
    Dick, a Slave, v. The State of Mississippi.
    1. Witness : right to cross-examine. — If a witness for the state, who has deposed to a confession of guilt, made by the prisoner to himself, state in general terms, that he soon afterwards heard the prisoner make other confessions, and to different persons, it will be error, for the court to refuse the defendant the privilege of cross-examining the witness, as to the nature and character of such confessions, so referred to by him.
    2. Indictments : unnecessary aveements in, when must be proved. — Whilst as a general rule, every fact and circumstance stated in the indictment, which is not a necessary ingredient of the offence charged, may be rejected as sur-plusage, and need not be proved on the trial, yet this rule applies exclusively to averments, which are not only unnecessary in themselves, but foreign to the charge; and not to such, which, though they might with propriety have been omitted, but being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge. (Archb. Or. PI. 39, 101; 1 Phil. Ev. 500; 2 East, P. C. 1021; 5 T. R. 446; 3 Phil. Ev. 663; 3 Day, 286; 24 Miss. E. 318; 1 Moody, C. 0. 118; lb. 303; 1 Russ. & E. 14; 2 Stark, Ev. 1531.)
    3. Same : negro : mulatto. — The averment in an indictment against a slave for rape, that he is a negro, is unnecessary, but if inserted, it becomes descriptive of the person of the prisoner, and must be proved as alleged, and if the proof show that he is a mulatto, he will be entitled to his acquittal.
    IN error from the Circuit Court of Pontotoc county. Hon. P. T. Scruggs, judge. '
    . J. F. Oushman, for plaintiff in error.
    
      JD. O. Cfhnn, attorney general, contrá.
    
   Smith, C. J.,

delivered tbe opinion of the court.

This was an indictment for an attempt, by a slave, to commit a rape upon a free white woman, upon which the prisoner was convicted.

A motion was entered for a new trial, which was overruled, and ■ thereupon a bill of exceptions was taken setting out the evidence, the action of the court in regard to the introduction of testimony, and the charges given or refused.

Several exceptions are taken to tbe judgment. We deem it, however, unnecessary to notice only those objections, which in our opinion are well-founded.

A material part of the evidence adduced in support of the prosecution, was the confessions of the prisoner, as testisfied to by the witness Murphy. This witness testified, that when the accused was brought before him as a justice of the peace, on warrant for examination, he made known to him the charge against him; and asked him whether he was guilty; and that he acknowledged that he was guilty. The witness also stated, that he heard the accused afterwards, and during the same evening, make other confessions to other persons, which was soon after those made to the witness. The accused, by his counsel, proposed to cross-examine the witness, in regard to the confessions made to other persons ; but the court refused to permit such examination; and the prisoner excepted.

It is manifest, that the examination proposed was material to the issue to be tried by the jury. It may have been important to the prosecution. The witness had first deposed to confessions made to himself; and in addition, had stated that the accused had shortly afterwards made other confessions to different persons. If the confessions. made to other persons than the witness, were to the same effect as those made directly to the witness, his confession first made, the particulars of which were delivered to the jury, would have been corroborated. They would thus have bee.n placed in possession of more satisfactory evidence of the guilt of the prisoner. On the other hand, it was clearly the right, and might have been of the greatest importance to the prisoner, to cross-examine in relation to those confessions, — an imperfect statement, and reference to which, had been made to the jury. That statement or reference, as general as it was, undoubtedly was calculated to injure the prisoner. The jury could have looked upon the confessions stated by the'witness to have been made to other persons, in no other light than as a deliberate repetition and reaffirmation of the confessions first made to the witness. But if these “other confessions,” were different in any material respect from those first made directly to the witness, as might possibly have been the case, the accused was clearly entitled to bring out by cross-examination, every circumstance that was calculated to destroy or weaken their force as confessions, or to show that those confessions were incompetent evidence against him.

We think the court erred also, in refusing the sixth instruction asked for the prisoner.

In that instruction, the prisoner requested the court to charge, that if the jury believed from the evidence, that the prisoner was a mulatto slave, and not a negro man slave, as charged in the indictment, they should acquit him.

The provision of the statute is, that “if any slave shall attempt to commit a rape upon a free white woman,” &e. (Hutch. Dig. 521, § 55.) If the attempt to commit a rape upon a free white woman, &e., is made by a slave, the offence created by the statute is complete, whether the slave be a negro or mulatto. It was hence unnecessary to charge, that the slave alleged to have committed the offence, was either a negro or mulatto. The averment was immaterial; and the question is, whether it is of that class of unnecessary or immaterial averments which may be rejected as surplusage, and therefore need not be proved on the trial.

The general rule in reference to the proof of indictments, is well understood. As laid down by Archbold, it is incumbent on the prosecutor to prove at the trial every fact and circumstance stated in the indictment, which is material, or necessary to constitute the offence charged. On the other hand, every fact and circumstance stated in the indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial. Archb. Or. Plead.. 39.

However clear and definite general rules may be, difficulty is frequently encountered in applying them to particular cases. Hence it is often a nice point to ■ determine whether an allegation in an indictment should or should not be totally disregarded in the proof. Phillips, in his work'on Evidence, says: “ If an averment may be entirely omitted, without affecting the charge against the prisoner, it will be considered as surplusage, and may be disregarded in the evidence,” vol. 1, p. 500. This rule, as laid, by Phillips, has been held uniformly to apply to averments which are not only unnecessary in themselves, but foreign to the charge. The cases of The King v. Mintion, cited in 2 East, Pleas of the Crown, 1021; and Rex v. Holt, 5 T. R. 446, are referred to, as illustrative of this principle. But it has never been held to apply to allegations, which although they might with propriety have been dispensed with, but being inserted in the indictment, are descriptive of the identity of that which is legally essential to the charge. 3 Phill. Ev. 668, (Hill & Cow. Ed.); Archb. Cr. Pl. 101; United States v. Porter, 3 Day, 286; 24 Miss. Rep. 578. Thus, on an indictment under the statute of 57 Geo. III. ch. 90, for being armed with intent to steal game, in a certain wood called the “ Old Walk,” in the occupation of a person named in the indictment, it appeared that the wood had never been called the “ Old Walk,” but always the “Long Walk;” and it was holden, that although it was unnecessary to state the name of the close where the occupation was stated, yet being alleged, it was material, and could not be rejected. Rex v. Owen, 1 Moody, C. C. 118, 303; Rex v. Craven, 1 Russ. & Ry. 14; 2 Stark Ev. 1531.

. The averment that the prisoner was a negro, was in no respect an ingredient in the offence charged. It might therefore, with propriety have been omitted. But having been inserted, it was descriptive of the person of the prisoner; it became a part of his identity; manifestly as much so as the name under which he was prosecuted. The averment was connected with and descriptive of that which it was essential to establish by the evidence — that is, the identity of the party charged.

Th,e rule of the English courts on this subject was clearly recognized by this court, in the case of John, a Slave, v. The State, above cited. Applying it to the case at bar, we think the court erred in refusing the instruction.

Judgment reversed, and cause remanded for a new trial.  