Brayton, J.
The first point made by the defendant in the argument is, that this indictment does n.ot charge any offence described in the statute upon which the indictment was framed. Chapter 73, section 1, of the Revised Statutes, declares all grog-.shops, tippling-shops, or buildings, places, or tenements, used for the illegal sale or keeping of intoxicating liquors, or where intemperate, idle, dissolute, noisy, or disorderly persons are in the habit of resorting, to be common nuisances; and section 2d provides, that an'y person keeping or maintaining any such conimon nuisance, shall be punished as therein provided. This statute declares that such place, building, or tenement, kept in either of the modes described, is a common nuisance, and the keeper thereof punishable. The indictment charges the de-fendant with keeping a place and tenement in each and every
of these modes; — that he kept it as a grog-shop, as a tippling-shop, and also, that he kept it for the illegal sale of intoxicating liquors, and for the resort of idle, dissolute, noisy, and intemperate persons. But because he is charged with having kept it in all the modes, the argument is, that it is not charged to have been kept in any one. The defendant might have been charged with keeping the place solely for the illegal sale of intoxicating liquors, adding only the allegation of time and place ; and in that case, it is admitted, that the indictment would have been sufficient to charge the keeping of a nuisance under this act. But it is not the less charged, because there is also a charge of keeping it in another mode. The objection here is, not that several statute offences are charged in the same count, but that no one of them is. The same may be said of the charge of keeping a grog-shop, or of a tippling-shop, and of the charge of keeping a place resorted to by idle, noisy, and intemperate persons. Each of these modes of keeping is alleged. Either of them would constitute the offence created by the statute. In fact, however, but one offence is here charged, — one nuisance, though it is charged that the offence was committed in each of several modes. The act contemplates, and the indictment contemplates, but one offence, but several modes in which it may be committed, either of which constitutes the offence. The indictment is framed upon the statute, and in alleging the offence, follows the language of the act creating it, in all the contemplated modes. This is allowable in criminal pleading; and it is held sufficient to allege the commission of the offence in the language of the act.
The second point made by the defendant is, that the indictment does charge an offence at common law; and he excepts, because the judge who tried this cause declined so to direct the jury. It was quite sufficient that the indictment charged a statute offence; and the judge was quite right in directing the jury, that if they found the statute offencS proved, it was not material whether any common-law offence was, or was not, alleged, — that the inquiry was unnecessary.
Another matter of exception is, that the judge refused to
charge the jury, that in order to convict the defendant, it was necessary for the government to prove, not only that the building, place, or tenement, was used for the illegal sale or keeping of intoxicating liquors, but also, that intemperate, idle, dissolute, noisy, or disorderly persons were in the habit of resorting there; but did charge the jury, that it was not necessary to prove both, and that proof of either was sufficient.
This exception assumes, and so the, argument of the defendant is, that all the allegations of the indictment as to the mode of-keeping are material and necessary to be proved, in order to a conviction. The strictness, of even the criminal law does not extend to this. It is true, that as a general rule, no allegation, whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge, can ever be rejected, but must be proved, as laid ; and therefore, in larceny, where it is necessary to allege the ownership of the. property, the name of the owner must be truly stated, and proved as laid. So, in burglary, it 'is necessary to state the ownership of thé house; and it' must be stated truly, and proved as laid, or there will be a variance. And in larceny, where the indictment describes the property stolen with unnecessary minuteness, so as to distinguish it from all others, it has been held, that it must be proved to come within that description; and this is held, because the pleader undertakes to identify it by minute description, and makes the description material; and the instance is given, of the allegation of a black- horse, when the word black might have been omitted, but being inserted as descriptive, it was held that it must be proved.
.There is however another rule equally universal; —that such allegations as may be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are considered as surplusage, and may be disregarded in evidence;
United States
v. Howard, 3 Sumner, 15 ; that '_it is only necessary to prove so much of that which is alleged as is legally necessary to constitute the offence charged; and under this rule many examples are given. Under this last rule the case of the defendant will fall. It is not neces
sary to prove the charge to the whole extent laid.
