168 DISTINCTION BETWEEN UNNECESSARY AVERMENTS averred that the rent was reserved quarterly, whereas it turned out to be reserved yearly. There, had the whole averment as to the reservation of the rent been struck out, the plaintiff could not have maintained his action, because some rent must necessarily have been averred to be due; and therefore, though the plaintiff need not have stated in what manner the rent was reserved, yet, as he had chosen to do so, the defendant was held entitled to avail himself of the defect of proof in that particular. So, if, in justifying the taking of cattle damage feasant, in which case it is sufficient to allege that they were doing damage in the defendant's freehold, he should needlessly state a seisin in fee, which is traversed, the precise estate which he has set forth becomes an essentially descriptive allegation, and must be proved as alleged (g). Upon the same ground it has been held, that if a person be indicted for stealing a live fowl, he cannot be convicted upon evidence showing that he has stolen a dead one (r); and an allegation of the colour of an animal, though wholly unnecessary, must, as a matter of description, be proved as laid. So, where an indictment for bigamy described the second wife as a widow, when in fact she had never been married, the misdescription was held fatal, though it was unnecessary to have stated more than her name (s); and where a crime, alleged to have taken place "at A., in the county of B., within five hundred yards of the boundary of D., to wit at C., in the county of D.," was proved to have been committed in D., the prisoner was acquitted, Mr. Justice Crampton observing, "If you choose to go out of your way to make a special averment, and to allege a particular place in the indictment, the question is, whether you are bound to prove it. I think you are" (t). In these cases, the essential and non-essential parts of the statement were so (7) Leke's case, Dyer, 365; Turner v. Eyles, 3 B. & P. 456. (7) R. v. Edwards, R. & R. 497. Holroyd, J., there observed, that an indictment for stealing a dead animal should state that it was dead; for upon a general statement that a party stole an animal, the law will intend that he stole it alive. (s) R. v. Deeley, 1 Moo. C. C. 303; but see R. v. Ogilvie, 2 C. & P. 230, where the prosecutor being described as A. B., Esquire, the addition was rejected as surplusage by Burrough, J. So, in R. v. Graham, 2 Lea. 547, where the goods stolen were alleged to be the property of J. H., Esq. commonly called Earl of C. in the kingdom of Ireland, it was held that the words marked in italics might be rejected as surplusage. (1) R. v. M'Kenna, Ir. Cir. R. 416; see also R. v. Durore, 1 Lea. 351; 1 East, P. C. 45, S. C.; and R. v. Upton-on-Severn, 6 C. & P. 133. AND AVERMENTS STATED WITH NEEDLESS PARTICULARITY. 169 connected and dovetailed, as to be incapable of separation, and therefore both were considered as alike material. § 170. The language of Mr. Justice Coleridge, cited above (u), is also important as showing that the law, which rejects surplusage, applies equally in criminal as in civil proceedings. Thus, if a party be indicted for robbery in the dwelling-house of A. B. (v), or for arson in the night time (w), the allegations marked in italics may be rejected as surplusage, and consequently need not be proved (x). The case of R. v. Jones will illustrate this subject (y). The repealed act of 9 Geo. 4, c. 41, provided, (2) that no person (not a parish patient) should be taken into a lunatic asylum without a certificate of two medical men, containing certain particulars. § 30 enacted, that any person who should knowingly, and with intention to deceive, sign such certificate, untruly setting forth such particulars, should be guilty of a misdemeanor; while a second clause made it a substantive offence for any physician, surgeon, or apothecary to sign such certificate, without having visited the patient. The indictment stated that the defendant, being a surgeon, knowingly, and with intention to deceive, signed a certificate without having visited the patient, thus blending in one charge two distinct offences. The jury negatived any intent to deceive, but found the defendant guilty; and the court held that the conviction was right, since the averment of intention was mere surplusage. So, where an