Third, the name and addition of the de fendant; but in case an error has been made in this respect, it is cured by the plea of the defendant ; Bac. Abr. Misnomer (B), Indict ment (G 2) ; 2 Hale, Pl. Cr. 175 ; 1 Chitty, Pr. 202 ; Russ. & R. 489. Where the defend ant's name is stated differently in different parts of the indictment, it is fatally defec tive ; Kinney v. State, 21 Tex. App. 348, 17 S. W. 423 ; or where it fails to state his given name, or aver that it is not known, a plea of misnomer in abatement should be sustained ; Turner v. People, 40 Ill. App. 17 ; Pancho v. State, 25 Tex. App. 402, 8 S. W. 476 ; or where it gives a wrong name ; Lewis v. State, 90 Ga. 95, 15 S. E. 697. See IDEM SONANS.
Fourth, the names of third persons, when they must be necessarily mentioned in the indictment, should be stated with certainty to a common intent, so as sufficiently to in form the defendant who are his accusers. When, however, the names of third persons cannot be ascertained, it is sufficient, in some cases, to state "a certain person or per sons to the jurors aforesaid unknown." 2 East, Pl. Cr. 651, 781; 2 Hale, PI. Cr. 181; 8 C. & P. 773.
Fifth, the time when the offence was com mitted should, in general, be stated to be on a specific year and day. In some offences, as in perjury, the day must be precisely stated ; U. S. v. Bowman, 2 Wash. C. C. 328, Fed. Cas. No. 14,631; but although it is necessary that a day certain should be laid in the in dictment, yet, in general, the prosecutor may give evidence of an offence committed on any other day previous to the finding of the in dictment ; Jacobs v. Com., 5 S. & R. (Pa.) 316. See 1 Chitty, Cr. Law 217, 224 ; Com. v. Alfred, 4 Dana (Ky.) 496; Vowells v. Corn., 84 Ky. 52 ; Corn. v. Le Clair, 147 Mass. 539, 18 N. E. 428 ; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096 ; People v. Formosa, 131 N. Y. 478, 30 N. E. 492, 27 Am. St. Rep. 612 ; Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377. It is not material, except where time, is of the essence of the offence, to charge in an indictment the true day on which an offence was committed, or to prove the day as charged ; State v. Swaim, 97 N. C. 462, 2 S. E. 68. In the absence of a stat ute abrogating the common-law rule, there is no doubt that an indictment charging the commission of an offence at an impossible date, is fatally defective ; as, for instance, charging the commission of the crime on a certain day in the year, 18903, notwithstand ing the fact that there was a statutory pro vision that no indictment should be deemed invalid for stating imperfectly the time when the offence was committed ; Terrell v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Gas.
851. As to averments of time and place in an indictment for homicide, see note 3 L. R. A. (N. S.) 1019.
Sixth, the offence should be properly de scribed. This is done by stating the substan tial circumstances necessary to show the na ture of the crime, and next, the formal al legations and terms of art required by law. Steph. Cr. Proc. 156. An omission of matter of substance in an indictment is not aided or cured by verdict ; U. S. v. Hess, 124 U. B. 483, 8 Sup. Ct. 571, 31 L. Ed. 516. An indict ment charging a crime "on or about" a cer tain date is not defective, these words being surplusage, the real date being that specif ically charged ; State v. McCarthy, 44 La. Ann. 323, 10 South. 673.
As to the substantial circumstances. The whole of the facts of the case necessary to make it appear judicially to the court that the indictors have upon sufficient prem ises should be set forth ; but there shonld be no unnecessary matter, nor anything which on its face makes the indictment re pugnant, inconsistent, or absurd. And if there is no necessary ambiguity, the court Is not bound, it has been observed, to create one by reading the indictment in the only way which will make it unintelligible. It is a clear principle that the language of an in dictment must be construed by the rules of pleading, and not by the common interpreta tion of ordinary language ; for nothing in deed differs more widely in construction than the smile matter when viewed by the rules of pleading and when construed by the lan guage of ordinary life ; 16 Q. B. 846 ; 2 Hale, Pl. Cr. 183 ; Bac. Abr. Indictment (G 1); Corn. Dig. Indictment (G 3). Averments of matters not material or necessary ingredi ents in the offence charged may be rejected as surplusage ; State v. Kern, 51 N. J. L. 259, 17 Atl. 114. An indictment is not in sufficient by reason of any defect or imper fection in matter of form only, which' shall not tend to the prejudice of the defendant'; Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415. All indictments ought to charge a man with a particular offence, and not with being an offender in -general: to this rule there are some exceptions, as dictments against a common barrator, a com mon scold, and a keeper of a common baw dy-house ; such persons may be indicted by these general words ; 1 Chitty, Cr. Law 230, and the authorities there cited. The of fence must not be stated in the disjunctive, so as to leave it uncertain on what it is in tended to rely as an accusation : as, that the defendant erected or caused to be erected a nuisance ; Corn. v. Grey, 2 Gray (Mass.) 501, 61 Am. Dec. 476 ; 6 D. & R. 143 ; 2 Rolle, Abr. 31.