3 Stark., 1531. "In the case before us the subject-matter is a pine log marked in a particular manner described. The marks determine the identity, and are, therefore, matter purely of description. It would not be easy to adduce a stronger case of this character. It' might have been sufficient to have stated that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log we are quite clear that the defendant could not be convicted of taking an oak or a birch log. The offence would be the same; but the charge to which the party was called to answer, and which it was incumbent on him to meet, is for taking a log of an entirely different description. The kind of timber and the artificial marks by which it was distinguished are descriptive parts of the subject-matter of the charge which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken was a different one from that charged in the indictment; and the defendant could be legally called upon to answer only for taking the log there described. In our judgment, therefore, the jury were erroneously instructed that the marks might be rejected as surplusage; and the exceptions are accordingly sustained."
I also cite the case of the State against Clark, 3 Foster, New Hampshire, 429:
"Indictment for fraudulently altering the assignment of a mortgage. The indictment set forth the mortgage, and also the assignment, as it was alleged to have been originally made from Miles Burnham to Noah Clark, the respondent; and alleged that the assignment was signed, sealed, delivered, witnessed by two witnesses, and duly and legally recorded at length, in the registry of deeds of Rockingham county, on the 18th of September, 1844. It then alleged that this assignment was fraudulently altered on the 28th of June, 1844, by inserting the letter 'S' in two places, between the words 'Noah' and 'Clark,' so that the assignment originally made to Noah Clark, after the alteration appeared as if it were made to Noah S. Clark.
"On trial the records of deeds were produced, and there was found a record of the assignment purporting to be made to Noah S. Clark, the record bearing date September 18, 1844, but there was no record of any assignment to Noah Clark. The respondent's counsel objected that this evidence did not support the allegations of the indictment. The forgery was alleged to have been committed on the 28th of June, 1844, and the court admitted evidence that Miles Burnham, who executed the assignment, being applied to about the 30th of July, 1846, for a loan of money upon a mortgage of the same property, declined to make the loan unless he was satisfied there was no mortgage of conveyance of the land by Noah Clark, and the person who drew the assignment searched the records with Burnham, and found no such deed on record. This evidence was objected to, but was understood to be introductory to other material and pertinent evidence, and was therefore admitted; but no such other evidence, to which it was introductory, was offered.
"The jury found a verdict of guilty, which the defendant moved to set aside."
Upon that the court says:
"We are not able to look upon this statement that the deed was duly recorded as well as witnessed and acknowledged according to the statute, in any other light than as part of the description of the deed and conveyance which the defendant was charged with altering. We are, therefore, of opinion that the evidence upon this point did not sustain the indictment."
Now, if the statement that the mortgage was recorded was such a material part of the description that a failure to prove the record as charged was fatal, so, I say, in these overt acts, if they charge that a thing was done or a paper filed on a certain day and it turns out not to be so, that is a fatal variance, and under that description in the indictment the charge cannot be substantiated. I refer to the case against Northumberland, 46 New Hampshire, 158, and also to the King against Wennard, 6 Carrington & Paine, 586.
Clark vs. Commonwealth, 16 B., Monroe, 213:
"The doctrine seems to have been well settled in England and this country, that in criminal cases, although words merely formal in their character may be treated as surplusage and rejected as such, a descriptive averment in an indictment must be proved as laid, and no allegation, whether it be necessary or unnecessary, more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage."