State v. Bailey

| Superior Court of New Hampshire | Jul 15, 1855

Eastman, J.

From an examination of the indictment it will be seem that a clerical error was committed in drawing it, by using the word “ Colebath ” instead of “ Colebrook.” Instead of saying the trustees of “ Colebath Academy aforesaid,” it should have said the trustees of “ Colebrook Academy aforesaid.”

To prove that the false oath was taken in a judicial proceeding, as alleged in the indictment, the counsel for the State offered evidence of the writ and subsequent proceedings in an action in favor of John Bailey plaintiff, against the trustees of the “ Colebrook ” Academy.

The defendant’s counsel contended that there was a fatal variance between the evidence and the allegations of the indictment ; and unless some part of the averment in the indictment can be rejected as surplusage, the objection is well taken; for the trustees of “ Colebath ” Academy cannot be construed to mean the trustees of “ Colebrook” Academy. Can this difficulty be got over ?

The general rule is that all descriptive averments in an indictment must be proved as laid. But if an averment may be entirely omitted without affecting the charge against the prisoner, and without detriment to the indictment, it may be disregarded in evidence. State v. Copp, 15 N. H. Rep. 212; 1 Phill. on Ev. 207.

And all unnecessary words may, on trial or arrest of judgment, be rejected as surplusage, if the indictment would be good upon striking them out. Wharton’s Crim. Law 165; Leach 536; Arch. Cr. Pl. 22; Stark. Cr. Pl. 274; Commonwealth v. Arnold, 4 Pick. 251; State v. Buckman, 8 N.H. 203" court="None" date_filed="1836-07-15" href="https://app.midpage.ai/document/state-v-buckman-8504089?utm_source=webapp" opinion_id="8504089">8 N. H. Rep. 203; Commonwealth v. Bolkom, 3 Pick. 281.

In Rex v. Edwards and Morris, Leach 127, the indictment alleged that the defendant, “ Francis Morris, the said goods above mentioned, so as aforesaid feloniously stolen, taken and carried away, feloniously did receive and have, he the said Thomas Morris then and there well knowing the said goods and chattels to have been feloniously stolen, taken and carried away.” Here was an error in using the name “ Thomas,” instead of n Francis,” but the twelve judges held that the words “ he the said Thomas Morris,” might be struck out as surplusage, and that the indictment was sensible and good without them.

And such would also seem to have been the opinion of the court in Commonwealth v. Hunt, 4 Pick. 252; where the indictment charged that the defendant in and upon one Peddy Harvey did make an assault and her the said Peddy Hunt then and there did beat, wound and ill treat, with the intent her the said Peddy Harvey to ravish. The mistake in the indictment was in calling Peddy Harvey by the name of Peddy Hunt, but it appears to have been held that the whole clause “ and her the said Peddy Hunt then and there did beat, wound and ill treat,” might be rejected as surplus-age. The indictment was perfect without these words.

By striking out the word “ Colebath ” in this indictment it will stand perfectly well. It will then read, “ at the court of common pleas holden at Lancaster, within and for the county of Coos, aforesaid, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and fifty-three, the jurors for the State of New Hampshire upon their oath present, that at the court of common pleas, holden at Lancaster, in and for the county of Coos aforesaid, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and fifty-one, a certain issue duly joined in the court aforesaid, between one John Bailey and the trustees of the Colebrook Academy, a corporation duly established by law in this State, in a plea of the case, in which said John Bailey was plaintiff and the trustees of the academy aforesaid was defendant, came on to be tried in due form of law, and was then and there tried by a certain jury of the county in that behalf, duly empanelled and sworn to try said issue between the said parties.”

It will thus be seen that in rejecting this word as surplus-age, the indictment is left perfect, and the defendant can in no way be prejudiced that we can discover. It is merely an unnecessary word, inconsistent with the other parts of the indictment, that is rejected, and the authorities cited would appear fully to sustain this view of the question. The word can be omitted without affecting the charge against the prisoner, and without detriment to the indictment. The cases which show that averments and words in an indictment cannot be rejected as surplusage, are those where it is made to appear that it cannot be done without leaving the indictment imperfect.

Treating this word as surplusage, there is no variance between the evidence and the indictment. We therefore hold the indictment valid and the evidence competent.

It would seem, also, that upon the authorities the whole averment, as stated by the attorney general, might be stricken out.