2
Russ, on Crimes, 786. On a charge of setting fire to a barn in the night-time, it was held not necessary to prove it to be done in the night-time; that not being- legally necessary to constitute the offence. So, in an indictment for obtaining goods by false pretences, where several false pretences are alleged, it is held only necessary to prove one, if the goods were obtained by means of that one; and the others may be rejected. So, on a charge of composing, printing, and publishing a libel, it is not necessary to prove that it was
composed
by the defendant.
Rex
v.
Hunt, 2
Camp. 583;
Rex
v.
Williams,
Ib. 546. Very many other cases might be cited, all proceeding upon the same principle; and see
State
v.
Nelson,
29 Maine, 329.
In the case at bar, all that was necessary to constitute the offence, was the keeping of the building, place, or tenement for the illegal sale or keeping of intoxicating liquors ; and this being proved, and that it was maintained by the defendant, the offence is proved against him; and all the other allegations, not being necessary to the offence, may be disregarded in evidence.
Another ground of exception is, that the judge did not charge the jury, though desired so to do, that in order to convict the defendant, the facts proved and relied upon by the government must be of such a character that their existence could not reasonably be reconciled with any other hypothesis than that of the guilt of the defendant. This proposition, as the bill of exceptions states, was assented to by the court, of course in the presence of the jury; and therefore must have gone to them in connection with the language afterwards used by the judge in his direction to them.
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Brayton, J.
The first point made by the defendant in the argument is, that this indictment does n.ot charge any offence described in the statute upon which the indictment was framed. Chapter 73, section 1, of the Revised Statutes, declares all grog-.shops, tippling-shops, or buildings, places, or tenements, used for the illegal sale or keeping of intoxicating liquors, or where intemperate, idle, dissolute, noisy, or disorderly persons are in the habit of resorting, to be common nuisances; and section 2d provides, that an'y person keeping or maintaining any such conimon nuisance, shall be punished as therein provided. This statute declares that such place, building, or tenement, kept in either of the modes described, is a common nuisance, and the keeper thereof punishable. The indictment charges the de-fendant with keeping a place and tenement in each and every
of these modes; — that he kept it as a grog-shop, as a tippling-shop, and also, that he kept it for the illegal sale of intoxicating liquors, and for the resort of idle, dissolute, noisy, and intemperate persons. But because he is charged with having kept it in all the modes, the argument is, that it is not charged to have been kept in any one. The defendant might have been charged with keeping the place solely for the illegal sale of intoxicating liquors, adding only the allegation of time and place ; and in that case, it is admitted, that the indictment would have been sufficient to charge the keeping of a nuisance under this act. But it is not the less charged, because there is also a charge of keeping it in another mode. The objection here is, not that several statute offences are charged in the same count, but that no one of them is. The same may be said of the charge of keeping a grog-shop, or of a tippling-shop, and of the charge of keeping a place resorted to by idle, noisy, and intemperate persons. Each of these modes of keeping is alleged. Either of them would constitute the offence created by the statute. In fact, however, but one offence is here charged, — one nuisance, though it is charged that the offence was committed in each of several modes. The act contemplates, and the indictment contemplates, but one offence, but several modes in which it may be committed, either of which constitutes the offence. The indictment is framed upon the statute, and in alleging the offence, follows the language of the act creating it, in all the contemplated modes. This is allowable in criminal pleading; and it is held sufficient to allege the commission of the offence in the language of the act.
The second point made by the defendant is, that the indictment does charge an offence at common law; and he excepts, because the judge who tried this cause declined so to direct the jury. It was quite sufficient that the indictment charged a statute offence; and the judge was quite right in directing the jury, that if they found the statute offencS proved, it was not material whether any common-law offence was, or was not, alleged, — that the inquiry was unnecessary.
