If the written instrument does not form part of the gist of the crime, but it is mentioned in the description of the offense, it is not necessary to set it out verbatim, but a statement of its purport is sufficient.25 Where it is necessary to set forth a writing verbatim and according to its tenor, the indictment should state that this is done, and it is not sufficient to state that such is the effect, substance or purpose of the writing.26

The rules regarding spoken words are substantially the same as those stated in the case of written words.27

§ 913. Description of property.-If the offense charged is one of which real property is the subject, the premises must be described with enough particularity to identify them, and if ownership, occupancy or character is material, the averments must show it,28 for example, in an indictment for hurglary at common-law, the building must be described as a dwelling house, with certainty to a common intent, and the proof must conform to the description.29 And an indictment for burglary or arson must show the ownership or occupancy of the property, for one can not be guilty of these offenses if he owns or occupies the property.30 It is said however, that in an indictment for maintaining a disorderly house, it is sufficient to describe the premises as a certain house located in a certain city and county.31 31

25 Commonwealth v. Coe, 115 Mass. 481; People v. Taylor, 3 Denio (N. Y.) 99; State v. Dunn, 109 N. Car. 839, 13 S. E. 881.

26 McDonnell v. State, 58 Ark. 242, 24 S. W. 105; State v. Twitty, 9 N. Car. 441, 11 Am. Dec. 779; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169.

27 Commonwealth V. Moulton, 108 Mass. 307; Robinson v. Commonwealth, 101 Mass. 27.

28 Thomas v. State, 97 Ala. 3, 12 So. 409; State v. Keena, 63 Conn. 329, 28 Atl. 522; Commonwealth v. Brown, 15 Gray (Mass.) 189.

29 Thomas v. State, 97 Ala. 3, 12 So. 409; Commonwealth v. Brown, 15 Gray (Mass.) 189.

30 State v. Keena, 63 Conn. 329, 28 Atl. 522.

31 Commonwealth v. Skelley, 10 Gray (Mass.) 464; State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135.

Personal property also, if the subject of the offense, must be described with certainty to a common intent.32

In an indictment for larceny, it is not sufficient to charge generally that a certain person's goods and chattels were taken away.33 As some things can not be the subject of larceny, the indictment must show that the things taken were such as could be subject to larceny, for instance, an indictment for stealing animals once ferae naturae, it must be averred that they had been killed or tamed. An indictment for stealing minerals must show that they had been severed from the ground.34 An indictment naming the articles stolen "and a hundred other articles of household furniture" is bad for uncertainty.35 However, minute details are not necessary. So to describe an animal as "a certain hog, the property and chattel of one L" is sufficient without giving the color, kind, size, weight, or mark.36 In the case of a chemical mixture37 it should be described by the name of the mixture; and in the case of a mechanical mixture, where the articles comprising it are changed in character and given a different name, as where cloth, buttons, thread, etc., are made into a suit of clothes, or where wood, iron, etc., are made into a buggy, the finished article should be described by its name.38 The number or quantity of the property taken must be stated, and if there are several different kinds the number or quantity of each kind.39 If value is ma

32 People v. Williams, 35 Cal. 671; Commonwealth v. Gavin, 121 Mass. 54, 23 Am. Rep. 255; State v. Burt, 64 N. Car. 619; Robinson v. Commonwealth, 32 Grat. (Va.) 866.

33 Commonwealth v. Gavin, 121 Mass. 54, 23 Am. Rep. 255; Robinson v. Commonwealth, 32 Grat. (Va.) 866.

34 People v. Williams, 35 Cal. 671; State v. Burt, 64 N. Car. 619.

35 Rex v. Forsyth, Russ. & Ry. 274.

36 People v. Stanford, 64 Cal. 27, 28 Pac. 106; State v. Friend, 47 Minn. 449, 50 N. W. 692.

37 Reg. v. Bond, 1 Den. 517. 38 Commonwealth V. Clair, 7 Allen (Mass.) 525.

39 Commonwealth v. Maxwell, 2 Pick. (Mass.) 139; Leftwich V. Commonwealth, 20 Grat. (Va.) 716

terial, it should be stated, and if several different kinds of property are stated the value of each must be shown.40 Value is always material in indictments for larceny, since that which has no value can not be the subject of larceny." And upon the value of the articles taken, it is determined whether the offense is grand or petit larceny.42

8914. Descriptions of third persons.-In order to identify some offenses with sufficient certainty, the name of a third person must be stated. If it is necessary to mention the name of a third person, the name should be stated fully and accurately, and the proof should correspond with the allegation.43 If the offense is murder, manslaughter, rape or other offense against a person, the name of the person against whom the offense is committed must appear." 44 An indictment for larceny should state the name of the owner of the goods stolen, if he is known.15 The same rule holds in the case of embezzlement where the name of the person defrauded must be shown.46 The name of the owner of the premises must be stated in indictments for burglary or arson.17

401 Hale P. C. 531; 2 Hale, P. C. 185; People v. Dempsey, 283 Ill. 342, 119 N. E. 333 (variance not fatal).

41 Wilson v. State, 1 Port. (Ala.) 118; People v. Willey, 3 Hill (N. Y.) 194.

42 State v. Tillery, 1 Nott. & McC. (S. Car.) 9. See also, Wilson v. State, 1 Port. (Ala.) 118.

43 Commonwealth v. Shearman, 11 Cush. (Mass.) 546; 2 Hawk. P. C., ch. 25, § 72; 1 Chitty Crim. L. 213.

44 State v. Stucky, 2 Blackf. (Ind.) 289; 1 Chitty Crim. L. 211.

45 Commonwealth v. Morse, 14

If

Mass. 217; Long v. State (Tex.), 20 S. W. 576; Kahanek v. State (Tex. Cr.), 201 S. W. 994; Wool v. State (Tex. Cr.), 201 S. W. 1002; Allen v. Commonwealth (Va.), 94 S. E. 783; Parker v. State (Fla.), 78 So. 980.

