, v. The State, 24 Miss., 569, the indictment charged that the accused was the property of John D. Cook, and it was held that, although the averment was unnecessary, and need not have been made, yet, being inserted in the indictment, it became essential as descriptive of the person of the accused, and must be proved.

In speaking of the rule that immaterial averments may be rejected as surplusage, the court said: “But this rule has never been held to apply to allegations which, however unnecessary, are nevertheless connected with and descriptive of that which is material; or, in other words, to averments winch might, with propriety, have been dispensed with, but, being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge, as, for example, an indictment for stealing a black horse will not be supported by proof that the horse was of some other color, for the allegation of color is descriptive of that which is legally essential to the offense, and cannot be rejected.”

In Dick v. The State, the indictment unnecessarily charged that the defendant was -a negro. The evidence showed him to be a mulatto. The variance was held to be fatal. 30 Miss., 631.

"Where the entire averment of which the descriptive matter is a part, is surplusage, it may be rejected, and the descriptive averment need not be proved. 1 Bishop on Crim. Proc., § 488. But it must be proved as charged, wherever, if the person, thing, act, place or time to which it refers was struck from the indictment, no offense would be charged. Ib., §486.

Judgment reversed.