Cases on criminal procedure, selected from decisions of English and American courts; with special reference to criminal procedure in Texas

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1921 edition. Excerpt: ...Crim. Stats., Sec. 1980, form No. 2. Affirmed.9 FULFORD v. STATE. (Supreme Court of Georgia. 1874. 50 Ga. 591.) Twppe, J.10--The indictment in this case not only charged the defendant, as principal in the second degree, in being present, aiding and abetting the chief perpetrator of the alleged offense, but proceeded further ind specified the acts whereby the aiding and abetting were done. The prosecuting counsel, on motion, struck these descriptive averments from the indictment, over the objection of defendant. We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? Or, rather, when do averments which might have been omitted become material--or, at least, so enter into the indictment as framed that they cannot be stricken or rejected as surplusage? Starkie on Evidence, Vol. 3, p. 1539, says it is a most general rule that no allegation, which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected; and on page 1512, same volume, makes it more specific by restating the rule thus: "The position that descriptive averments cannot be rejected extends to all allegations which operate by »Acc: Bolton v. State, 41 App. 642, 57 S. W. 813 (1900); Dent v. State, 43 App. 126. 151, 65 S. W. 627 (1901), citing many cases. i"The statement of facta is omitted. way of description or limitation of that which is material." Bishop says: "If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily...