The United States vs. Vickery, 1 H. & J. 427

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.