dictment for obtaining goods on false pretences, any one of the false pretences be shown, that one being itself within the statute, and appearing to have been operative in inducing the prosecutor to part with his property, it will be sufficient to support a conviction. The same principle obtains in indictments for blasphemy g and treason g1 § 619. Several articles joined in larceny, embezzlement, &c.Where there are several articles included in indictments for stealing, &c., proof as to one is enough. h Upon an indictment for extortion, alleging that the defendant extorted twenty shillings, it is sufficient to prove that he extorted one shilling. i An indictment for embezzling two bank notes of equal value, is supported by proof of the embezzlement of one note only. On an indictment for stealing over $100, one may be convicted for stealing less than $100. k And so, too, on an indictment for having in possession more than ten pieces of counterfeit coin, one may be found guilty of having less than ten. 7 Several objects in conspiracy. Upon an indictment for conspiring to prevent workmen from continuing to work, it is sufficent to prove a conspiracy to prevent one workman from working. m § 620. Where averments are divisible, proof of either is enough. Where an indictment contains divisible averments, as that the defendant "forged and caused to be forged," proof of either averment will be sufficient. n Thus, a defendant may be convicted of printing and publishing a libel upon an indictment Ady, 7 C. & P. 140; Ld. Raymond, 886; 2 Camp. 138, 139; Cro. C. C. 7th ed. 622; State v. Hascall, 6 New Hamp. 358; State v. Mills, 17 Maine, 211; see De Bernie v. State, 19 Ala. 23. See ante, § 392; post, § 2260. f Ibid.; R. v. Hill, R. & R. 190; People v. Haynes, 11 Wend. 557; 1 Greenl. on Ev. § 65; post, § 2153, 2158. g Com. v. Kneeland, 20 Pick. 206. g1 Foster C. L. 194; post, § 2734-6. h Ante, § 361, 391; post, § 628, 1837; People v. Wiley, 3 Hill, N. Y. 194; Com. v. Eastman, Gray, 76; Com. v. Williams, 2 Cush. 583. post, § 1817 a. i R. v. Burdett, 1 Ld. Raym. 149; see R. v. Carson, R. & R. 303. j R. v. Carson, R. & R. 303; 1 Greenleaf on Ev. § 65; Furneaux's case, R. & R. 335; Tyer's case, R. & R. 402. k Com. v. Griffin, 21 Pick. 523; Com. v. O'Connell, 12 Allen, 451. But some part of the notes or coin charged must be specifically proved. Ante, § 611. 7 Com. v. Griffin, 21 Pick. 523. m R. v. Bykerdyke, 1 M. & Rob. 179; ante, § 392. n R. v. Middlehurst, 1 Bur. 400; See Hoskins v. State, 11 Geo. 92; ante, § 388. which charges him with composing, printing, and publishing it. o On the same reasoning, where two intentions are ascribed to one act, as, that an assault was committed upon a female, with intent to abuse and carnally know her, p proof of either of these intentions will be sufficient. § 620 a. Joint defendants. Where two are charged with a joint and single offence, e. g. larceny, either may be found guilty; but they cannot be found guilty of separate parts of the charge; and if found guilty separately, a pardon must be obtained, or a nolle prosequi entered as to the one who stands second upon the indictment, before judgment can be given against the other. q But where several are indicted for burglary and larceny, one may be found guilty of the burglary and larceny, and the others of the larceny only. r Where, however, the act is not joint, the English practice seems to be to give judgment against the party who is proved to have committed the first felony and acquit the others r1 § 621. Statutory extension of divisibility.—By statutes now of almost universal adoption, the common law rule in this respect has been largely expanded. Thus, for instance, in Massachusetts, by force of statute, it is now held that on an indictment for rape, the prisoner may be convicted of incest or assault and battery. 8 And on an indictment for manslaughter, the defendant may be convicted of assault and battery. t But it was held in a prior case, that on an indictment for murder there cannot at common law be a conviction of an assault with intent to murder. u o R. v. Hunt, 2 Camp. 585; R. v. Williams, Ibid. 646; see State v. Locklear, 1 Busbee, 205. p R. v. Dawson, 1 Eng. L. & Eq. 589; 3 Stark. 62; People v. Curling, 1 Johns. 320; R. v. Hanson, 1 C. & Mars. 334; ante, § 392; post, § 635. q R. v. Hemstead, R. & R. 344; O'Connell v. R. 11 Cl. & Fin. 155; ante, § 434; post, § 3199. 520 r R. v. Butterworth, R. & R. 520; ante, § 383; post, § 3199. rl R. v. Dovey, 2 Den. C. C. 86; 2 Eng. Law & Eq. 532; ante, § 434. s Com. v. Goodhue, 2 Metc. 193; Com. v. Drum, 19 Pick.479. See ante, § 388. t Com. v. Drum, 19 Pick. 479. See ante, § 388. u Com. v. Roby, 12 Pick. 496. VIII. SURPLUSAGE. 1. UNNECESSARY WORDS, § 622. IS CONVICTED, AND A MAJOR, WITH 4. ALLEGATIONS OF NUMBER, QUANTITY, 1. Unnecessary Words. § 622. All unnecessary words may, on trial or arrest of judgment, be rejected as surplusage, if the indictment would be good upon striking them out. v In Redman's case, w the indictment alleged that the defendant received goods, knowing the said goods to have been feloniously stolen, and upon motion in arrest of judgment, it was holden that the words "to have" might be rejected. So where an 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; 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. y And again, where it was charged that the defendant made an assault on "Henry B." and "him, the said William B. did beat," &c., " and other wrongs to the said William B. did," &c., "to the damage of the said William B.,” the indictment was held good on arrest of judgment. z There can, it is said, be no use in requiring proof of allegations, which are wholly impertinent; the identity of those allegations which are essential to the claim or charge, with the proof, is all that is ma v Leach, 536; 1 T. R. 322; Com. Dig. Pleader, c. 28, 29, F. 12; 4 Co. 412; Mod. 327; People v. Lohman, 2 Barb. S. C. R. 216; State v. Coppenberg, 2 Strobh. 