Another matter of exception is, that the judge refused to
charge the jury, that in order to convict the defendant, it was necessary for the government to prove, not only that the building, place, or tenement, was used for the illegal sale or keeping of intoxicating liquors, but also, that intemperate, idle, dissolute, noisy, or disorderly persons were in the habit of resorting there; but did charge the jury, that it was not necessary to prove both, and that proof of either was sufficient.
This exception assumes, and so the, argument of the defendant is, that all the allegations of the indictment as to the mode of-keeping are material and necessary to be proved, in order to a conviction. The strictness, of even the criminal law does not extend to this. It is true, that as a general rule, no allegation, whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge, can ever be rejected, but must be proved, as laid ; and therefore, in larceny, where it is necessary to allege the ownership of the. property, the name of the owner must be truly stated, and proved as laid. So, in burglary, it 'is necessary to state the ownership of thé house; and it' must be stated truly, and proved as laid, or there will be a variance. And in larceny, where the indictment describes the property stolen with unnecessary minuteness, so as to distinguish it from all others, it has been held, that it must be proved to come within that description; and this is held, because the pleader undertakes to identify it by minute description, and makes the description material; and the instance is given, of the allegation of a black- horse, when the word black might have been omitted, but being inserted as descriptive, it was held that it must be proved.
.There is however another rule equally universal; —that such allegations as may be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are considered as surplusage, and may be disregarded in evidence;
United States
v. Howard, 3 Sumner, 15 ; that '_it is only necessary to prove so much of that which is alleged as is legally necessary to constitute the offence charged; and under this rule many examples are given. Under this last rule the case of the defendant will fall. It is not neces
sary to prove the charge to the whole extent laid.
2
Russ, on Crimes, 786. On a charge of setting fire to a barn in the night-time, it was held not necessary to prove it to be done in the night-time; that not being- legally necessary to constitute the offence. So, in an indictment for obtaining goods by false pretences, where several false pretences are alleged, it is held only necessary to prove one, if the goods were obtained by means of that one; and the others may be rejected. So, on a charge of composing, printing, and publishing a libel, it is not necessary to prove that it was
composed
by the defendant.
Rex
v.
Hunt, 2
Camp. 583;
Rex
v.
Williams,
Ib. 546. Very many other cases might be cited, all proceeding upon the same principle; and see
State
v.
Nelson,
29 Maine, 329.
In the case at bar, all that was necessary to constitute the offence, was the keeping of the building, place, or tenement for the illegal sale or keeping of intoxicating liquors ; and this being proved, and that it was maintained by the defendant, the offence is proved against him; and all the other allegations, not being necessary to the offence, may be disregarded in evidence.
Another ground of exception is, that the judge did not charge the jury, though desired so to do, that in order to convict the defendant, the facts proved and relied upon by the government must be of such a character that their existence could not reasonably be reconciled with any other hypothesis than that of the guilt of the defendant. This proposition, as the bill of exceptions states, was assented to by the court, of course in the presence of the jury; and therefore must have gone to them in connection with the language afterwards used by the judge in his direction to them. The subsequent directions do not contradict this proposition stated by counsel, though it was not in terms repeated to them by the judge, after giving his assent in their presence to its correctness.' He said, that if the testimony in the case was as consistent with the innocence of the defendant as with his guilt, they must acquit, if otherwise, they need not; but if, nevertheless, they had any reasonable doubt upon the whole evidence as to the guilt of the defendant, he was entitled to an acquittal. We do
not think the jury could have misunderstood this, or could have supposed that the judge intended to deny that the proposition, assénted to by him to be correct, was one by which they were to be guided ; and they must have understood, that although the evidence was not entirely consistent with his innocence, yet it must leave them without reasonable doubt of the defendant’s guilt. We think the jury had substantially the direction asked, though it may not have been in the form requested.
Exceptions
overruled,
cmd the cause remanded to the court of common pleas.