The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-06-27

was marked j. B. Kirkland sit was shown on the
trial that Isaac b. Kirkland was the owner Of the
the notes and other effects contained in the pack
age, and described in the Indictment, as being
the property OF j. b. Kirkland. Ii is not proved
that that j. B. Kirkland and Isaac B. Kirkland are
not one and the same person and the owner of the
effects stolen. That Kirkland was known bv the
name of J. B. Kirkland is evident FROM the fact
that he described in the information. But it 10
not shown that he was known to the Attorney
that of J. B. Kirkland, and being the resident of
another State we can not presume that the Attorney
General knew him by any other name than that
averred in the information
1t is only when the party injured cannot be de-
scrihed by name that it becomes necessary to state
mat he Is person unknown. But with the evil
dence before him that the aggrieved party was
known by the name of ]. B. Kirkland, the Attor-
ney General could not with proprety truth have
averred the property in the notes to be in person
unknown, on The contrary the rules of criminal
pleading absolutely required that he should have
averred it to be in a person whom the evidence in
his possession described as J. B. Kirkland
We think that the circumstances of this case
tested by the stricest rules of criminal pleading,
bring it within the exceptions to the general rule
which require the name of the injured party TO be
accurately set forth, and authorize the averment
made in the information. LIST Chitty C. L., D.
2l2 ct seq.
2. The information alegers that several different
notes were stolen, but save the value of but two
of them. The only authority to which we have
been referred in support of the proposition that sem
tence could not he passed on general verdict upon
an indictment of this kind, establishes, think,
the reverse of the proposition l Mass. Rep. A5.
II there had been several counts, instead of one,
some of which averred value TO the articles stolen
and other which did not, it to be settled that
after general verdict, ju lpment could have been
given upon the good counts. When there is but
one count, those parts of it which defective bv
reason of the failure to aver the value may be re-
j'ced as surplusage, without affecting the validity
of The instrument, and the conviction as to the re-
mainder will be good.
g. The next objection is that the description of
the property stolen is defective. 1t is contended
that the notes should have been described in the
precise terms of the statute. The words of the act
are the robbery or larceny of bank notes and ob-
cations" &c, 'shall be punished" &c. The
avermenis in the information are one note of the
Bank of Nobile,' - '' one note of The Bank of Ala
hama, "''of the goods and chatteis," &c. Although
in general ii Is necessary 10 use the precise techni
cal expressions of the statute in describing the Of
fence, variance which does nnt alter the sense of
a material part of the statute will not vitiate the
indi ctment. The terms " bank notes - and notes
of a bank are, in ordinary parlance, synonymous.
Both are understood to mean the notes emitted as
the circulation Of the bank: In the case of the
Commonwealth Us. Richards, it was held that a
deviation from the terms of the statute, similar to
that which occurs in the information under consid
Grafton did not vitiate the Indictment. | Mass.
Rep. 1873. We think that conclusive of the
point presented.
4. The last objection urged we also think unte-
nabe. In the case of " the people u.s. Holbrook,"
Is Johrson's Rep. 90, an averment Of the properly
in the terms used in the present information was
held good. The Court said !" 1t is sufficient to lay
in an Indictment that the notes or instruments mem
toned in the are the goods and chdttels of
any person who is entitled to them; and that the
word chattels denotes and signifies, when applied
as in this case, property and ownership" The
Judgment of the District Court is therefore affirmed
with cosls.