
    Peter vs. The State.
    An indictment against a slave for a rape on a free white woman need not alledge the ownership of such slave, qnd if alledged and disproved, the variance is not fatal.
    Peter was indicted on the 19th day of November, 1844, in the Circuit Court of Williamson, for an attempt to commit an assault on Minerva Shelby, a free white woman, on the 29th day of May preceding.
    « The indictment charges, that the offence was committed by “Peter, a negro slave, the property of John Blackman, late of Williamson county.”
    The case was submitted to a jury, on the plea of not guilty, Judge Maney presiding, during the November term, 1844.
    „ The State proved, that the prosecutor, who was the father of Minerva Shelby, hired the slave Peter of John Blackman, who, as witness believed, was the owner of the slave.
    The defendant introduced Hays Blackman, who was the son of John Blackman. He stated, thathis father, about seven years previously, had conveyed the slave Peter to him in trust for his children; that his. father had a lifetime estate in said Peter; that John Blackman died on 3rd day of November, 1844, and that he made a will directing his estate to be sold and divided amongst his children.
    The defendant was convicted. A motion for a new trial having been made and overruled, he was sentenced to be executed. He appealed. . •
    
      A. Ewing, for plaintiff in error.
    
      Attorney General, for the State.
    It is urged that there is a variance between the allegation and the proof.
    It is to be observed, that this offence is created by statute, and that nothing in the statutes creating the offence is seen to create the necessity of an allegation of ownership. The increased punishment inflicted by statute does not find its justification in the fact that the defendant is owned by any one, or is a slave; but on the fact that he is a “negro or mulatto.” The increased punishment is based by the statute on caste, or race, or color. The punishment would be the same if the offence was committed by a free negro. There is no necessity for inserting in the indictment allegations which do not constitute any part of the offence. This allegation is surplusage, and may be rejected. It would have been sufficient to have charged the offence against “Peter, a negro.”
    Upon what grounds of reason or convenience in the administration of the law can it be insisted, that an allegation which constitutes no part of the offence shall be inserted in the indictment? All that would seem necessary to be added, either on allegation or proof to the case of a white man, would be that pointed out in the statute, to wit, that defendant was a negro, The requiring an allegation of ownership and proof in accordance therewith, would only throw obstacles in the way of a successful administration of criminal law, without furnishing the defendant with additional means of manifesting his innocence, or security against punishment again for the same offence.
    The fact that A owns the slave, or B owns him, does not alter the character of the crime, or affect the nature or extent of the punishment. It is the same in either event. Russel], page 658, note 2, declares, that all that is necessary to be averred in the indictment are the material facts which constitute the crime, and which are necessary to enable the defendant to avail himself of the verdict and judgment in case he should be again charged with the same offence.
    The facts which make up the offence are three. 1st. The assault. 2nd. The intent. 3rd. The caste of defendant. And these are all that are necessary to be averred or proved.
    
    The defendant, on a second indictment for the same offence, would only find it necessary to aver and prove that he was Peter, the negro tried and convicted on the indictment for the same offence.
    If in all cases of rape by slaves the ownership be necessary to be alledged and proved, a new element of difficulty is thrown in, to wit, questions of title, which are calculated to defeat the administration of justice, without answering any useful purpose.
    No case can be found where allegations not constituting a part of the offence are required to be made, solely to protect the defendant; for the law has only required that the crime should be stated, and that the defendant should make out his identity by additional averments and proof.
    In reference, then, to allegations not necessary for defence, or to make out the crime, which are inserted in the indictment, they are to be considered surplusage, and may be rejected. 2 Leacb, 678; 2 Russell, 568.
    In the case of Rex vs. Hunt, Ellenboroúgh says the distinction runs through the whole of criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed the substantive crime therein specified.”
    There are a numerous class of cases connected with this subject which do not apply to this case. In these- cases it has been regarded as proper to state, and state correctly, the person upon whom the wrong has been inflicted, as who is murdered, robbed, or whose property has been stolen. In cases of robbery, however strong cases of variance in fact, in allegations and proof, are presented, in which the variance was not regarded as fatal in law. The defendant Sumner was found guilty of robbery in a field near the highway. The jury found the defendant guilty of robbery, but not near the highway. The conviction was sustained. -2 Russell, 695. So Pye was charged with robbing Robert in the dwellinghouse of Wil-day. It was committed in a house,. but it did not appear who was the owner. The conviction was affirmed. Russell, 695. See also Healy’s case, 11 Moody, Í. So of breaking a house in the night. It was proved to have been broken in the day. It was held no variance, there being no difference in the punishment by English statute. So for having a die unlawfully in possession made of steel. It was made of iron. Held, no variance.
    In all these cases the averments were in some degree descriptive of the offence; yet they were rejected as immaterial, and not necessary to be inserted in the indictment, or if inserted and disproved, yet ruled no variance.
    ~ In the case now on hand, the averment of the ownership of the defendant does not touch the nature of the offence. The indictment states the whole name of a slave, Peter. It stales him to be a negro — then a slave — then there is superadded the averment that he is the property of John Blackman. This is a detailed-personal description of the defendant; more remote and •more immaterial than misnomer. This is wholly a different case from one where the defendant is charged with larceny of a black horse and it turned out that the horse taken was white; or where he is charged with having ravished A B and he is proved to have ravished C D, or where it is charged that he stole the property of E when it was the property of H. The general doctrine is based on the idea of deluding the defendant with one case charged and another proved. This does not have any force in this case, for the defendant is arrested - and charged with committing a specific offence on the body of a specific person; and he cannot complain that he is deluded by a misdescription of himself. This detailed description of himself cannot affect his personal identity, nor his crime.
    If this objection was available at all,-it would only be regarded as matter in abatement.
    
      In civil and criminal cases misnomer must be pleaded in abatement. 11 Mass. 76, 397; 10 do. 205; 4 Cowen, 148; 10 Serg. & R. 257,.2 Leach, 538; Bacon, title Abatement.
    
    If a party fails to plead in abatement t© misnomer, and is sued or indicted again for the same offence by right name, he can plead former conviction and aver that he is una et eadem persona. Bacon, vol. 1. b. 7; 2 Strange, 1218. Appearance and plea admits that he is the person intended. Haw. 265, sec. 125.
    “In case of felony at common law, if a person were indicted by a wrong name he could not plead misnomer, but was obliged to plead to the felony; for the fact being sworn against the party present, it was thought there could be no misnomer; as where the party appeared by attorney: and felons generally go by no certain name nor have they any fixed habitation.” Bacon, vol. 1, page 8.
    
      Foster, for plaintiff in error. •
   Per Curiam.

There is no validity in the legal objections raised by the counsel for plaintiff in error.

The verdict and judgment must, however, be set aside, as the record does not satisfy our minds as to the character of the acts committed or intended by the prisoner.

Judgment reversed.  