indictment charged the defendants with conspiring to indict the prosecutor falsely, with intent to extort money, they were held to be rightly convicted, though the jury, in finding them guilty of conspiring to indict with the intent alleged, expressly negatived any conspiracy to make a false charge; for the court observed that a conspiracy to prefer an indictment for purposes of extortion was doubtless a misdemeanor, whether the charge were true or false (a). If a common-law offence be laid (u) See ante, end of § 168. (v) R. v. Pye, 2 East, P. C. 786; R. v. Johnstone, id., by all the judges; see also R. v. Wardle, R. & R. 9. (w) R. v. Minton, 2 East, P. C. 1021. (x) For other instances, see R. v. Phillips, R. & R. 369; R. v. Oxford, id. 382; R. v. Summers, 2 East, P. C. 785; R. v. Hickman, id. 593; 1 Lea. 318, S. C.; R. v. Healey, 1 Moo. C. C. 1; 2 Russ. C. & M. 786-789. (y) 2 B. & Ad. 611. (~) § 29. This act was repealed by 2 & 3 Will. 4, c. 107, which, in its turn, was repealed by 8 & 9 Vict. c. 100, the act now in force. (a) R. v. Hollingberry, 4 B. & C. 329. 170 CUMULATIVE ALLEGATIONS IMMATERIAL. as committed "against the form of the statute," the allegation may be rejected as surplusage (b). § 171. A second rule respecting variances is that cumulative allegations, or such as merely operate in aggravation, are immaterial, provided that sufficient is proved to establish some right, offence, or justification, included in the claim, charge, or defence specified on the record. This rule, as applicable to criminal proceedings, was adopted and defined by Lord Ellenborough in the case of R. v. Hunt (c). There the defendant was charged in an information with composing, printing, and publishing a libel, but no evidence was given to show that he was the author. His counsel thereupon claimed an acquittal on his behalf, but the learned judge observed, "It is enough to prove publication (d). If an indictment charges that the defendant did and caused to be done (e) a particular act, it is enough to prove either. The distinction runs through the whole criminal law; and it is invariably enough to prove so much of the indictment, as shows that the defendant has committed a substantive crime therein specified." Thus, on an indictment for murder, the prisoner may be convicted of manslaughter, for the averment of malice aforethought is merely matter of aggravation (f). So, on an indictment for burglary and stealing, with or without a murderous assault (g), if the prosecutor establish his case with the exception of proving that the breaking was by night, the prisoner may be convicted of housebreaking (h); if no breaking be proved, but the property stolen be laid in the indictment, and be proved by the evidence, to be of greater value than five pounds, the verdict may be guilty of stealing in a dwelling-house to that amount (i); if no satisfactory evidence be offered to show either that the house was a dwelling-house, or some building communi (b) R. v. Mathews, 5 T. R. 162. (c) 2 Camp. 583. (d) S. P. in R. v. Williams, 2 Camp. 646, per Lawrence, J. (f) Co. Lit. 282 a. (h) Under 7 & 8 Geo. 4, c. 29, § 12, Eng., and 9 Geo. 4, c. 55, § 12, Ir., amended as to punishment by 3 & 4 Will. 4, c. 44, and 7 Will. 4 & 1 Vict. c. 90, § 1. (i) Under 7 & 8 Geo. 4, c. 29, § 12, Eng., and 9 Geo. 4, c. 55, § 12, Ir., amended as to punishment by 2 & 3 Will. 4, c. 62, and 7 Will. 4 & 1 Vict. c. 90, § 1. ; see R. v. Compton, 3 C. & P. 418, per Gaselee, J. CUMULATIVE ALLEGATIONS-SEVERAL INTENTS. 171 cating therewith (j); or that it was the dwelling-house of the party named in the indictment; or that it was locally situated as therein alleged; or that the stolen property was of the value of five pounds; still the prisoner may be convicted of simple larceny, provided it appear that any goods were stolen by him (j). So, on a charge of stealing in a dwelling-house, with or without menaces (k), or of stealing from the person, with or without violence (1), the prisoner may be found guilty of larceny, if the evidence be not sufficient to prove the commission of the more aggravated crime (m); and an indictment under the statute for horse-stealing, though bad for not describing the animal by any term used in the act, will support a conviction for larceny (n). Again, on the same principle, if an indictment for treason or conspiracy charge