WEBBER, Justice.
On appeal. Defendant was convicted by jury verdict of the offense of reckless homicide.
Omitting the formal portions, the indictment charged:
“That on the ninth day of October, 1966, in the Town of Brunswick, County of Cumberland and State of Maine, the defendant Lester E. Grant, did, after having consumed a certain quantity of intoxicating liquor, then and there with reckless disregard for the safety of others, and in particular for the safety of one Harold Austin, operate a certain un-inspected and unregistered motor vehicle in which the said Harold Austin was riding as a passenger, to wit: a truck, in a general southerly direction over and along Harpswell Road, so-called, a public highway in said Brunswick which high[233]*233way was well known to the defendant as one having a great many sharp curves and turns and upon which highway the State Highway Commission, Secretary of State and Chief of State Police, acting jointly, having fixed the maximum rate of speed to be then and there forty miles per hour, and signs giving notice of such speed having been erected by the State Highway Commission and then and there appearing on said highway, and while so operating on said highway, and while so operating and driving, did operate and drive at speeds of sixty and seventy miles per hour causing said motor vehicle to travel from the right lane of said highway to the left lane and while so situated proceeded southerly at the said speeds aforesaid on a curve and grade in said highway and after speeding down said grade the said Lester E. Grant then and there again caused the said motor vehicle to again swerve to the left of the center of said highway and to go off the left side of the highway and then further travelled back to the right of the center of the highway and while then and there so operating at said speeds aforesaid so operated and steered said motor vehicle so that it rolled over and then struck with great force and violence a tree off the right side of the highway, and as a result of such disregard for the safety of others and in particular as a result of the reckless disregard for the safety of said Harold Austin, he, the said Lester E. Grant did thereby then and there cause the death of said Harold Austin on the ninth day of October, 1966, a time which is within one year after the aforesaid reckless acts of the defendant.” (Emphasis ours)
Defendant seasonably moved (a) to dismiss the indictment for failure “to set forth and charge a crime punishable by law” and for failure “to fairly set forth with sufficient clarity the act or acts of recklessness with which the defendant is charged, so as to enable him to fairly prepare a defense thereto;” and (b) alternatively, to strike from the indictment as sur-plusage the words “after having consumed a certain quantity of intoxicating liquor” and the words “uninspected and unregistered.” The presiding Justice ordered stricken the words “uninspected and unregistered” but declined either to dismiss the indictment or to strike the other phrase. Before trial commenced, the prosecuting attorney disclosed his intention to offer proof that defendant was under the influence of intoxicating liquor at the time of his alleged operation of the motor vehicle. The Court indicated its intention to permit the introduction of such evidence if offered. Counsel for defendant spread upon the record his objection grounded upon the failure to charge “influence” and upon claimed surprise and prejudice. During the trial when the occasion arose, counsel for defendant renewed his objection to the introduction of evidence relating to defendant’s condition with respect to sobriety. Thus the issue was carefully preserved for review upon appeal.
The indefiniteness of the words “certain quantity” readily lends itself to an argument in the nature of reductio ad absurdum. Proof that defendant had consumed a teaspoonful of brandy or an ounce of table wine, would have met the requirements of the allegation while contributing nothing to the proof of the ultimate fact of reckless homicide. A charge of consumption of an undefined quantity of intoxicating liquor falls far short of charging intoxication or impairment or influence therefrom which might be an important contributing factor in a reckless homicide case. Without inclusion of the challenged phrase, the indictment charges as underlying facts recklessly excessive speed and a reckless failure to maintain control of the vehicle, all resulting in a fatal accident. In short, the indictment effectively charges reckless homicide and in no way depends for validity upon the allegation pertaining to the consumption of intoxicating liquor. We cannot indulge in speculation, surmise or conjecture as to what may have prompt[234]*234ed the Grand Jury to employ this phrase. We are concerned only with the allegation as it is worded and its effect upon the defendant’s ability to prepare an adequate defense.
In State v. Warner (1967 Me.) 237 A.2d 150 we restated the familiar rule that the indictment must adequately inform the defendant as to the factual nature of the charge in order that he may be able to defend and in addition to make use of the conviction to sustain a plea of double jeopardy, should the occasion arise. In Warner the indictment properly alleged that the defendant “was then and there under the influence of intoxicating liquor” as a fact contributing to reckless homicide.
