The opinion of the court was delivered by
There has been a plain mistrial in this case.
This was the course pursued: A list of thirty-six jurors-was drawn in the ordinary -way; four of these were excused by the court; and the prosecution thinking that a panel of forty-eight was necessary, the sheriff added to the original panel sixteen new jurors.
This was erroneous. It is only when the defendant has-twenty challenges that this can be done; in this case the defendant was not so entitled; he was tried, not for rape, but for a statutory misdemeanor. In that situation the thirty-six jurors were sufficient; and there is no law authorizing a single-additional juror to be added. See Rev., p. 280, § 72.
It is not necessary to decide the other questions raised by counsel. It may, however, be well to say, that I have much doubt whether the state could convict without showing that the carnal abuse was as charged in the indictment, without the consent of -the girl. The word “ without ” may not have been necessary, but it seems to be descriptive, and, therefore,, material, as all matters of description are. A man charged with stealing a black horse cannot be convicted of stealing a white one. The adjective “black” is unnecessary, but it is-material, as it is matter of the description.
If the defendant should be indicted again for criminal intercourse with the consent of the girl, this indictment and judgment could not be pleaded without explanatory averments, as-the second prosecution would, on the record, appear to be for a different transaction.
Also, it seems doubtful whether the charge of rape can be struck out of the indictment; it was the principal charge found by the grand inquest, and the charge that is left seems subsidiary and immaterial.
The judgment should be reversed.