
    SEWALL v. THE STATE.
    Certainty in indictment — defacing or altering ear marks.
    An indictment must describe the offence with such certainty as to apprise the defendant what he is to answer, that he may shape his defence and plead the judgment in bar.
    An indictment for defacing an ear mark does not attain to such certainty which does not set out the mark alleged to be altered or defaced, or describe the alteration or how defaced.
    Error. The plaintiff in error was indicted and convicted in the Common Pleas, for that he, “the artificial ear marks upon two sheep, •the personal property of one F. X). Payne then and there being wilfully and maliciously, did alter and deface, contrary to the statutes,” &c.
    
    
      S. M. Tracy, for the plaintiff in error,
    contended, that by the act for the punishment of certain offences (29 O. L. 148) two offences were created; one, the altering or changing an ear mark, from that of one person to that of another; the other, the defacing the mark, so as to leave the animal without any known mark. This indictment unites the two offences in one count, and is vicious; 29 O. L. 148; Bac. Ab. Ind. G.
    
    2. The charge is too general, as it does not aver how the mark was altered or defaced, or the mark which was altered or defaced, nor aver that the mark altered was that of the prosecutor, or of any other person.
    
      Clough for the state,
    thought the indictment sufficiently certain. It was one and the same offence to alter and to deface an ear mark. There was no law giving to any individual a property in a mark, or requiring it to be recorded; but every one may mark his property as he pleases. Every altering, is a defacing, and every defacing is an alteration.
   BY THE COURT,

stopping Tracy in reply. This indictment attains to no certainty, not even to a common intent. It is necessary 484] * that the state attain to such certainty as to notify the defendant what he is to answer, in order that he may shape his defence to meet it, and be enabled to plead in bar of any future prosecution, an acquittal or conviction under it. This indictment does not do so ; it should set forth the existing mark, and describe its alteration, or the manner as near as may be it is alleged to be defaced.

The judgment is reversed.  