Court of Appeals. Albany,

June, 1864.

*Denio,*Oh. J., and *Davies, Wright, Selden, Ingraham, Hogéboom, Mullin*and *Johnson,*Judges.

#### George Crichton, Plaintiff in Error, *v.*The People, Defendants in Error.

A count in an indictment, which omits to state the time and place at which the alleged offense was committed, is fatally defective.

A general verdict of guilty will he sustained, although there be a defective count in the indictment, if there he also a good count to which the evidence is applicable.

Whatever is alleged in a count, which is not necessary to constitute the offense, may be rejected as surplusage.

An averment in an indictment, descriptive of the offense charged, if made under a *videlicit,*cannot be rejected as surplusage.

On the trial of an indictment for attempting to procure an abortion, evidence to prove that the prosecutrix, who had been examined as a witness for the people, had had sexual intercourse with ojher persons than the defendant, is inadmissible.

The plaintiff in error was tried and convicted at the St. Lawrence County Court of Sessions of an attempt to procure an abortion.

The first count of the indictment charged “that George Crichton, late of the town of Oswegatchie, in the county of St. Lawrence, heretofore, to wit: on the twenty-second day of June, in the year of our Lord one thousand eight hundred and sixty-one, with force of arms, &c., at the town of Oswegatchie, in the said county of St. Lawrence, and on divers other days and times, did then and there advise and attempt to procure, and did procure one Elizabeth Dixon to take certain medicines, drugs and substances, to wit: certain pills, known as “ Dr. James Clark’s Female Pills,” which the said George Crichton then and there produced for the purpose and with the intent of procuring the miscarriage of her, the said Elizabeth Dixon, she, the said Elizabeth Dixon, then and there being a pregnant *356woman, contrary to the form of the statute in such case made and provided.”

The second count was as follows:

“And the jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to wit: at the time and place aforesaid, one Elizabeth Dixon was then and there a pregnant woman; that the said George Crichton, for the purpose and with intent to cause and produce the miscarriage of her, the said Elizabeth Dixon, she being such pregnant woman as aforesaid, did advise and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances or pills to the jurors aforesaid unknown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York.

“ B. H. VARY, *District Attorney.”*

The defendant pleaded “not guilty.”

The trial took place in March, 1863, before William C. Brown, county judge, and the justices of the sessions.

After the empannel.ing of the jury, the counsel for the defendant moved to quash and strike out the second count of the indictment, on the ground that it did not allege any time or place where the offense was committed. The court denied the motion, and the defendant’s counsel excepted.

On the cross-examination of Elizabeth Dixon, the prosecutrix, she testified, among other things, that she had been'examined as a witness in proceedings in bastardy against George Crichton, as the father of her child. She was then asked the following question: “Did you not testify on that trial that you never had had sexual intercourse with any other man than George Crichton, and was he not discharged in those proceedings on the ground that he was not the father of your child?” The question was objected to by the district attorney and excluded by the court, and the defendant’s counsel excepted.

George Lytle was called as a witness for the defense, *357and asked tlie following question: “ Did you have sexual connection with the witness, Elizabeth Dixon, frequently during the spring and summer of 1861?” This was also objected to and excluded and the defendant’s counsel excepted.

The case was removed to the Supreme Court, where it was argued before Potter, Bocees, James and Roseebans, Justices, and'affirmed in January, 1864.

The opinion of the Supreme Court was as follows:

