State v. Daly , 14 R.I. 510 ( 1884 )

Mary Davis, or Mary Daly, widow, was indicted as Mary Daly, "Spinster." She pleaded in abatement for the erroneous addition. The plea was overruled in the court below. The Attorney General contends that it was rightly overruled because it is unnecessary under our statute to describe a person who is indicted by the addition of his degree or mystery. He cites R.I. Colonial Records, vol. 5, pp. 288, 289; Digests of 1797, p. 161, § 3; of 1822, p. 123, § 3, and of 1844, p. 12, § 2; and Rev. Stat. R.I. cap. 222, § 2; from which it appears that in 1749 the statute of 1 Henry V. cap. 5 was introduced; that in 1797 it was enacted by express provision that in every indictment there should be added to the name of the person indicted "the place to which he shall . . . belong, or the place in which he is or of late was commorant, and also his degree or mystery;" that this provision was reenacted in full in 1822 and 1844, but that in 1857 it was reenacted in the Revised Statutes without the words, "and also his degree or mystery," and that it has been reenacted without them in the two later revisions. We think that, in view of this course of legislation, any addition of the degree or mystery is unnecessary and can be safely omitted: but it does not follow that the addition of a false degree or mystery can be treated as mere surplusage. The degree or mystery describes the accused, and if it be false, it falsely describes him. This is what happened here. The defendant was not, when she was indicted, Mary Daly, "Spinster." We think she was entitled, if described at all by the addition of her degree or mystery, to be correctly described. And see State v. Hughes, 1 Swan Tenn. 261; Price v. The State, 19 Ohio, 423; Rex v. Deeley, 4 Car. P. 579. The plea must be sustained and the indictment quashed.

Order accordingly.