"It is a most general rule that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge can ever be rejected. * * * As an absolute and natural identity of the claim or charge alleged with that proved consists in the agreement between them in all particulars, so their legal identity consists in their agreement in all the particulars legally essential to support the charge or claim, and the identity of those particulars depends wholly upon the proof of the allegation and circumstances by which they are ascertained, limited and described."
No matter whether the description was necessary or unnecessary:
"To reject any allegation descriptive of that which is essential to a charge or a claim would obviously tend to mislead the adversary. * * * It seems, indeed, to be a universal rule that a plaintiff or prosecutor shall in no case be allowed to transgress those limits which in point of description, limitation, and extent he has prescribed for himself; he selects his own terms in order to express the nature and extent of his charge or claim, he cannot therefore justly complain that he is limited by them. * * * As no allegation therefore which is descriptive of any fact or matter which is legally essential to the claim or charge can be rejected altogether, inasmuch as the variance destroys the legal identity of the claim or charge alleged with that which is proved, upon the same principle no allegation can be proved partially in respect to the extent or magnitude where the precise extent or magnitude is in its nature descriptive of the charge or claim."
Nothing can be plainer than that. I refer also to Starkie on Evidence, 7th American edition, vol. 1, page 442. There he says:
"In the next place it is clear that no averment of any matter essential to the claim or charge can ever be rejected, and this position extends to all allegations which operate by way of description or limitation of that which is material."
I also cite Russell on Crimes, 9th American edition, vol. 3, page 305, and Roscoe's Criminal Evidence, 7th edition, page 86.
I now call the attention of the Court to the case of Rex vs. Pollman and others, 2 Campbell, 239. I may say before reading this decision that, in my judgment, so far as the scheme of this indictment is concerned, it should end this case:
"This was an indictment against the defendants which charged that they unlawfully and corruptly did meet, combine, conspire, consult, consent and agree among themselves and together, with divers other evil-disposed persons, to the jurors unknown, unlawfully and corruptly to procure, obtain, receive, have and take, namely, to the use of them, the said F. P., J. K. and S. H., and of certain other persons to the jurors likewise unknown, large sums of money, namely, the sum of two thousand pounds, as a compensation and reward for an appointment to be made by the lord's commissioners of the treasury of our lord the king of some person to a certain office, touching and concerning His Majesty's customs, to wit, the office of a coast waiter in the port of London, through the corrupt means and procurement of them, the said F. P., J. K. and S. H., and of certain other persons to the jurors unknown, the said office then and there being an office of public trust, touching the landing and shipping coastwise of divers goods liable to certain duties of custom."
The indictment went on and stated various overt acts in furtherance of the conspiracy.
"There were several other counts which all laid the conspiracy in the same way."