In State v. Charette (1963) 159 Me. 124, 127, 188 A.2d 898 we noted that, although the indictment need not constitute a “recital of evidence,” it must contain a “full and complete” accusation as to the “substance, nature or manner of the offense.”
And in State v. Houde (1955) 150 Me. 469, 471, 114 A.2d 366, where the charge was reckless driving (no homicide involved) we held that the indictment must allege the underlying facts “from which the State will seek to prove the ultimate fact of reckless driving.” We recognized in Houde as one essential for the protection of the defendant, quoting from State v. Strout (1933) 132 Me. 134, 136, 167 A. 859, that “a defense may not be rested upon the hypothesis of one thing, with the hazard of surprise by evidence, on the part of the government, of an entirely different thing.” Applying this rule to the instant case, the indictment gave the defendant no notice or warning that the government charged or would seek to prove that he was impaired or intoxicated as a result of his consumption of intoxicating liquor.
In State v. Child (1962) 158 Me. 242, 252, 182 A.2d 675 we treated as “merely surplusage” language which “neither added to nor detracted from the sufficiency of the indictment.” The same test was applied in State v. Vermette (1931) 130 Me. 387, 156 A. 807.
In State v. Mottram (1959) 155 Me. 394, 401, 156 A.2d 383 we adopted the language of the text in 27 Am.Jur. 679, Sec. 118 which in effect defined matters of substance as those which relate to the “nature and grade of the offense charged.” The revised text now found in 41 Am.Jur.2d 994, Sec.
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WEBBER, Justice.
On appeal. Defendant was convicted by jury verdict of the offense of reckless homicide.
Omitting the formal portions, the indictment charged:
“That on the ninth day of October, 1966, in the Town of Brunswick, County of Cumberland and State of Maine, the defendant Lester E. Grant, did, after having consumed a certain quantity of intoxicating liquor, then and there with reckless disregard for the safety of others, and in particular for the safety of one Harold Austin, operate a certain un-inspected and unregistered motor vehicle in which the said Harold Austin was riding as a passenger, to wit: a truck, in a general southerly direction over and along Harpswell Road, so-called, a public highway in said Brunswick which high[233]*233way was well known to the defendant as one having a great many sharp curves and turns and upon which highway the State Highway Commission, Secretary of State and Chief of State Police, acting jointly, having fixed the maximum rate of speed to be then and there forty miles per hour, and signs giving notice of such speed having been erected by the State Highway Commission and then and there appearing on said highway, and while so operating on said highway, and while so operating and driving, did operate and drive at speeds of sixty and seventy miles per hour causing said motor vehicle to travel from the right lane of said highway to the left lane and while so situated proceeded southerly at the said speeds aforesaid on a curve and grade in said highway and after speeding down said grade the said Lester E. Grant then and there again caused the said motor vehicle to again swerve to the left of the center of said highway and to go off the left side of the highway and then further travelled back to the right of the center of the highway and while then and there so operating at said speeds aforesaid so operated and steered said motor vehicle so that it rolled over and then struck with great force and violence a tree off the right side of the highway, and as a result of such disregard for the safety of others and in particular as a result of the reckless disregard for the safety of said Harold Austin, he, the said Lester E. Grant did thereby then and there cause the death of said Harold Austin on the ninth day of October, 1966, a time which is within one year after the aforesaid reckless acts of the defendant.” (Emphasis ours)
Defendant seasonably moved (a) to dismiss the indictment for failure “to set forth and charge a crime punishable by law” and for failure “to fairly set forth with sufficient clarity the act or acts of recklessness with which the defendant is charged, so as to enable him to fairly prepare a defense thereto;” and (b) alternatively, to strike from the indictment as sur-plusage the words “after having consumed a certain quantity of intoxicating liquor” and the words “uninspected and unregistered.” The presiding Justice ordered stricken the words “uninspected and unregistered” but declined either to dismiss the indictment or to strike the other phrase. Before trial commenced, the prosecuting attorney disclosed his intention to offer proof that defendant was under the influence of intoxicating liquor at the time of his alleged operation of the motor vehicle. The Court indicated its intention to permit the introduction of such evidence if offered. Counsel for defendant spread upon the record his objection grounded upon the failure to charge “influence” and upon claimed surprise and prejudice. During the trial when the occasion arose, counsel for defendant renewed his objection to the introduction of evidence relating to defendant’s condition with respect to sobriety. Thus the issue was carefully preserved for review upon appeal.
