
    CIRCUIT COURT OF THE UNITED STATES FOR THE MARYLAND DISTRICT.
    May Term, 1803.
    The United States vs. Vickery.
    
      A failure to provu an unnecessary averment in nn indictment will not vitiaLML
    Where the indictment charged that the prisuner tras employed in transporting s.ave* from Mfinhiitp'C to Cumana, and the evidence produced was that he transported the slaves from Nevis to cumana-Held, that the inductment, being in the words of the state, is sufficient withiot any everment of place, which was unnecessary and mere surplusage, and that prooí of the transportation iiom 2}vv.s suppoit the indictment# ‘ . , , ,i,rt ..* ««a
    . , , ..* ««a "Where a swtute directs a fine «nrf imprisonment to be imposed ffi. an offence, the coutl. Aie hum í to inflict both, it the parly is found guilty*
    This was a criminal prosecution under the act of congress passed the 10th of May 1800, which subjects all persons voluntarily serving on board any vessel of the United Slates, which is employed in transporting slaves from one foreign place to another, 
      to fine and imprisonment. The indictment stated, that Vickery voluntarily served on board a certain schooner belonging to a citizen of the United States, as master, which schooner was employed in transporting nine negro slaves from one foreign place to another, to wit, from the island of Martinique, in the West Indies, to Oivaiana in South America. The evidence produced on the trial proved the voluntary serving on board the said schooner, which was employed in transporting nine negro slaves from Nevis to Oumana, and not from Martinique.
    
    
      'Furdance, for the prisoner, supported by Warper? moved the court to direct the jury, that the proof offered did not support the indictment. The indictment charges the transportation from Martinique, and the proof is of a transportation from Nevis'. Although the indictment might have been good without averment, as it is in the very words of the statute, yet it has become material by being stated in the indictment, and must be proved as laid'. In a declaration in a civil suit it frequently happens that an averment, which was not necessary for the validity of the declaration, yet, when laid, must he made out in proof, and the rule of lav? is much more strict in requiring the allegata, el probata to correspond in criminal than in civil cases. The most dangerous consequence, might flow from a contrary opinion. The prisoner, if found guilty in this case under the present indictment, with the present proof, might he indicted over again for 'the transportation from Nevis, and would be precluded from pleading the conviction in this case. For he would not be permitted to shew by pa-rol proof that the offence as charged in the latter indictment, to wit, the transportation from Nevis, was the same offence of which he was found guilty on the former indictment, to ' wit, the transportation from. Martinique. This would be to contradict the record, and they therefore hoped the court would direct ths jury according to their prayer.
    
      
      Hollingsworth, (Attorney of the United States for the Maryland District,)
    contended that the averment was unnecessary, and merely surplusage, and therefore it could not be necessary to prove it. The indictment alleges the transportation exactly in the words of the statute, to wit: «the transportation from one foreign ylace to another,” and this would be sufficient without avering any place; and surely an unnecessary and useless averment shall not become an essential part to be made out in proof; for these reasons lie expected the court would refuse the direction which was prayed by tiie counsel for the prisoner.
   WINCHESTER, J.

The indictment being in the

words of the statute, is sufficient without any averment of the place which is unnecessary and mere^ surplusage. A failure to prove an unnecessary aver- \ ment cannot vitiate an indictment which was good \ without the averment. It would be no contradiction / of. the record on an indictment for a transportation from Nereis, to prove that it is the same offence as the transportation from Martinique charged in the present indictment, for that is surplusage, and the transportation from one foreign place to another, which is the substantial part of the indictment, would not he ©ontradicted. The court are of opinion that' the proof of a transportation from Nevis supports the present indictment'.

The proof being unequivocal as to the transportation from Nevis to Cuniaña, the jury found a verdict of guilty without retiring. ' The court were satisfied, from all the circumstances of the case, that the prisoner was ignorant that he was committing a violation of any law, and therefore fined him only ten dollars, and imprisoned him 24 hours. The court were disposed only to have imposed the fine, but upon looking at the law they were of opinion that they were obliged to inflict both.  