Bocees, J. I believe it to be well settled on principle and authority, that the place where and the time when the alleged offense was committed must be stated in the indictment. As regards the place, this is necessary in order to show jurisdiction, especially if the offense be made such by statute. It is declared to be essential to charge every issuable fact to have happened at some place within the county to which the venire may be awarded. *{The King*v. *Hollará,*5 *Term,*607; *Barb. Oñm. Law,*280, 281, *and cases cited;*2 *Hale, 178,*180; *Qhit. Orim. Law, vol.*4 *pp.*193, 4, 5, *and cases cited.)*The reason of the rule is that it may appear that the offense was committed within the jurisdiction of the court. It is not necessary to prove the precise time and place as laid in the indictment, if shown to have occurred within the jurisdiction of the court, except when the place is the essence of the crime. (As to precision in indictments, see *HasJdns*v. *The People,*16 *H. Y.,*344, '348-9; *The People*v. *Allen,*5 *Benio,*76; *The People*v. *State,*5 *Hill.,*411; *Manly*v. *The People.*7 *NI Y,*295.) I think it very plain that the second count in the indictment is fatally defective, for the reason that it omits to state the place where the alleged offense was committed. The offense charged in this count is, that the prisoner advised and procured Elizabeth Dixon to taire certain drugs, &c., for the purpose and with the intent to «ause and produce a miscarriage. At what time and place *358such advice and procurement were bestowed is not averred. True, it is charged that he did advise and procure her, the said Elizabeth, *then and*there, to take, &c. But the words “ then and there” refer or apply only to the time and place when and where she should *take*the drugs and medicines; not to the time and place when and where he gave the advice. As is well said by the counsel for the prisoner, it does not appear but that the offense was committed in Canada or elsewhere, out of the jurisdiction of the court. Were this the only count in the indictment, I should have no hesitation in pronouncing it defective, and the conviction erroneous.

But a general verdict of guilty will be upheld if there be one good count to which the evidence can properly apply. (4 *Park. Grim PI.,*26; 1 *ibid,*246; *Ibid,*202; 8 *Wend., ■*210; 3 *Hill,*194; 1 *John.,*320.) It remains, therefore, to be seen whether the evidence will support the first count.

In this count the prisoner is charged with having advised Elizabeth Dixon “to take certain medicines, drugs and substances, to wit: certain pills known as 1 Dr. James Clark’s Female Pills,’ which the said George Crichton then and there produced, for the purpose and with the intent of procuring the miscarriage,” &c. The words “ which the said George Crichton then and there produced,” may be disregarded or deemed expunged as surplusage. The production of the medicine by the prisoner constituted no part of the offense declared by the statute; Mere surplusage will not vitiate an indictment, nor need it be proved if stated. *(Lohman*v. *The People,*1 *Gom.,*379.) The material charge then is, that he advised and procured Elizabeth Dixon to take certain medicine, drugs and substances, to wit: certain pills known as “Dr. James Clark’s Female Pills,” for the purpose and with the intent of procuring a miscarriage. Will the evidence sustain the verdict of guilty on this charge?

*359The evidence of Elizabeth is, that the prisoner procured her a bottle of Dr. Clark’s female pills, and told her to take them and she would be all right, or it would make her all right. It was also proved that he bought, about the time mentioned by the witness, at Ralph’s store, a bottle of Sir James Clark’s female pills. Elizabeth also testified that he told her that he bought the medicine at Ralph’s store. In codnection with this, however, it should be stated that she testified that he procured for her other medicines besides Dr. Clark?s pills, and to this the prisoner’s statement may have had application.

Had the indictment preferred a general charge, that the prisoner advised and procured Elizabeth Dixon to take certain medicines, pills and substances, for the purpose and with the intent, &c., without specifying what they were under a vidélicit, I think the offense would be proved by this evidence, for the crime would then have been established, and what the medicine or substance was called would have been immaterial. The proof would show that the prisoner advised the woman to take a medicine, drug or substance, with the unlawful intent denounced and made criminal by the statute, and the name of the substance would have been of no importance whatever.

But can that which is averred in the indictment under a *vidélicit*descriptive of the offense charged, be held to be surplusage, and hence immaterial ? This question is answered in the negative by the decision in *The People*v. *Jackson*(3 Denio, 101). The court there held that when the indictment does not stop with the general charge, but proceeds under a *vidélicit*to explain or render more certain by description, the description becomes a material part of the charge. It is the office of a *vidélicit*to restrain or limit the generality of preceding words, and in some instances to explain them. If what precedes be matter of direct averment and material, then what is stated under the *vidélicit*will be deemed material and traversable, for *360all material facts, whether stated with or without a *vide*Ucit, are traversable. And if traversable, they must be proved, inasmuch as nothing is legally traversable by either party except what the adverse party may be required to prove. In this case what preceded the *videlicit*constituted the substantial offense, and was matter of direct averment, and what followed by way of limitation or explanation was consequently material and traversable. • The public prosecutor was therefore bound to prove the charge as laid, according to the additional explanation or description, which, under the averment, became material. But has he not done so? The general charge is clearly proved, as is also the description or explanatory part in its substance. It is proved that the prisoner purchased pills, known as “ Sir James Clark’s Female Pills,” and about that time gave pills to Miss Dixon, advising her to take them for the purpose of procuring a miscarriage, telling her they were Dr. Clark’s female pills. This evidence tends to establish the offense charged in its particulars of description, and is not open to the objection that it proves another or different offense. There is no substantial variance between the indictment and the proof given in support of it.

