65 book, resisting an officer,66 or any other case where knowledge is an essential element of the offense, it must be averred. But where knowledge must be presumed, as common to all men, it is unnecessary to allege or probe it.67 Also where an act is unlawful without regard to the defendant's ignorance or knowledge of the facts, it cannot be necessary to allege knowledge. For instance, an indictment under statute against an unmarried man for adultery with a married woman, need not allege the defendant knew she was a married woman,68 and under a statute prohibiting the sale of intoxicating liquor or adulterated food, it is held that knowledge is not essential, therefore it need not be alleged." § 917. Place. The place where the offense was committed must be alleged in order to show jurisdiction ci the grand jury to present the indictment and of the court over the offense. The venue should not only appear in the caption, but also in the statement of the offense.71 In indictments for certain offenses, such as burglary, arson, or larceny from a building, the particular place is a part of the local description of the crime.72 In other cases it is not essential to prove that the offense was committed at the 65 United States v. Clark, 37 Fed. 106. 66 Commonwealth v. Kirby, 2 Cush. (Mass.) 577. 67 State v. Freeman, 6 Blackf. (Ind.) 248; Turner v. State, 1 Ohio St. 422. 68 Commonwealth v. Elwell, 2 Metc. (Mass.) 190, 35 Am. Dec. 398. 69 Commonwealth v. Raymond, 97 Mass. 567; Commonwealth v. Boynton, 2 Allen (Mass.) 160. 70 Robinson v. State, 20 Fla. 804; People v. Schultz, 85 Mich. 114, 48 N. W. 293; Cross v. State, 11 Tex. 71 Commonwealth v. Elwell, 2 Metc. (Mass.) 190, 35 Am. Dec. 398. See also, Fussell v. State (Nebr.), 166 N. W. 197; State v. Hayden (Mo.), 190 S. W. 311. 72 People v. Slater, 5 Hill (N. Y.) 401. place alleged, but it may be shown that it was committed at any other place within the jurisdiction of the court.73 An allegation that the offense was committed within the jurisdiction of the court, however, is never sufficient, because it is a mere conclusion of law. In many cases such as murder, robbery, assaults, gaming or affray, the name of the county is a sufficient location of the place. As a rule, the name of the county should appear, but if the offense is stated to have been committed in a certain city or town which the court judicially knows is in the county, this is sufficient.75 Where the county is named in the caption, an allegation that the offense was committed in said "county," or "then and there" is sufficient." Where the charge is burglary," selling intoxicating liquor in a certain place,78 maintaining a house of ill-fame,79 etc., or where the restitution of property is sought,80 or the abatement, of a nuisance is asked,81 the place must be particularly alleged, and the proof must conform to the allegation. It is also the rule that where the place of the commission of the offense is described with greater particularity than necessary, it must be proved as 73 State v. Smith, 5 Har. (Del.) 490; Wingard v. State, 13 Ga. 396; Carlisle v. State, 32 Ind. 55; Commonwealth v. Lavery, 101 Mass. 207; Commonwealth v. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252; Rex v. Wardle, Russ. & Ry. 9. 74 Covy v. State, 4 Port. (Ala.) 186; State v. Smith, 5 Har. (Del.) 490; Commonwealth v. Springfield, 7 Mass. 19; Commonwealth v. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252; Haskins v. People, 16 N. Y. 344; Rex v. Wardle, Russ. & Ry. 9. 75 Territory v. Doe, 1 Ariz. 507, 25 Pac. 472; Rex v. Journeyman Tailors, 8 Mod. 10. 76 State v. Slocum, 8 Blackf. (Ind.) 315; Turns v. Commonwealth, 6 Metc. (Mass.) 224. 77 Rex v. Woodward, Moody 323; Reg. v. St. John, 9 Car. & P. 40. 78 Hagan v. State, 4 Kans. 89; Grimme v. Commonwealth, 5 B. Mon. (Ky.) 263; Botto v. State, 26 Miss. 108. 79 Commonwealth v. Logan, 12 Gray (Mass.) 136; State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135. 80 2 Russ. Crimes (9th Am. ed.) 354. 81 Commonwealth v. Heffron, 102 Mass. 148; Rex v. White, 1 Burr. 333. described thus, where an indictment averred that arson was committed on a house in the sixth ward of the city of New York, it is a fatal variance if the proof shows that the house was in the fifth ward.82 The place of the offense should not only be alleged at the beginning of the indictment, but should be repeated as to each issuable fact, and the same is true of the time, but when once the time and place have been alleged, other facts which occurred at the same time and place may be alleged to have been committed then and there.83 § 918. Time of the offense.-The rule is that the indictment should state specifically the time of the offense, but, unless time is of the essence of the offense, it is not necessary to prove that it was committed on the day alleged, provided it was committed on a day prior to the bringing of the indictment, and within the statute of limitations.84 The day, month and year should be alleged.85 If a single act is charged as having been done on two days, the indictment is void either for uncertainty, or repugnancy. 