The indefiniteness of the words “certain quantity” readily lends itself to an argument in the nature of reductio ad absurdum. Proof that defendant had consumed a teaspoonful of brandy or an ounce of table wine, would have met the requirements of the allegation while contributing nothing to the proof of the ultimate fact of reckless homicide. A charge of consumption of an undefined quantity of intoxicating liquor falls far short of charging intoxication or impairment or influence therefrom which might be an important contributing factor in a reckless homicide case. Without inclusion of the challenged phrase, the indictment charges as underlying facts recklessly excessive speed and a reckless failure to maintain control of the vehicle, all resulting in a fatal accident. In short, the indictment effectively charges reckless homicide and in no way depends for validity upon the allegation pertaining to the consumption of intoxicating liquor. We cannot indulge in speculation, surmise or conjecture as to what may have prompt[234]*234ed the Grand Jury to employ this phrase. We are concerned only with the allegation as it is worded and its effect upon the defendant’s ability to prepare an adequate defense.
In State v. Warner (1967 Me.) 237 A.2d 150 we restated the familiar rule that the indictment must adequately inform the defendant as to the factual nature of the charge in order that he may be able to defend and in addition to make use of the conviction to sustain a plea of double jeopardy, should the occasion arise. In Warner the indictment properly alleged that the defendant “was then and there under the influence of intoxicating liquor” as a fact contributing to reckless homicide.
In State v. Charette (1963) 159 Me. 124, 127, 188 A.2d 898 we noted that, although the indictment need not constitute a “recital of evidence,” it must contain a “full and complete” accusation as to the “substance, nature or manner of the offense.”
And in State v. Houde (1955) 150 Me. 469, 471, 114 A.2d 366, where the charge was reckless driving (no homicide involved) we held that the indictment must allege the underlying facts “from which the State will seek to prove the ultimate fact of reckless driving.” We recognized in Houde as one essential for the protection of the defendant, quoting from State v. Strout (1933) 132 Me. 134, 136, 167 A. 859, that “a defense may not be rested upon the hypothesis of one thing, with the hazard of surprise by evidence, on the part of the government, of an entirely different thing.” Applying this rule to the instant case, the indictment gave the defendant no notice or warning that the government charged or would seek to prove that he was impaired or intoxicated as a result of his consumption of intoxicating liquor.
In State v. Child (1962) 158 Me. 242, 252, 182 A.2d 675 we treated as “merely surplusage” language which “neither added to nor detracted from the sufficiency of the indictment.” The same test was applied in State v. Vermette (1931) 130 Me. 387, 156 A. 807.
In State v. Mottram (1959) 155 Me. 394, 401, 156 A.2d 383 we adopted the language of the text in 27 Am.Jur. 679, Sec. 118 which in effect defined matters of substance as those which relate to the “nature and grade of the offense charged.” The revised text now found in 41 Am.Jur.2d 994, Sec. 181, while recognizing that no rule has been generally accepted and applied, notes that there is support for the proposition that “the statement of every fact which must be proved to make the act complained of a crime is a matter of substance, and that all else * * * is formal.” This was the theory underlying the decision in State v. Harvey (1928) 126 Me. 509, 140 A. 188 where the words “at Belfast” were struck leaving as the remaining charge that the offense occurred in the County of Waldo. The Court said, “It appearing, therefore, that the respondent was charged with having committed the offense within the county of Waldo, the State was not obliged under the indictment as drawn to prove it was committed at Belfast. * * * The words, ‘at Belfast,’ therefore may be treated as surplusage and a matter of form and not of substance.” So also in State v. Mayberry (1859) 48 Me. 218, 237 the Court was considering the effect upon a conspiracy indictment of a particular averment. It was then stated, “The alleged sale to Lawrence is therefore wholly immaterial. It does not contradict any averment in the indictment; it is not descriptive of the identity of the charge, or of anything essential to it) nor does it in any degree tend to show that no offense was committed. It may be rejected, as it is a general rule that whenever an allegation may be wholly struck out of an indictment, without injury to the charge, it may be rejected as surplusage.” (Emphasis ours).
