
    
      The State v. Joseph Coppenburg.
    
    On the trial of an indictment for receiving stolen goods, the principal felon is a competent witness on the part of the State.
    It is not necessary that the name of the defendant, or any other person mentioned in an indictment, should be constantly repeated; when once mentioned in full, it may De abbreviated when it occurs again in the same count or sentence, with a reference to the first statement of it, by the words “said” or “aforesaid.”
    In an indictment for receiving stolen goods, it is not necessary to state the name of the principal felon; and, if stated, it is not necessary that it should be proved.
    Where an indictment contains matter unnecessary to the description of the of-fence, it may be rejected.
    The misdemeanor of receiving stolen goods is not merged in the offence of being accessory before the fact of the larceny. The less is merged in the greater of-fence only when they result from the same act, or continuing transaction.
    
      Before Mr. Justice Frost, at Charleston, October Term, 1847.
    The indictment charged the defendant with receiving from George W. Faxton- various drugs, paints, and other articles, stolen from Haviland, Harral & Allen. The articles, charged to have been stolen, were found in the house occupied by the defendant, as a grocery, concealed in various places. They were sufficiently identified as the properly of Haviland & Co.
    George W. Faxton was offered as a witness for the State, and objected to, but admitted. He testified that he had been employed by Haviland & Co. in their store, and had stolen the articles found on the premises of the defendant, and had sold them to him; and that he had been instigated and encouraged to steal them by the defendant, who had promised to buy whatever he might steal.
    In reply to the argument of defendant’s counsel against the competency of Faxton, it was said, that if a prisoner made a voluntary confession, and yras used by the State as a witness against his accomplices, he did not thereby acquire a legal exemption from prosecution, though it was usual not to prosecute him; but the jury were cautioned that the witness did, no doubt, testify undér a confidence of immunity, which should subject his testimony to as much suspicion as if he had received an assurance to that effect.
    In the indictment an alteration had been made in the name of Faxton, which gave rise to a question whether it was written Faxton or Paxton; which it was submitted to the jury to decide, by inspection. At the same time they were instructed that, if the name was written Paxton, this error should not prevent a conviction, because the offence was described with the certainty required by law, when the name of the defendant and of the owner of the goods, and the description of the articles alleged to have been stolen, were correctly set out in the indictment; and that the name of the party, from whom the goods were received, was a superfluous description, which it was not necessary to prove. In a part of the indictment, subsequent to that in which the name of George W. Faxton was first mentioned, he was again referred to as “ the aforesaid George Faxton,” but the W. was not interlined. The jury were instructed that the reference to the first statement of the name supplied the omission of the W. and obviated the objection.
    The jury were further instructed that, at common law, one act could not constitute two offences, and a misdemeanor was merged in a felony, but that a different rule prevailed when an act, criminal at common law, was made an offence by statute — in which case there was no merger, and that this indictment might be sustained.
    The jury found the defendant guilty, and he appealed and moved for a new trial, on the grounds —
    1st,, That George W■ Faxton, the principal felon, and therefore an incompetent witness, was permitted to testify against defendant.
    2d, That the indictment alleged the principal felon to have been-one George W. Paxton, and the proof was, that his name was George W. Faxton.
    
    3d, That his Honor erred in charging the jury that the principal felon, who was permitted to testify, after the declaration of the Attorney General in open Court, that he neither had been nor would be prosecuted for his offence, had no legal immunity from prosecution for that offence.
    4th, That his Honor erred in charging the jury that it was unnecessary either to name the principal felon in the indictment for receiving stolen goods, or to prove his name as laid, and that assuming the principal felon to be styled George W. Paxton in the indictment, proof that his real name was George W. Faxton was no material variance, and therefore no bar to a conviction.
    5th, That his Honor erred in charging the jury that the omission of the “W” in the principal felon’s name in one of the indictments, was immaterial.
    6th, That the proof, if it established anything, showed that the defendant instigated, advised, counselled, procured and hired the principal felon to steal the specific articles mentioned in the indictment, for the defendant’s benefit, and that defendant, if guilty at all, was an accessary before the fact, and therefore guilty of felony — in which case, the misdemeanor was merged in the felony, and he could not be convicted of the minor oifence.
    7th, That his Honor erred in charging the jury that the felony of being an accessary before the fact, in this case, being so by common law, and the misdemeanor of' receiving stolen goods being a statutory offence, the latter was not merged in the former, but they constituted two distinct of-fences, and defendant might be legally convicted of both.
    8th, That the verdict- was, in the foregoing and other respects, contrary to law and evidence.
    Brown & Yeadon, for the motion.
    Bailey, Attorney General, contra.
    