No point is made by the counsel for the prisoner as to the admissibility or rejection of evidence.

A new trial must be denied, the proceedings of the ■ court of sessions affirmed, and the case remitted, in order that judgment may be pronounced on the verdict.

A writ of error was then brought, removing the case into the Court of Appeals.

*Myers & Magone,*for plaintiffs in error.

*B. H. Vary*(District Attorney), for the people.

The opinion of the court was delivered by

Ingraham, J.

There was no error in excluding the inquiry put to Lytle as to his connection with Elizabeth *361Dixon. It was immaterial whether any other person had connection with her or not. The offense charged was the advising means to produce an abortion, and would have been the same whether the prisoner or Lytle was the father of the child. The main question in the case is whether the court erred in refusing to strike out the second count in the indictment, and if such refusal was erroneous, whether the verdict can be sustained notwithstanding such refusal. The objection to the second count is that there is no time or place averred at which the offense is charged to have been committed, so as to show that it was within the jurisdiction of the court. This count charges that at a certain time and place the said Elizabeth Dixon was pregnant, and that the defendant, with intent to cause and produce her miscarriage, did advise and procure her then and there to take, &c. The objection to this count is that the words “then and there” should have been inserted prior to the allegation of advice and procurement, and not as to the taking and use of the medicines. The ordinary interpretation of this count would be that the advice was given at the time when Elizabeth was averred to be there, and when it was averred that she was to take the medicine advised and procured to be taken. It was all in the same tense and related to the same moment of time. The charge was that she was then pregnant; that the prisoner advised and procured her then and there (that is, at the time before mentioned, viz: when she was there pregnant), to take the medicines. All the acts charged relate to the same time, and the application of the rule that certainty to a common intent is sufficient, would be enough to sustain this count. But conceding that the second count was defective, that would not be fatal if the first count was good. *(People*v. Willy, 3 *Hill,*194; *Kane*v. *The People,*8 *Wend.,*210; *The People*v. *Gilkinson,*4 *Parker,*26, 29.), The first count is conceded by the prisoner’s counsel to be good, but he contends that *362the evidence could not apply to it. The averment is that the prisoner advised Elizabeth Dixon to take certain medicines, drugs and substances, to wit: certain pills known as “Dr. James Clark’s Female Pills,” and the evidence was that he brought a bottle of Dr. Clark’s female pills and told her to take them, &c. There can be no doubt, if the nature of the medicine had not been stated under a *videlicit,*the- count would have been amply sufficient, and the evidence would have sustained it. It has been held that whatever is not necessary to constitute the offense may be treated as surplusage. This is particularly the case where the offense is statutory, and in such a case it is always ' sufficient to charge the offense in the words of the statute, although more particularity is required in bringing the offense within it; whereas, in this case more words are used than are necessary to make out the offense. I think the remaining may be rejected as surplusage. Various cases to this effect may be found in 2 *Wharton Cr. Tr.,*626. But I think the allegation was substantially proven if it was not to be regarded as surplusage. The evidence showed the prisoner to have done everything averred in this count, excepting that the pills recommended were Dr. Clark’s pills instead of Dr. James Clark’s pills, and there was also evidence to .show that the prisoner had purchased Sir James Clark’s pills at the place where he told Elizabeth Dixon he had purchased them. If it had been necessary to show that the pills he recommended were Dr. James Clark’s pills, the evidence was ample to submit to the jury the question whether it was this particular medicine the prisoner recommended, and upon this point their finding is against the prisoner. There •is no ground for interfering with the judgment of the general term.

Judgment affirmed, and proceedings remitted.