15 Me. 476 | Me. | 1839
The case was continued, and the opinion prepared by
It may be regarded as a general rule, both in criminal prosecutions and in civil actions, that an unnecessary averment may be rejected, where enough remains to show, that an of-fence has been committed, or that a cause of action exists. In Ricketts v. Solway, 2 Barn. & Ald. 360, Abbott C. J. says, “ there is one exception however to this rule, which is, where the allegation contains matter of description. Then if the proof given be different from the statement, the variance is fatal.” As an illustration of this exception, Starkie puts the case of a man charged with stealing a black horse. The allegation of color is unnecessary, yet as it is descriptive of that, which is the subject matter of the charge, it cannot be rejected as surplusage, and the man convicted
In the case before us, the subject matter is a pine log, marked in a particular manner described. The marks determine the identity ; and are therefore matter purely of description. It would not be easy to adduce a stronger case of this character. It might have been sufficient to have stated, that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log, we are quite clear, that the defendant could not be con-yicted of taking an oak or a birch log. The offence would be the same; but the charge, to which the party was called to answer, and which it was incumbent on him to meet, is for'taking a log of an entirely different description. The kind of timber, and the artificial marks by which it was distinguished, are descriptive parts of the subject matter .of the charge, which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken, was a different one from that charged in the indictment; and the defendant could be legally called upon to answer only for taking the log there described. In our judgment therefore, the jury were erroneously instructed, that the marks might be rejected as surplusage; and the exceptions are accordingly sustained.