   Frost, J.

delivered the opinion of the Court.

The first ground of appeal, that the principal felon was not a competent witness, has not been urged. There can be no doubt of his competency.—Haslum’s Case, 1 Leach, 418; Walker’s Case, 3 Camp. 264; Roscoe’s Crim. Ev. 813.

The name of George W. Paxton, having been before mentioned in the count, he was identified with sufficient certainty, when afterwards referred to as the said George Paxton — it is not necessary that the name of the defendant, or any other person mentioned in the indictment, should be constantly repeated. The name, when once stated in full, may be abbreviated when it occurs again in the same count or sentence, with a reference to the first statement of it, by-the words “said” or “aforesaid.”—1 Chit. Crim. Law, 204 ; 4 How. St. Trials, 747.

The fourth ground presents the questions, whether it was necessary to name the principal felon in the indictment — and if named, whether it was necessary to prove the fact, as stated.

The Act of 1829, 6lh Stat. 393, provides that “any person who shall buy any such (stolen) goods or chattels, or other property, knowing them to have been stolen,” shall be guilty of a misdemeanor. By the Statute 7 and 8 Geo. 2, c. 29, it is made a felony “if any person shall receive any stolen goods,” &e., such person knowing the same to have been “feloniously stolen and taken.” In the construction of the British statute, it has been held not to be necessary to state in the indictment the name of the principal felon. In Jervis’ Case, 6 Car. and P. 156, it was objected to a count, charging the goods to have been stolen “by a certain evil disposed person,” — -that it ought either to have stated the name of the principal, or else that he was unknown. Tindall, C. J. said the offence created by the Act of Parliament is, not the receiving of stolen goods from any particular person, but receiving them, knowing them to have been stolen. The question therefore is, whether the goods were stolen. — and whether the prisoner received them, knowing them to be stolen. In Wheeler’s Case, 7 Car. and P. 170, a count in the same form was held good. These cases apply directly to our Act of Assembly, and this Court adopts the construction established by them.

It is a question of mere doubt whether, if the name of the principal felon be stated, it is necessary that it should be proved. It is a general rule in pleading, that an immaterial averment may be rejected as surplusage, and need not be proved; but questions of great nicety occur in the application of the rule. It is sometimes very difficult to determine whether an averment be material or immaterial. In Phillips’ Ev. 207, (8th ed.) the rule applicable to averments in indictments is stated to be, that if the averment may be entirely omitted, without affecting the charge against the prisoner, and without detriment to the indictment, it will be considered as surplusage, and. may be disregarded in evidence. In Jones’s Case, 2 Barn, and Ad. 611, the indictment charged that the defendant, a surgeon, knowingly, and with intention to deceive, signed a certificate for the admission of a patient into a Lunatic Hospital, without having visited and personally examined the patient. Under the statute, the of-fence consisted in the act of giving the certificate, without its being given with an intention to deceive. The jury negatived the intention to deceive, and found the defendant guilty, subject to the opinion of the Court in the case. Lord Ten-terden asks, is there any authority for saying that if an indictment or a statute contains matter unnecessary to the description of the offence; if it charges the statutable offence, and something more, it is therefore not maintainable? All the Judges agreed that the addition of a circumstance not necessary to constitute the offence, might be rejected. In Roscoe on Grim. Ev. 99, it is said, when the name of a person or place is unnecessarily introduced, it need not be proved. He cites Wardle’s Case, 2 East’s P. C. in which the prisoner was indicted for robbing another in a field, near a highway; and the jury found he was guilty of robbing, but not near the highway, the variance was held to be immaterial. In Pyr’s Case, 2 East’s P. C., the prisoner was indicted for robbing Robert Ferney, in the dwelling-house of Aaron Wilday; but the of-fence was not proved to have been committed in the house of Aaron Wilday. The conviction was held to be proper. In those cases, the place where the robbery was committed was Hot a constituent of the offence, yet it formed part of the description. In this case, the statement of the name of the principal felon was unnecessary. It might be struck out, without taking from the description of the offence any material constituent. According to the rules and cases cited, the conviction may be supported.— though the averment that the goods were stolen by Paxton, was not proved.

