
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1807.
    The State v. Vill.
    The very words of an act of assembly, on which an indictment is founded, need not be scrupulously employed, if a recital is not professed to be given; but if other words are employed, they must exactly agree in sense with the words of the act of assembly.
    Motion in arrest of judgment. Defendant was found guilty, before Smith, J., in Orangeburgh District, on an indictment upon the stat. 22 and 23 Ch. 2 c. 7, for burning a sawmill. The words used in the indictment did not strictly correspond with the words of the statute. The words, employed in the indictment, were, “ maliciously, feloniously, voluntarily, and willingly.” The words of the statute (see P. L. 80) are, “ maliciously, unlawfully, and willingly.”
    _ . „ . „ , . Clifton, and Loan, in support ox the motion in arrest,
    argued, that in charging an offence according to statute law, the very phraseology of the statute must be used. That no other words, or words synonimous, or tantamount, will do. The very words of the statute in describing the offence, and no other, ought to be used. The word unlawfully is omitted, and the words felo-niously, and voluntarily, introduced in its stead. Though the latter word may be rejected as surplusage, yet the word omitted, being material, vitiates the indictment.
    Starke, solicitor, eontra.
    
    The difference of the phraseology, in the expression of the statute and the expression of the indictment, is immaterial. The words used in the indictment are much stronger, and mean all that the words of the statute do, and more. The objection is, that the word unlawfully is not employed in the description of the offence. It is conceded, that the offence must be charged to be unlawful, or to have been unlawfully committed ; but it is denied that it is not so charged. An act which is charged to be done maliciously, and feloniously, cannot but be charged to be done unlawfully. Cited Cro. Ch. 135. 2 Haw. sec. 106, p. 352.
   Per curiam.

The offence is charged in the indictment substantially and sufficiently pursuant to the statute ; and although there is not a perfect similarity in the words, there is no variance in the sense, nor can the variance create any doubt in the operation or construction of the law.

Motion discharged.  