M.R.Crim.P., Rule 7(d) provides: “The court on motion of the defendant may strike surplusage from the indictment or [235]*235information.” Glassman, Maine Practice, Page 83, Commentary § 7.13 states:
“On motion of the defendant, under Rule 7(d), the court may strike surplus-age from the indictment or information. While it has long been recognized that surplusage may be disregarded, unless it creates an ambiguity, this rule provides a protection for the defendant in that irrelevant, immaterial, or prejudicial allegations contained in the indictment or information may be stricken upon motion of the defendant. It also carries out the general purpose of the rules to assure that a criminal pleading be a short, simple, concise, and plain statement of the offense charged. It provides a means whereby a defendant can avoid the potential prejudicial effect of excessive but unnecessary allegations. While the rules provide no other means whereby an indictment may be amended, and thereby recognize the general principle that an indictment ordinarily may not be amended, by moving to have surplusage stricken from an indictment the defendant waives his right to prevent amendment of the indictment.”
Although the Rule is stated in discretionary terms, it has been recognized that where the surplusage, if not stricken, would be harmful and prejudicial to the defendant, it would constitute an abuse of discretion and reversible error to deny defendant’s motion to strike. In Torphy v. State (1918) 187 Ind. 73, 118 N.E. 355 the indictment contained an allegation of a prior conviction of a similar offense in no way material to the offense charged. A motion to strike was denied. Holding the denial to be error, the Court said, “The fact of a prior conviction was not, under the issues in this proceeding, a circumstance which could properly be brought to the attention of the jury in any manner as a part of the state’s case * * * and all reference thereto should have been omitted from the indictment.” The Court held that it could serve no other purpose than to prejudice the jury against the defendant. See also State v. Parris (1911) 89 S.C. 140, 71 S.E. 808.
Under the circumstances cases interpreting and applying F.R.Crim.P., Rule 7(d) become meaningful. In United States v. Garrison (1958) D.C.Wis., 168 F.Supp. 622, 624, the Court said, “Motions to strike as surplusage will be granted only where it is clear that the allegations complained of are not relevant to the charges contained in the indictment and are inflammatory and prejudicial.” And in United States v. Saporta (1967) D.C.N.Y., 270 F.Supp. 183, 186, it is stated, “Consequently, the inclusion of the Triangle stock transaction is not only surplusage but is also highly prejudicial, and the allegations pertaining to this transaction must be stricken pursuant to Rule 7(d), Fed.Rules Crim.Proc., 18 U. S.C.A.” So also in United States v. N.Y. Great A. & P. Tea Co., (1943) 5 Cir., 137 F.2d 459, 462 we read, “We agree with the district judge and with the appellees that there are many allegations in the indictment which are irrelevant and unnecessary to the charging of the offense and which, if not designed to be, are in fact inflammatory and prejudicial, and that the defendants are entitled to relief against them.” In a dictum found in State v. Casson (1960) 223 Or. 421, 354 P.2d 815, 820, the Court noted, “But the state may not allege noncriminal acts in order to open the door to damaging evidence.”
We are satisfied that the words, “after having consumed a certain quantity of intoxicating liquor,” added nothing to an otherwise sufficient charge of reckless homicide. By the definitions set forth above they constituted surplusage. They were, however, by their very nature in a case involving the operation of a motor vehicle inflammatory and prejudicial. We conclude that the defendant’s motion to strike should have been granted. It logically follows that evidence tending to prove the impairment or intoxication of the defendant was improperly received, no such charge having been lodged against him. The defendant could and did justly claim [236]*236technical surprise and a lack of adequate opportunity to prepare a defense.
The entry will be
Appeal sustained. Remanded for amendment of the indictment upon the motion to strike, and for a new trial upon the indictment thus amended. So ordered.
POMEROY, J., did not sit.
DUFRESNE and WEATHERBEE, JJ., concurring in part — separate opinion.