46 Commonwealth v. Morse, 14 Mass. 217; Long v. State (Tex.), 20 S. W. 576.

47 People v. Parker, 91 Cal. 91, 27 Pac. 537; Commonwealth V. Perris, 108 Mass. 1; Commonwealth v. Hartnett, 3 Gray (Mass.) 450; Winslow v. State, 26 Nebr. 308, 41 N. W. 1116; People v. Gates, 15 Wend. (N. Y.) 159.

the names of the third persons in the above cases are unknown, they should be described as persons unknown.48 In naming a third person only certainty to a common intent is required. His full Christian and surname should be used if known.50 Where the accused is charged with making an illegal sale, it is usually sufficient to describe the goods sold. Thus, in an indictment for illegal sale of intoxicating liquor, it is not essential to describe the purchaser.51 In a few jurisdictions, however, the contrary is held.52 And it has been held that where the accused is charged with illegal sale of a lottery ticket that the name of the purchaser, if known, must be stated.58

54

§ 915. Intent.-In certain crimes or misdemeanors a particular intention is an essential element of the offense, and in such cases the intent must be expressly and specifically alleged. This is especially true where a crime is attempted but not accomplished, and the only thing which can be punished is the attempt to carry out a criminal intention.55 There are many acts which are criminal in themselves, the doing of which is held to include a criminal intent, and in such cases intent need not be alleged. This is true in an indictment for murder, committed by means of a deadly

48 Holford v. State, 2 Blackf. (Ind.) 103; Commonwealth V. Tompson, 2 Cush. (Mass.) 551; 1 Chitty Crim. L. 212.

49 State v. Crank, 2 Bailey (S. Car.) 66, 43 Am. Dec. 117, 1 Chitty Crim. L. 215.

50 Commonwealth v. Perkins, 1 Pick. (Mass.) 388; State v. Martin, 10 Mo. 391; Walden v. Holman, 6 Mod. 115.

51 Rice v. People, 38 I11. 435.
52 McLaughlin v. State, 45 Ind.

338.

53 Commonwealth v. Sheedy, 159 Mass. 55, 34 N. E. 84.

54 Commonwealth v. Hersey, 2 Allen (Mass.) 173; State v. McCarter, 98 N. Car. 637, 4 S. E. 553; Jones v. State, 101 Nebr. 847, 166 N. W. 252; Savage v. State (Ala. App.), 72 So. 694; State v. Authement, 139 La. 1070, 72 So. 739.

55 People v. Congleton, 44 Cal. 92; Commonwealth v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336; People v. Pettit, 3 Johns. (N. Y.) 511.

weapon,56 or for rape.57 But in burglary the intent to commit a felony in the house broken into is essential to the crime and must be alleged.58 The same rule holds in forgery or false pretenses, in which intent to defraud is essential to the crime, and must be alleged.50 The same is true of attempt to murder, or assault with intent to rape.60

§ 916. Notice, request or knowledge.-Particular knowledge is an essential element of some offenses, and must be alleged. Thus, where there is a penalty for knowingly selling unwholesome provisions, it must not alone be alleged that the defendant "did knowingly sell" unwholesome provisions, but that he knew at the time that they were unwholesome, for, it is said, a person may knowingly seil an unwholesome article without knowing it to be unwholesome.61 An indictment for receiving stolen goods must allege that the defendant knew they were stolen. To allege that he "knowingly received" them is insufficient.62 In indictments for uttering forged instruments or counterfeit coin,63 knowingly voting illegally,

56 Commonwealth v. Hersey, 2 Allen (Mass.) 173.

57 Commonwealth v. Hersey, 2 Allen (Mass.) 173.

58 State v. Tyrrell, 98 Mo. 354, 11 S. W. 734; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258.

59 Commonwealth v. Dean, 110 Mass. 64; State v. Jackson, 89 Mo. 561, 1 S. W. 760.

60 Commonwealth v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336; State v. Patrick, 3 Wis. 812.

selling an obscene

61 Commonwealth v. Boynton, 12 Cush. (Mass.) 499. See also, Stein v. State, 37 Ala. 123. But see United States v. Clark, 37 Fed. 106.

62 Commonwealth v. Cohen, 120 Mass. 198; Commonwealth v. Merriam, 7 Allen (Mass.) 356.

63 Powers v. State, 87 Ind. 97; Gates v. State, 71 Miss. 874, 16 So. 342.

64 United States v. Watkinds, 6 Fed. 152, 7 Sawy. (U. S.) 85.