It is argued that the misdemeanor of receiving the stolen goods is merged in the offence of being accessary, before the fact, to the larceny. The less is merged in the greater of-fence only when they result from the same act or continuing transaction. Assault and battery are merged in the felony, if death ensues. If one enter a dwelling-house in the night time and commit a larceny, the less offence is merged in the greater. But if a larceny be committed in the day, and a burglary be committed in the same house at night, the of-fences are several and distinct. If in this case the evidence had shown that the defendant was present and aiding in the larceny, he would have been a principal, and could not have been indicted for receiving the stolen goods.—Dyer’s Case, 2’ East’s P. C., and Atwell’s Case, 768. But the offence of instigating Paxton to the commission of the felony, is a distinct act from that of receiving the stolen goods. The defendant may have been accessary to the larceny, and not have received the goods. The offence of being accessary was complete as soon as, by the least removal of the goods, the larceny was complete. After the larceny to which the defendant was accessary was consummated, he was guilty of another criminal act, in buying the stolen goods. The two acts constitute distinct offences, and the misdemeanor is not merged in the offence of being accessary. The motion is dismissed.

O’Neall, J. and Evans, J. concurred.

Withers, J. absent, from indisposition.

Wardlaw, J.

dissenting. I agree as to the admissibility of Faxton. I agree that, under our statute, (6 Stat. 393,) one who buys or receives stolen goods, knowing them to be stolen, may be indicted for the misdemeanor which is perpetrated by the mere act of receiving, although he may have been an accessary before the fact in the felony which was committed by the person from whom he buys or receives.

I agree also that, upon the indefinite terms of the statute, the indictment might have been sufficient, without the name of the person from whom the goods were received, or the name of the person by whom they were stolen — although no precedent of an indictment so vague can be found: but the indictment here having stated that the goods were stolen by Paxton, and that the defendant received them from Pax-ton, and if these allegations be struck out, there remaining no distinct allegation either that the goods were stolen, or that they were received — I cannot agree that it was wholly immaterial whether the name “Paxton” was correct or not.

“Where an offence is stated in an indictment with greater particularity than is necessary, unnecessary allegations of description of some ingredient in the offence, and not merely of circumstances of aggravation, are material and relevant, and cannot be rejected as surplusage.”

Here the name occurs in the allegation that he received— the very gist of the offence. It is supposed that the words “of and for Paxton” may be struck out, and a sufficient allegation that he received indefinitely, will remain: but I do not understand that the right of thus separating words in a clause of an averment, not separated even by a comma, is intended by the rules which regulate rejection as surplusage. Even in civil pleading it is not so. In Williamson v. Allison, 2 East, 446, Lawrence, J. said, “If the whole of an averment may be struck out, without destroying the plaintiff’s right of action, it is not necessary to prove it. But otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action — for then, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover.”

So in Briston v. Wright, 667, it was necessary to aver that rent was reserved, but the averment was, that rent was reserved quarterly; and it was held that it must be proved as it was laid.

Richardson, J. concurred in this dissent.

Motion dismissed.  