several overt acts, it is sufficient to prove one (o); and, on an indictment for obtaining property by several false pretences, it is not necessary to prove them all, unless they are so connected as to be incapable of separation (p), but it will suffice to prove the one or more, by which the property was in fact obtained (q). § 172. In like manner, if a compound intent, or several intents, be laid in the indictment, and if one part of the compound intent, or each of the several intents, when coupled with the act done, constitute an offence, it will not be necessary to prove the whole as laid. Thus, an indictment for killing a sheep, with intent to steal the whole carcase, will be supported by proof of an intent to steal part of the carcase (r). So, a man accused of assaulting a girl (j) R. v. Bullock, 1 Moo. C. C. 324, note a; R. v. Brookes, C. & Marsh. 543, per Patteson, J.; R. v. Jackson, cited 2 Russ. C. & M. 801, per Cresswell, J. (k) See 7 Will. 4 & 1 Vict. c. 86, § 6. (7) See 7 Will. 4 & 1 Vict. c. 87, §§ 2, 3. (2) R. v. Hill, R. & R. 190. (n) R. v. Beaney, R. & R. 416. (p) R. v. Wickham, 10 A. & E. 34. (r) R. v. Williams, 1 Moo. C. C. 107. That case was decided on the act of 14 Geo. 2, c. 6 (now repealed), which speaks, in the alternative, of an intent to steal the whole carcase, or any part of the carcase. The same point seems, however, to have been ruled by Cresswell, J., in R. v. Marley, cited 2 Russ. C. & M. 137, which case must have turned on the language of 7 & 8 Geo. 4, c. 29, § 25. This last act uses the words "with intent to steal the carcase or skin, or any part of the cattle so killed" &c. The principle in both cases was the same, namely, "that the offence of intending to steal a part was part of the offence of intending to steal the whole, 172 HOW FAR INTENT MUST BE PROVED AS LAID. with intent to abuse her and carnally know her, may be found guilty of an assault with intent to abuse simply (s); and a party indicted for publishing a libel with intent to defame certain magistrates, and also to bring the administration of justice into contempt, may be found guilty, if the libel was published with either of those intents (t). But the intent proved must either correspond with, or be included in, the intent alleged. Thus, it will be a fatal variance, if an indictment for burglary charge an intent to steal, and it be shown that the real intent was to commit rape or murder (u); and a prisoner charged with burglary and stealing, will be acquitted, if no property was taken, though it appear that the house was entered with an intent to steal; and though, had larceny actually been committed, he would have been convicted, without any allegation in the indictment of a felonious intent (v). § 173. The rule under discussion has been adopted by the legislature on several occasions. Thus, if a woman be charged with the murder of her infant, she may be convicted of endeavouring to conceal its birth (w); and the act of 7 Will. 4 & 1 Vict. c. 85, § 11, provides, that if a party be indicted for any of the offences thereinbefore mentioned, or for any felony, where the crime charged shall include an assault against the person, the jury, though they acquit him of the felony, may find him guilty of the assault, if the evidence shall warrant such finding. The construction of this act is not yet definitively settled, but the better opinion seems to be, that while, on the one hand, the assault of which the prisoner is convicted must be involved in and connected with the identical act, which the Crown charges as a felony (x); so, on the other, it is not necessary that the jury should find any intention to commit such felony (y). Thus, a prisoner charged with rape and that the statute meant to make it immaterial whether the intent applied to the whole, or only to part," per Cur. 1 Moo. C. C. 111. (s) R. v. Dawson, 3 Stark. R. 62, per Holroyd, J. (t) R. v. Evans, 3 Stark. R. 35, per Bayley, J. (u) 2 East, P. C. 514. (v) R. v. Furnival, R. & R. 445 ; R. v. Vandercomb, 2 East, P. C. 514. (w) 9 Geo. 4, c. 31, § 14. (x) R. v. Guttridge, 9 C. & P. 471, per Parke, B.; R. v. St. George, id. 483; R v. Phelps, C. & Marsh. 180; 2 Moo. C. C. 240, S. C.; R. v. Crumpton, C. & Marsh. 597; R. v. Birch, 2 C. & Kir. 193, by the fifteen judges. (y) R. v. Ellis, 8 C. & P. 654, per Park, J., and Alderson, B.; R. v. Boden, |