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69 Miss. 395

Tyler v. State

Mississippi Supreme Court

Decided October 15, 1891

Mississippi Supreme Court · decided 1891-10-15

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. Appellant was convicted on a charge of unlawful retailing. The opinion states the case. But one sale is charged, a sale to two. The proof was of sale to one. This was a fatal variance. State v. Barron, 37 Vt., 57. The like rule applies as iu cases of larceny, where ownership of the property is laid in one, and the evidence shows a joint ownership by such person with another.

Good law ✅— No negative treatment on recordhow we know

Decided 1891-10-15

How this case has been cited

Cited by 7 later decisions — most recently May 2019

7 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Cooper, J.,

¶1delivered the opinion of the court.

¶2There is a fatal variance between the allegations of the indictment and the evidence. The indictment charges that the defendant, in violation of law, sold certain intoxicating liquors to James Robertson and Henry Briner. The evidence is of a sale to Briner alone.

¶3It was unnecessary to charge to whom the sale' was made, since any sale was unlawful; but by charging that the sale for which the indictment was preferred was the one (or some one) to Robertson and Briner, the unnecessary averment became essential, as one descriptive of the offense charged. In the case of John, a slave, v. The State, 24 Miss., 569, the indictment charged that the accused was the property of John D. Cook, and it was held that, although the averment was unnecessary, and need not have been made, yet, being inserted in the indictment, it became essential as descriptive of the person of the accused, and must be proved.

¶4*397In speaking of the rule that immaterial averments may be rejected as surplusage, the court said: “But this rule has never been held to apply to allegations which, however unnecessary, are nevertheless connected with and descriptive of that which is material; or, in other words, to averments winch might, with propriety, have been dispensed with, but, being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge, as, for example, an indictment for stealing a black horse will not be supported by proof that the horse was of some other color, for the allegation of color is descriptive of that which is legally essential to the offense, and cannot be rejected.”

¶5In Dick v. The State, the indictment unnecessarily charged that the defendant was -a negro. The evidence showed him to be a mulatto. The variance was held to be fatal. 30 Miss., 631.

¶6"Where the entire averment of which the descriptive matter is a part, is surplusage, it may be rejected, and the descriptive averment need not be proved. 1 Bishop on Crim. Proc., § 488. But it must be proved as charged, wherever, if the person, thing, act, place or time to which it refers was struck from the indictment, no offense would be charged. Ib., §486.

¶7Judgment reversed.

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