If the gravamen of the complaint in this case was the erection of the dam, the prosecution must fail by reason of the variance between the indictment and the evidence in relation to the place where it was situated,' .and no indictment could be sustained here, because the
But the gist of the offence charged is not in the erection of the dam, but in the' overflowing and damaging of the highway in Effingham. The variance between the indictment and the evidence respecting the precise situation of the dam by means of which the defendant caused the nuisance in the highway, is therefore immaterial. The averment that the dam was situated partly in Effingham and partly in Parsonsfield, may be rejected as surplusage. Starkie on Grim. Pl. 273; 2 Hawk. P. C. 840; 8 Fairfield 861; 15 Maine 476. That averment is not descriptive in a sense which requires that it be proved. If it were struck out the indictment would stand good.
The nuisance complained of being within this State, it is not important that the dam which occasioned it was in the State of Maine.
Judgment on the verdict.