Mr. Chief Justice Smith
delivered the opinion of the court.
This was an indictment for murder, tried in the circuit court of Hinds county. It was alleged in the indictment, that the plaintiff in error was the property of John D. Cook. Austin, the subject of the homicide, was likewise a slave, and stated to belong to Figune Lowe. The jury found a verdict of guilty; a motion was made for a new trial, which was overruled, and the.case hence comes into this court.
[576]*576The exceptions chiefly relied on for a reversal of the judgment, refer to the refusal of the court to give the third and fourth instructions Requested on behalf of the prisoner; and the decision of the court on the motion for a new trial. The first of these instructions is in the following words, to wit: “ Unless the jury are satisfied beyond a reasonable doubt, from the proof adduced and allowed to go before them by the court, that the defendant John is the property of John D. Cook, as alleged in the indictment, they must find a verdict of not guilty.” The second instruction laid down the same rule, in reference to the alleged ownership of the deceased.
We will proceed to inquire, in the first place, whether the court erred in refusing to grant these instructions.
By the statute approved the 9th of March, 1850, which was prior to the commission of the offence charged in the indictment, it was enacted, that “ it should not thereafter be necessary to allege in the indictment the name of the owner of any slave guilty of any crime, punishable by the laws of this State with death.”
The history of this statute is familiar to the bar. It was believed by many members of the profession, that it was necessary, to warrant the conviction of a slave charged with a capital felony, that the name of the owner should be alleged in the indictment, and proved as averred. The decision of this court on that point had not been made; to dispel all doubt on the subject the act was passed. Whatever may have been the previous rule, the effect of this statute is clearly to dispense with the necessity of the averment of ownership in indictments against slaves for capital offences; and, of consequence, of the proof of ownership; for unless the averment is made, the proof would be unnecessary. But, we apprehend, the recognized rules of criminal pleading were not designed by the legislature to be changed, except so far as it was made necessary by them, to allege the ownership of a slave capitally charged. In a case, therefore, in which the allegation of ownership is contained in the indictment, it becomes a question, whether such averment is to be regarded as impertinent, or foreign to the charge, and, therefore, to be rejected as surplusage, or as unnecessary and immaterial, but, being made, requires to be proved as alleged.
[577]*577The general rale in regard to the proof of indictments, is, that it is incumbent on the-prosecutor to prove at the trial every fact and circumstance stated in the indictment which is material and necessary to constitute the offence charged. On the other hand, every fact and circumstance laid in the indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial. Arehb. Crim. Plead. 39. These rules are well recognized; but in their application to particular cases, it is not unfrequently somewhat difficult to distinguish between allegations which are material and necessary, and those which may be totally disregarded in the proof. Phillips, in his Treatise on Evidence, (vol. 1, p. 500,) lays down a rule, by which the immateriality of matter alleged in the indictment may be tested. “ If,” says he, “ an averment may be entirely omitted without affecting the charge against the prisoner, it will be considered as surplusage, and may be disregarded in the evidence.” But this test is held applicable only to averments which are not only unnecessary in themselves, but foreign to the charge. As an illustration of this rale, the case of the King v. Minton may be referred to. In that case, which is cited in 2 East, P. C. 1021, the defendant was charged with having committed arson in the night time, and it was proved on the trial that the offence was committed in the day; he was convicted, and the conviction was holden good, for the reason that the averment, which charged the offence to have been committed, in the night, was unnecessary and foreign to the charge, and, therefore, might be disregarded in the evidence. So, upon the same principle, in Rex v. Holt, 5 T. R. 446, it was holden, upon an information for a libel with intent to bring the proclamation of his majesty into contempt, that an averment that divers addresses had been presented to the king on the occasion of such proclamation, was disconnected with the charge, and did not require proof.
