34 N.H. 529 | N.H. | 1857
When an indictment contains an allegation which is descriptive of some matter material to be charged, the allegation can never be rejected as surplusage, but must be proved as laid. If, in describing any person or thing necessary to be set forth in the indictment, it is done with circumstances of more minuteness and particularity than is required, those cir
If a recovery is to be had, it must be secundum allegata et probata ; and the rule is one of entire inflexibility in respect to all such descriptive averments of material matters. The cases upon this point, many of which are collected in the case of State v. Copp, 15 N. H. 215, are quite uniform. The rule admits of no question. Its application is sometimes a matter of doubt. A familiar illustration of it is the case of an averment, in an indictment for resisting an officer in the execution of his duty, that he was duly appointed and qualified. It is sufficient to allege that the officer was sheriff, constable, &c., for his county or town, and parol evidence, showing that he was acting as such officer, in the discharge of the duties of the office, would be sufficient to sustain the indictment without proof of his appointment and qualification. But when it is alleged that he was duly appointed and qualified ■— this averment being of a character to define and describe his official authority — the material matter to be charged must be proved by the production of the proper evidence to show his legal appointment, and the taking of the oath of office, where that is required by law. Whenever the allegation is one which thus describes, qualifies, defines, or limits the thing material to be averred, it becomes an essential part of the legal claim or charge set out, and is a descriptive averment, to be proved.
The indictment in this case alleges that the defendant made oath to the deposition in which is contained the perjury assigned, on the twenty-eighth of November, 1854, and that the oath was taken before Charles H. Bell, Esq. In order to set forth the crime of perjury, it was necessary to aver in the indictment that Mr. Bell had competent authority to administer the oath. By the provisions of sec. 4, chap. 217, Rev. Stat., it is sufficient for this purpose, to allege the matter in those general terms, without setting forth the official character of the magistrate administering the oath, or otherwise specifying the particular