86 If an offense could have been committed only at a certain time, as violation of a Sunday ordinance,87 or hunting or fishing at certain seasons of the year, the act must be charged as having 82 State v. Crogan, 8 Iowa 523; Moore v. State, 12 Ohio St. 387. 83 State v. Williams, 4 Ind. 234, $8 Am. Dec. 627; State v. Welker, 14 Mo. 398; State v. Bacon, 7 Vt. 219. 84 Commonwealth v. Harrington, 3 Pick. (Mass.) 26; Williams v. State, 12 Tex. App. 226; Loftus v. Commonwealth, 3 Grat. (Va.) 631; Adams v. United States, 246 Fed. 830, 159 C. C. A. 132; People v. Van Every, 222 N. Y. 74, 118 N. E. 244; Goldberg v. State (Ga. App.), 95 S. E. 541; State v. Wilson (S. Dak.), 167 N. W. 396; State v. Ivy (Mo.), 192 S. W. 733; Morgan v. Commonwealth, 172 Ky. 684, 189 S. W. 943; United States v. Gaag, 237 Fed. 728 (an excellent case); 1 Chitty Crim. L. 224. 85 State V. Offutt, 4 Blackf. (Ind.) 355; State v. McCarthy, 44 La. Ann. 323, 10 So. 673, 4 Bl. Comm. 306. 86 Commonwealth v. Adams, 1 Gray (Mass.) 481; State v. Temple, 38 Vt. 37. 87 Megowan v. Commonwealth, 2 Metc. (Ky.) 3; State v. Drake, 64 N. Car. 589. been committed at a time when it would constitute an offense.88 Ordinarily where an offense may be a continuing one, as the keeping of a disorderly house, it may be alleged to have taken place on one day and thence continually until another specified day, this form of allegation being known as a continuando.89 If a continuance of acts is necessary in order to constitute an offense, as in the case of being a common seller of intoxicating liquors, the cumulative acts must be charged.00 § 919. Surplusage.-Superfluous matter does not render an indictment bad, because such matter may be rejected.91 If a misdemeanor is alleged to have been done feloniously, the averment may be rejected as surplusage.92 If an allegation is defective, and the remainder of the indictment states the offense, the indictment is not impaired.93 It is surplusage to allege that a robbery was committed "in or near a certain highway" for the place is immaterial, and the indictment is not bad because the allegation is in the disjunctive.94 So to allege that defendant did "embezzle, take, steal and carry away" certain property does not make the indictment bad for duplicity, since the word embezzle may be stricken out as surplusage.95 88 State v. Dodge, 81 Maine 391, 17 Atl. 313. 89 1 Bish. New Crim. Proc., § 394. 90 Wells v. Commonwealth, 12 Gray (Mass.) 326; Commonwealth v. Adams, 4 Gray (Mass.) 27. 91 Feigel v. State, 83 Ind. 580; Commonwealth v. Jeffries, 7 Allen (Mass.) 548, 83 Am. Dec. 712; State v. Kendall, 38 Nebr. 817, 57 N. W. 525; People v. White, 22 Wend. (N. Y.) 167. 92 Commonwealth v. Philpot, 130 Mass. 59. 93 State v. Freeman, 8 Iowa 428, 74 Am. Dec. 317; State v. Wilson, 106 N. Car. 718, 11 S. E. 254. 94 Moyer v. Commonwealth, 7 Pa. St. 439; State v. Gilbert, 13 Vt. 647. 95 Commonwealth v. Brown, 14 Gray (Mass.) 419; Commonwealth v. Simpson, 9 Metc. (Mass.) 138. But averment, which is descriptive of that which is essential to the charge in the indictment, may not be rejected as surplusage, for instance, in an indictment for stealing a horse, it is not necessary in describing it to mention the color, but if it is alleged to have been a black horse, the proof must conform to the allegation, this being an exemplification of the rule that if too great particularity is alleged, it must be proved. So in an indictment for bigamy, alleging that the woman the defendant married is a widow, when the proof shows she is a spinster, there is a fatal variance." Thus an indictment for receiving stolen goods need not state the name of the thief, but if it does, the proof must conform.98 The rule as stated by Story is, "No allegation, whether it be necessary or unnecessary, whether it be more or less farticular, which is descriptive of the identity of that which is legally essential to the charge in the indictment can ever be rejected as surplusage." If the whole of the statement can be stricken out without destroying the accusation and charge, it is not necessary to prove the particular allegation; but if the whole can not be stricken out without getting rid of a part essential to the accusation then, though the averment be more particular than it need have been, the whole must be proved, or the indictment can not be maintained.99 § 920. Duplicity and misjoinder.-Duplicity is charging two or more independent crimes in the same count. Misjoinder is charging two or more independent crimes in dif 96 State v. Gilbert, 13 Vt. 647; 3 Greenl. Ev. (16th ed.), § 10. 97 Rex v. Deeley, 1 Moody 303. 98 Semon v. State, 158 Ind. 55, 62 N. E. 625; Commonwealth v. King, 9 Cush. (Mass.) 284. 99 United States v. Howard, Fed. Cas. No. 15403, 3 Sumn. (U. S.) 12. |