Drake v. State

• Decision Date: 29 October 1895
• Parties: DRAKE v. STATE.
• Court: Indiana Supreme Court

145 Ind. 210

41 N.E. 799

DRAKE

v.STATE.

Supreme Court of Indiana.

Oct. 29, 1895.

Appeal from circuit court, Decatur county; J. K. Ewing, Judge.

Ralph Drake was convicted of murder in the second degree under an indictment for murder in the first degree, and appeals. Affirmed.

Hacker & Remy and Cortez Ewing, for appellant. W. A. Ketcham, Chas. A. Korbly, S. H. Spooner, Merrill Moores, D. A. Myers, W. M. Waltman, and M. D. Ewing, for the State.

MONKS, J.

Appellant was tried upon an indictment charging the crime of murder in the first degree and found guilty of murder in the second degree. There was a motion to quash the indictment, which was overruled, and this is complained of as error. The part of the indictment upon which the question is presented is as follows: “That Ranph Drake, on the 1st day of June, 1893, at and in the county of Bartholomew, and state aforesaid, did then and there, unlawfully, feloniously, purposely, and with premeditated malice, kill and murder one Ida Ward, by then and there, feloniously, purposely, and with premeditated malice, shooting at and against and thereby mortally wounding the said Ida Ward, with a certain deadly weapon, commonly called a revolver, then and there loaded with gunpowder and leaden ball, which said revolver he, the said Ralph Drake, then and there had and held in his hands, of which mortal wound she, the said Ida Ward, then and there instantly died.” It is earnestly insisted by appellant “that it is not certain from the wording of the indictment whether it is Ranph Drake or Ralph Drake who is charged with having committed the offense.” It is not required that more be charged in an indictment than is necessary to adequately and accurately express the offense; and, when unnecessary averments or aggravations are introduced, they can be treated as surplusage and disregarded. It is a well-settled rule of criminal pleading, however, that no allegation, though it may not have been necessary, can be rejected as surplusage if it is descriptive of the identity of that which is legally essential to the case. 1 Bish. Cr. Proc. § 485. Thus, in an indictment for stealing a horse, it is alleged to be a black horse. The color need not be stated, but, if stated, cannot be rejected as surplusage, because it is made descriptive of the particular animal alleged to be stolen. In such case the color must be proven, and a variance in the proof of color is fatal. But allegations not essential to constitute the offense, which might be omitted without affecting the charge against the defendant and without detriment to the indictment, are considered as mere surplusage, and may be entirely disregarded. Kennedy v. State, 62 Ind. 136;Mayo v. State, 7 Tex. App. 342; Rex v. Morris, 1 Leach, 109; Rex v. Redman, 1 Leach, 477; Reg. v. Crespin, 11 Q. B. 913, 63 E. C. L. 912; Tifft v. State, 23 Miss. 567;Greeson v. State, 5 How. (Miss.) 42;Com. v. Randall, 4 Gray, 36;Com. v. Hunt, 4 Pick. 252; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Farrow v. State, 48 Ga. 30; 1 Bish. Cr. Proc. §§ 481, 485, 487; Whart. Cr. Pl. § 158.

If a name is immaterial,-that is, if it is unnecessary to the statement of the offense,-it may be rejected as surplusage, and will not vitiate the indictment. Kennedy v. State, supra; Rex v. Morris, supra; Mayo v. State, supra; Com. v. Hunt, supra; U. S. v. Howard, supra; Farrow v. State, supra. In Com. v. Hunt, 4 Pick. 252, the indictment charged that Alva Hunt, etc., in and upon one Peddy Harvey, etc., did make an assault, and her, the said Peddy Hunt, did beat, wound, and illtreat, the said Peddy Harvey, etc., to ravish, etc. The clause, “and her, the said Peddy Hunt, then and there did beat, wound, and illtreat,” was rejected as surplusage. In Com. v. Randall, supra, the charge was that “the defendant, with force and arms, in and upon Lucy Ann Keach, in the peace of the commonwealth then and there being an assault did make, and her, the said Lucy Ann Keach, with a ferule, which said Randall then and there in his right hand had and held, did strike divers grievous and dangerous blows upon the back and 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 Leach then and there did and committed], to her great damage, and against the peace of said commonwealth.” It was held that the mistake was clearly a clerical one; that, after striking out the part inclosed in brackets, which is the defective portion of the allegation, it charges an assault and battery upon Lucy Ann Keach. Bigelow, J., speaking for the court in that case, said: “Courts of justice are disposed to treat as surplusage all erroneous and improper averments in complaints and indictments, when the residue of the allegation sets out the offense charged in technical language and with substantial certainty and precision. The authorities are numerous and decisive of this point.” In Rex v. Morris, supra, the indictment charged “that Francis Morris the goods and chattels 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 last mentioned to have been feloniously stolen, taken, and carried away. The prisoner was found guilty It was claimed that the conviction could not be supported, for the reason that the indictment charged two different persons, one of the name of Francis, and the other of the name of Thomas. The point was reserved for the opinion of the 12 judges. Here was an error in using the word “Thomas” instead of “Francis,” and the judges held that the words “the said Thomas Morris” might be struck out as surplusage, and the indictment would be sensible and good without them.” The case of Rex v. Redman, supra, is to the same effect, except that the words rejected were not the name of the defendant. In Mayo v. State, supra, the indictment, omitting the usual formal portion, was as follows: “That Eli Mayo, on the 30th day of July, 1874, in the county of Houston aforesaid, in and upon one Ella Gann, a female, then and there being of the age of eight years, unlawfully, feloniously, and willfully, an assault did make; and that the said Eli Mayo, then and there being an adult male and over the age of fourteen years, did then and there, unlawfully, willfully, and feloniously, and by force, threats, and fraud then and there by him, the said Eli May, used and practiced upon said female, Ella Gann, without the consent then and there of said Ella Gann, ravish and have carnal knowledge of the said female, Ella Gann, by then and there having sexual intercourse with her, the said Ella Gann, against the peace and dignity of the state.” There was a motion to quash, which was overruled. The court said: “Looking now to the indictment as copied hereinabove, we find that, if all that portion which we have italicized be treated as surplusage and stricken out, the indictment as eliminated will be amply sufficient to charge the offense. If they are immaterial and unnecessary, then, as we have seen, they may be treated as surplusage and rejected, and should be. With this unnecessary portion rejected as surplusage, the motion to quash was without substantial foundation, and the court, therefore, did not err in overruling it.” In Kennedy v. State, supra, the indictment, after charging John Kennedy with the crime of murder, continued as follows: “And so the jurors aforesaid, upon their oaths aforesaid, say that the said Frank Kennedy, the said Clarence Hensley, in the manner and by the means aforesaid, unlawfully, feloniously, willfully, and with premeditated malice, did kill and murder, contrary to the form...