¶1On Motion for Rehearing.
¶2Opinion by
¶34. In a petitnon for a rehearing, it is maintained by counsel for the State that the defendant was charged in the indictment with having unlawfully sold intoxicating liquors; that the testimony incorporated in the bill of exceptions shows that the accusation was conclusively established; and that the judgment rendered discloses a conviction thereof, and, such being the case, any reference in the opinion to a gift of alcoholic beverage was a misconception of the questions involved.
¶4The caption of the indictment states that the defendant is accused of the crime of selling intoxicating liquors. The charging part of .the accusation, however, so far as deemed material, is as follows: “The said A1 Emmons did … wrongfully and unlawfully sell, barter and give away to one Guy Harris intoxicating liquors,” etc. The “caption” of an indictment is the preamble, which is designed to indicate in a general way the kind of crime alleged to have been committed and to show that the trial court has jurisdiction thereof. 10 Enc. PI. & Pr. 419. A mistake in the caption in designating the correct name of the offense is not a fatal defect, for it is the sufficiency of the averments of the charging part of an indictment that constitutes the gist of the accusation. State v. Sweet, 2 Or. 127; State v. Jarvis, 18 Or. 360 (23 Pac. 251) ; State v. Taylor, 50 Or. 449 (93 Pac. 252.)
¶55. The caption will therefore be disregarded, and the charging part of the accusation, under consideration, will be re-examined to ascertain if it contains sufficient averments to uphold the judgment. As a preliminary matter, however, it is proper to consider whether or not the words “give away,” which form a part of the predicate of the *358charge, can be eliminated, for if they can be rejected the remaining words of the assertion, viz., “sell” and “barter,” will undoubtedly be sufficient, without averring that such disposition of the intoxicating liquor was made with a purpose of evading the provisions of the local option law then in force in Wallowa County. An allegation of an indictment which is not necessarily descriptive of the offense may be treated as surplusage and rejected without vitiating the accusation, if sufficient averments remain to constitute a valid charge. Burchard v. State, 2 Or. 78; State v. Abrams, 11 Or. 169 ( 8 Pac. 327) ; State v. Tom Louey, 11 Or. 326 (8 Pac. 353) ; State v. Horne, 20 Or. 485 (26 Pac. 665) ; State v. Lee, 33 Or. 506 (56 Pac. 415) ; State v. Humphreys, 43 Or. 44, (70 Pac. 824.)
¶66. The practice prevailing in this State permits setting forth in an indictment facts constituting the commission of a statutory offense as stated in the accusation herein, and authorizes a conviction if either of such facts is established at the trial. Thus, in the case at bar, if the testimony had proved beyond a reasonable doubt that the defendant either sold or bartered, or gave away intoxicating liquors, a verdict of guilty as charged might have been returned, and a valid judgment could have been rendered thereon. A gift of intoxicating liquor having been specifically alleged in the indictment, the organic law of the State, which guarantees to a party accused the right to demand the nature and cause of the .charge, Constitution of Oregon, Article I, § 11, permits the defendant to insist that the accusation shall set forth all the facts necessary to constitute the commission of the offense in the particular manner stated, so as to enable him to prepare his defense. The averment that the defendant did give away intoxicating liquor is necessarily descriptive of one form of the offense charged, as much so as the allegation of a sale and barter of alcoholic beverage, and, such being the case', the words “give *359away” could not have been treated as surplusage and rejected without vitiating the accusation, though if either of the words “sell” or “barter” had remained the indictment would have been sufficient.
¶77. The indictment practically contains three separate counts, which are necessarily descriptive of the offense, severally charging: (1) A sale of intoxicating liquor; (2) a barter of such drink; and (3) a giving 'away thereof. Each of these charges was required to be complete, and as it is alleged that the defendant “gave.away” intoxicating liquor, and as the law does not make a gift thereof a misdemeanor, unless some subterfuge has been adopted whereby a pretended donation is practically a sale, it was necessary to allege that intoxicating liquor was given away with a purpose of evading the provisions of the local option law then in force in Wallowa County, Oregon.
¶8Because a sale of intoxicating liquor is sufficiently alleged and conclusively established, the proof of that fact does not cure the defective allegation of a gift of such beverage, which is a statement of a material fact relating to the manner of committing the offense, thus showing that the indictment was deficient in this respect and therefore insufficient in all particulars.
¶9It follows from these considerations that the petition must be denied, and it is so ordered.
¶10Reversed: Rehearing Denied.