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 which might with propriety have been dispensed [578]*578with, but being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge; 3 Phil. Ev. 668, Cow. and Hill’s Ed.; Arch. Cr. Plea. 101. U. S. v. Porter, 3 Day, 286. 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 offence, and cannot be rejected. 2 Starkie, Ev. 1531. So also, on this principle, upon an indictment under the statute of 57 Geo. 3, c. 90, for being found armed with intent to destroy game in a certain -wood, called the old walk, in the occupation of a person named; it was holden, it appearing that the wood had always been called the long walk, and never the old walk, that although it was unnecessary to state the name of the close where the occupation was stated, yet, being stated, it was material, and could not be rejected. Rex v. Owen, 1 Moody, C. C. 118; Rex v. Craven, 1 Russ. & R. 14; Rex v. William Deely, 1 Moody, C. C. 303.
Let us apply this rule to the question whether the averment, that the prisoner was the property of Cook, could be treated as surplusage, and, therefore, disregarded in the evidence.
As we have seen, this allegation was unnecessary. The ownership of the prisoner was in no respect an ingredient in the offence charged, which was complete when it was shown that one human being was wilfully, feloniously, and maliciously killed by another human being. But, the fact of the ownership being alleged, it became a part of the identity of the prisoner; quite as much so as the name under which he was indicted. It was, at least, a statement of, an unnecessary particular, but in connection with, and as descriptive of, that which it was essential to allege. If so, it comes within the principle of the cases above cited; and we do not feel authorized to say that it was unnecessary to prove it.
But it does not follow, because the averment of ownership could not be disregarded in the evidence, that proof in the strictest sense was required. The rule seems to be in regard to averments of this character, (that is, averments in reference to [579]
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Mr. Chief Justice Smith
delivered the opinion of the court.
This was an indictment for murder, tried in the circuit court of Hinds county. It was alleged in the indictment, that the plaintiff in error was the property of John D. Cook. Austin, the subject of the homicide, was likewise a slave, and stated to belong to Figune Lowe. The jury found a verdict of guilty; a motion was made for a new trial, which was overruled, and the.case hence comes into this court.
[576]*576The exceptions chiefly relied on for a reversal of the judgment, refer to the refusal of the court to give the third and fourth instructions Requested on behalf of the prisoner; and the decision of the court on the motion for a new trial. The first of these instructions is in the following words, to wit: “ Unless the jury are satisfied beyond a reasonable doubt, from the proof adduced and allowed to go before them by the court, that the defendant John is the property of John D. Cook, as alleged in the indictment, they must find a verdict of not guilty.” The second instruction laid down the same rule, in reference to the alleged ownership of the deceased.
We will proceed to inquire, in the first place, whether the court erred in refusing to grant these instructions.
By the statute approved the 9th of March, 1850, which was prior to the commission of the offence charged in the indictment, it was enacted, that “ it should not thereafter be necessary to allege in the indictment the name of the owner of any slave guilty of any crime, punishable by the laws of this State with death.”
The history of this statute is familiar to the bar. It was believed by many members of the profession, that it was necessary, to warrant the conviction of a slave charged with a capital felony, that the name of the owner should be alleged in the indictment, and proved as averred. The decision of this court on that point had not been made; to dispel all doubt on the subject the act was passed. Whatever may have been the previous rule, the effect of this statute is clearly to dispense with the necessity of the averment of ownership in indictments against slaves for capital offences; and, of consequence, of the proof of ownership; for unless the averment is made, the proof would be unnecessary. But, we apprehend, the recognized rules of criminal pleading were not designed by the legislature to be changed, except so far as it was made necessary by them, to allege the ownership of a slave capitally charged. In a case, therefore, in which the allegation of ownership is contained in the indictment, it becomes a question, whether such averment is to be regarded as impertinent, or foreign to the charge, and, therefore, to be rejected as surplusage, or as unnecessary and immaterial, but, being made, requires to be proved as alleged.
[577]*577The general rale in regard to the proof of indictments, is, that it is incumbent on the-prosecutor to prove at the trial every fact and circumstance stated in the indictment which is material and necessary to constitute the offence charged. On the other hand, every fact and circumstance laid in the indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial. Arehb. Crim. Plead. 39. These rules are well recognized; but in their application to particular cases, it is not unfrequently somewhat difficult to distinguish between allegations which are material and necessary, and those which may be totally disregarded in the proof. Phillips, in his Treatise on Evidence, (vol. 1, p. 500,) lays down a rule, by which the immateriality of matter alleged in the indictment may be tested. “ If,” says he, “ an averment may be entirely omitted without affecting the charge against the prisoner, it will be considered as surplusage, and may be disregarded in the evidence.” But this test is held applicable only to averments which are not only unnecessary in themselves, but foreign to the charge. As an illustration of this rale, the case of the King v. Minton may be referred to. In that case, which is cited in 2 East, P. C. 1021, the defendant was charged with having committed arson in the night time, and it was proved on the trial that the offence was committed in the day; he was convicted, and the conviction was holden good, for the reason that the averment, which charged the offence to have been committed, in the night, was unnecessary and foreign to the charge, and, therefore, might be disregarded in the evidence. So, upon the same principle, in Rex v. Holt, 5 T. R. 446, it was holden, upon an information for a libel with intent to bring the proclamation of his majesty into contempt, that an averment that divers addresses had been presented to the king on the occasion of such proclamation, was disconnected with the charge, and did not require proof.
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 which might with propriety have been dispensed [578]*578with, but being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge; 3 Phil. Ev. 668, Cow. and Hill’s Ed.; Arch. Cr. Plea. 101. U. S. v. Porter, 3 Day, 286. 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 offence, and cannot be rejected. 2 Starkie, Ev. 1531. So also, on this principle, upon an indictment under the statute of 57 Geo. 3, c. 90, for being found armed with intent to destroy game in a certain -wood, called the old walk, in the occupation of a person named; it was holden, it appearing that the wood had always been called the long walk, and never the old walk, that although it was unnecessary to state the name of the close where the occupation was stated, yet, being stated, it was material, and could not be rejected. Rex v. Owen, 1 Moody, C. C. 118; Rex v. Craven, 1 Russ. & R. 14; Rex v. William Deely, 1 Moody, C. C. 303.
Let us apply this rule to the question whether the averment, that the prisoner was the property of Cook, could be treated as surplusage, and, therefore, disregarded in the evidence.
As we have seen, this allegation was unnecessary. The ownership of the prisoner was in no respect an ingredient in the offence charged, which was complete when it was shown that one human being was wilfully, feloniously, and maliciously killed by another human being. But, the fact of the ownership being alleged, it became a part of the identity of the prisoner; quite as much so as the name under which he was indicted. It was, at least, a statement of, an unnecessary particular, but in connection with, and as descriptive of, that which it was essential to allege. If so, it comes within the principle of the cases above cited; and we do not feel authorized to say that it was unnecessary to prove it.
But it does not follow, because the averment of ownership could not be disregarded in the evidence, that proof in the strictest sense was required. The rule seems to be in regard to averments of this character, (that is, averments in reference to [579]*579matter which it is unnecessary to allege, but being made, it becomes necessary to prove them,) that precise proof is never required, except when the subject of the averment is a record, a written agreement, and perhaps an express contract. Gould, Pl. 164, 165. This is the doctrine in reference to the pleadings in civil proceedings. The same rule applies in criminal cases, except that in the latter, courts will be more strict in requiring proof of matters alleged than in the former. United States v. Porter, 3 Day’s Rep. 286.
If this rule was applicable to the proof in regard to the averment of ownership, the third and fourth instructions above quoted were improper. They laid down the rule, that, before the jury could convict the prisoner, they should be satisfied beyond a reasonable doubt of the fact of ownership, as charged in the indictment. This was requiring too high a degree of evidence in reference to a question of property, even admitting the necessity of strict proof in regard to the ownership of the prisoner. We think, therefore, that the court did not err in refusing to give the said instructions.
We will now proceed to notice the question arising upon the decision of the circuit judge, in overruling the motion for a new trial.
We do not deem it necessary, it might perhaps be improper, for us to go into a minute examination of the testimony upon which the prisoner was convicted. It is sufficient to remark, that the whole of the evidence offered in support of the charge was circumstantial; that no one fact distinctly proved, was, in itself, sufficient to raise more than a very slight presumption, if any at all, of the guilt of the prisoner; and that all of the circumstances proved on the trial, when united, were, upon well recognized principles, insufficient to create such a presumption of his guilt as would warrant a conviction.
We, therefore, reverse the judgment, remand the prisoner, and award a new trial in the court below.