Mr. Ingersoll. Well, I will just read this because I do not want any doubt about it in anybody's mind.
The Court. I have no doubt about it.
Mr. Ingersoll. Very well:
"If a recovery is to be had, it must be secundum allegata et probata; and the rule is one of entire inflexibility in respect to all such descriptive averments of material matters. The cases upon this point, many of which are collected in the case of State vs. Copp, 15 N. H., 2F5, are quite uniform."
Now, if the Court please, I not only read this with regard to the overt acts, but with regard to the description of the crime itself—the conspiracy. I will then refer to State against Copp, 15th New Hampshire. I will also refer to the case of Rex against Whelpley, 4th Carrington & Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive; also to the United States against Denee and others, 3d Wood, page 48, and a case under this exact section, 5440:
"It seems clear that the statute upon which this indictment is based is not intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy by requiring him to aver some overt act done in pursuance of the conspiracy and make such act a necessary ingredient of the offence." The court then refers to the Commonwealth against Shed, 7th Cushing, 514, and continues—in that case it was different:
"That difficulty does not exist here, for the overt act is part of the offence, and must be proved as laid in the indictment."
So I find that the court passed upon this very question, and I wish to call the attention of the Court again to one line on page 961 of the record in this case:
"But in all cases the principle is simply this: That where the act which was done in pursuance of the conspiracy is described in the indictment it must be described with accuracy and completeness, and if there is a variance in the proof it is fatal to the prosecution."
When I come to that part as to the necessity of describing offences then I will cite the Court to some other authorities in connection with these.