upon the indictment; and all these requisite allegations must be satisfied in evidence, and proved as laid. But allegations not essential to such a purpose, which might be entirely omitted, without affecting the charge against the prisoner, and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.

"In considering the subject of surplusage, it must always be remembered that it is a most general rule that no allegation whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected.

"2. It is to be considered with what precision of proof those allegations which cannot be disregarded in evidence must be supported; or, in other words, what is a fatal variance between a material averment in an indictment, and the evidence adduced in support of it. The general rule on this subject is, that a variance between the indictment and the evidence is not material provided the substance of the matter be found.

"And with respect to the proof of the offense charged the rule is universal that it is sufficient if the evidence agree in substance with the averments in the indictment. Thus, on an indictment for murder, it will be sufficient if the manner of the death proved agree in substance with that charged.

"In criminal prosecutions, from the highest offense to the lowest, it is unnecessary to prove the time of committing the offense precisely as laid, unless that particular time is material; and the facts may be proved to have occurred on any day previous to the finding of the bill by the grand jury." 2 Russell, Crimes, chap. 2, p. 790, § 3.

By express sanction of the Federal law which may be regarded as a settled principle of the legal polity of this country, the accused has the constitutional right "to be informed of the nature and cause of the accusation." U. S. Const. 6th Amend. In United States v. Mills, 32 U. S. 7 Pet. 142, 8 L. ed. 637, this was construed to mean, that the indictment must set forth the offense "with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;" and in United States

v. Cook, 84 U. S. 17 Wall. 174, 21 L. ed. 539, that, "every ingredient of which the offense is composed must be accurately and clearly alleged." It is an elementary principle of criminal pleading, that where the definition of an offense, whether it be by common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the speciesit must descend to particulars. 1 Archb. Crim. Pr. & Pl. 291. The object of the indictment is first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstance.

Where satisfactory evidence is adduced tending to show that the indictment was founded upon incompetent or insufficient evidence a motion to quash is in order. A plea in abatement will not lie, and in fact should never be allowed. People v. Hulbut, 4 Denio, 133; State v. Boyd, 2 Hill, L. 288; United States v. Reed, 2 Blatchf. 435; Turk v. State, 7 Ohio, 240; State v. Dayton, 23 N. J. L. 49; Spratt v. State, 8 Mo. 247; Rex v. Dickenson, Russ. & R. 401; Reg. v. Russell, Car. & M. 247.

In People v. Hulbut, supra, the court, per Bronson, Chief Justice, said: "The indictment when presented in due form by the grand jury and filed in court is a record, and, like other records, imports absolute verity. It cannot be impeached unless it be upon motion showing that it was not founded upon sufficient evidence, or that there was any other fault or irregularity in the proceedings."

The grand jury is a constituent part of the court of oyer and terminer, and the control of that court over its proceedings continues, and may be thus exercised after the grand jury has adjourned. People v. Naughton, 7 Abb. Pr. N. S. 421, 423, 424, 38 How. Pr. 430; State v. Cowan, 1 Head, 280; Clem v. State, 33 Ind. 418. The minutes of evidence taken before the grand jury are a part of the records of the court and remain in the custody

of one of its officers. State v. Little, 42 Iowa, 51. A court always takes judicial notice of its own records in the cause; and this though not brought before it by affidavit. Craven v. Smith, L. R. 4 Exch. 146.

Every pleading, civil or criminal, must contain allegations of the existence of all the facts necessary to support the charge or defense set up by such pleading. An indictment must contain allegations of every fact necessary to constitute the criminal charge preferred by it. As, in order to make acts criminal, they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If, in order to support the charge, it is necessary to show that certain acts have been committed, it is necessary to allege that those acts were in fact committed. If it is necessary to show that those acts, when they were committed, were done with a particular intent, it is necessary to aver that intention. If it is necessary, in order to support the charge, that the existence of a certain fact should be negatived, that negative must be alleged. Bradlaugh v. Reg. L. R. 3 Q. B. 607.

It is also a familiar and elementary principle of criminal pleading that an indictment upon a statute must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it. If the indictment may be true, and still the accused may not be guilty of the offense described in the statute, the indictment is insufficient. So where the definition of an offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species-it must descend to particulars. Boyd v. Com. 77 Va. 52. This rule does not require that the words of the statute should be precisely followed. Words of equivalent import may be substituted, or words of more extensive signification, and which necessarily include the words used in the statute. The decisions are by no means uniform on the subject.

All facts and circumstances stated in the indictment which cannot be rejected as surplusage, must be proved; and all descriptive averments must be strictly proved. 4 Am. & Eng. Enc. Law, title Criminal Procedure.

The rule that a descriptive averment must be strictly proved,

has one qualification in cases of homicide and felonious assault. If the averment is that the homicide was caused, or the assault made, in a designated manner, it is not necessary to prove strictly the details of the means averred to have been used in so committing the offense. If the indictment is for murder by poisoning, and, it is averred, by poisoning with a certain drug, the indictment is supported by proof of poisoning with a different drug. East, P. C., chap. 5, § 107. A charge of felonious assault with a staff will be sustained by proof of such assault with another bruising implement, as a stone,—Sharwin's Case, cited in 1 East, P. C. chap. 5, § 107,—and a charge of strangling by clasping both hands about the throat, is sustained by proof of strangling by placing one hand over the mouth. Rex v. Culkin, 5 Car. & P. 121.

It is necessary to prove matter of description only when the averment, of which the descriptive matter forms a part, is material. Bishop, Crim. Proc. §§ 484, 487; State v. Copp, 15 N. H. 212; State v. Bailey, 31 N. H. 521; Rex v. May, 1 Dougl. 193; Rex v. Pippett, 1 T. R. 235; State v. Dame, 60 N. H. 479, 49 Am. Rep. 331.

The public prosecutor may insert several counts in the same indictment alleging the offenses distinctly and separately, in various ways, to meet the evidence, and the court will not compel an election between them on the trial. Nelson v. People, 5 Park. Crim. Rep. 39. And as was said by Chancellor Walworth, in Kane v. People, 8 Wend. 203: "It is every day's practice to charge a felony in different ways in several counts for the purpose of reaching the evidence as it appears on the trial,” and “if the different counts are inserted in good faith for the purpose of making a single charge, the court will not compel the prosecution to elect." I am not aware that the correctness of this practice has ever, since that time, been questioned. The modern doctrine is, that the refusal to compel an election in such a case cannot be alleged for error, but is a matter of discretion. People v. Baker, 3 Hill, 159; Cook v. People, 2 Thomp. & C. 404. See also Roberts v. People, 9 Colo. 458; Corley v. State, 50 Ark. 305. We will conclude this subject by an extract from the opinion in Goodhue v. People, 94 Ill. 37: "If two or more offenses form part of one transaction, and are such in nature that a defendant may be guilty of both, the prosecution will not, as a general rule, be put to an election, but may proceed under one indictment for

the several offenses, though they be felonies. In misdemeanors the prosecution may, in the discretion of the court trying the case, be required to confine the evidence to one offense, or where evidence is given of two or more offenses, may be required to elect one charge to be submitted to the jury; but in cases of felony it is the right of the accused, if he demand it, that he be not put upon trial at the same time for more than one offense, except in cases where the several offenses are respectively parts of the same transaction."

§ 249. Phillips "Three Rules" Stated.-Fixed rules must be observed for the discovery of truth. Of these the following are, perhaps, the chief:

"1. The actual commission of the crime itself shall be clearly established.

"2. Each circumstance shall be distinctly proved.

"3. When the leading fact or crime is only to be collected from circumstances, a material variation in these will defeat the effect of the whole. For, as each particular is to have an effect upon the general conclusion, a variation in the circumstances may give a different color to the whole transaction. A system of propositions is only true because each of the propositions of which it is composed is true." Phillips, Famous Cases, Circ. Ev. Intro. 35.

250. Characteristics of an Indictment.-The indictment is the formal written accusation of one or more persons of a crime or misdemeanor preferred to, and presented upon their oath by, a grand jury. In strict legal parlance it is not so called until the bill has been found "a true bill." 4 Bl. Com. 302; Archb. Crim. Pr. & Pl. 1, 58, 59. The action of the grand jury upon bills of indictment is very important to individuals and the public. On the one hand, the safety, good order and well-being of society are to be affected for good or evil by it, and, on the other, a person should not be causelessly accused of crime. This should be done upon solemn consideration, and for reasonable apparent cause. It may be of great consequence to the accused whether the accusa tion be well or ill founded. Such bills are not to be treated lightly, but seriously; the action of the grand jury must be based, not merely upon conjecture, suspicion, mere information that they, or a member or members of their body, may know, but upon the testimony of witnesses duly sworn, or other evidence that