273; State v. Brown, 8 Humph. 89; State v. Cozens, 6 Iredell, 82; State v. Wilder, 7 Blackf. 582; U. S. v. Howard, 3 Sumner, 12; State v. Noble, 3 Shep. 476; 2 Russ. on Crimes, 786; State v. Palmer, 35 Maine (5 Red.), 9; Jillard v. Com. 2 Casey, 170; State v. Bailey, 11 Foster (N. H.), 521; State v. Corrigan, 24 x R. v. Redman, Leach, 477. y R. v. Morris, 1 Leach C. C. 109. z R. v. Crespin, 11 Adolphus & Ellis, N. S. 914; State v. Burt, 25 Vt. (2 Deane) 373. terial. Thus, if it were alleged that A., being armed with a bludgeon, and disguised with a visor, feloniously stole, took, and carried away, the watch of B., the allegations that A. was armed and disguised being altogether foreign to a charge of larceny, would be wholly rejected, and would require no proof on the trial. So, where an indictment for an assault and battery with an intent to kill, stated that the defendant did bite or cut off the ear of the prosecutor, &c., it was held, that this being merely a circumstance of aggravation, the stating it disjunctively did not vitiate the indictment. a In a complaint which alleges that the defendant did make an assault on Lucy Ann Keach, and her did strike with a ferule, "divers grievous and dangerous blows upon the head, back, shoulders, and other parts of the body [of her the said Lucy Ann Leach, whereby the said Lucy Ann Leach was cruelly beaten and wounded, and other wrongs to the said Lucy Ann Keach then and there did and committed], to her great damage," the words above inclosed in brackets may be rejected as surplusage, leaving a sufficient charge of an assault on Lucy Ann Keach, a1 § 623. Where the plaintiff alleged, that before the publication of a libel by the defendant, the plaintiff's carriage came in contact with a carriage in which E. S. was riding, and that the accident happened without any default on the part of the plaintiff, and then alleged a publication of a libel of and concerning the accident; and upon the evidence it appeared that the accident did happen through the default of the plaintiff; it was held to be no variance, so as to bar the plaintiff from recovering as to part of the libel, not justified, the allegations being divisible, and the averment, that the accident happened without the plaintiff's default, being an immaterial circumstance. b Where an indictment under the act of Congress of 1825, ch. 276, § 5, 22, the ownership of the vessel was alleged to be in William Nye and others, instead of Willard Nye and others, it was held that an allegation of the particular ownership was unnecessary and immaterial, and that the misnomer above men a Scott v. Com. 6 Serg. & Rawle, 224. 36. al Com. v. Randall, 4 Gray (Mass.), b Ld. Churchill v. Hunt, 2 B. & A. 685. 1 tioned was of no consequence; it being sufficient to allege that the owners were citizens of the United States. c So where an indictment alleged a robbery to have been committed in the dwelling-house of A. B., it was held that a variance as to the owner's name was immaterial, as it was not essential to the crime of robbery that it should have been committed in a dwelling-house. d Videlicet. It has been said in New York, "that when the indictment does not stop with the general charge, but proceeds under a videlicet to explain or render more certain by description, the description becomes a material part of the charge. It is the office of a videlicet to restrain or limit the generality of the preceding words, and in some instances to explain them. If what precedes be matter of direct averment and material, then what is stated under the videlicet will be deemed material and traversable. . . And if traversable they must be proved." d1 2. Aggravation or Inducement. § 624. The same principle extends to cases where the evidence fails to prove circumstances not altogether impertinent, but which merely affect the magnitude or extent of the claim or charge; and here, although circumstances are alleged, e which, if proved, would have been of legal importance, yet, although the evidence failed to establish the whole of what is alleged, the principle adverted to still operates to give effect to what is proved, to the extent to which it is proved. "The principles," remarks Mr. Starkie," which require the cause of action, or ground of offence to be stated, are satisfied: the adversary is not taken by surprise, for no fact is admitted in evidence which is not alleged against him; and the court is enabled to pronounce on the legal effect of the part which is established as true, by the verdict of the jury, and the record shows the real nature and extent of the right or liability established." el Thus, where an indictment in one count charges a rescue, and also an assault and battery, and the defend c U. S. v. Howard, 3 Sumner, 12; State v. Cassety, 1 Richardson, 91. d Pye's case, East's P. C. 785. d1 People v. Jackson, 3 Denio, 101; see Crichton v. People, 6 Parker C. R. 363; but see Ryalls v. R. 11 Q. B. 781. Ante, § 263. e See ante, § 298. el Starkie on Evidence, 1550, 1565; U. S. v. Howard, 3 Sumner, 12; Cameron v. State, 8 Eng. (13 Ark.) 712. |