December, 1836. NASHVILLE, dictment, as it was set out in the record, that the witnesses upon whose testimony it was found by the grand Jury, were sworn and sent to the grand jury; nor did it appear by endorsement on the back of it, who the prosecutor was. The State * Charles Scott, for plaintiff in error. 1st. The judgment ought to be reversed, because the record does not show that the indictment upon which the accused was arraigned and tried, was founded upon the testimony of witnesses legally sworn and sent before the grand jury. The names of the witnesses, and that they were sworn in open court and sent before the grand jury, should have been endorsed upon the indictment, which endorsement should have been signed officially by the clerk. 1 Chit. Crim. Law, 261, and 264: 2 Gall. Rep: 364. 2d. The record shows that there was a prosecutor, but his name was not endorsed or marked upon the back of the indictment, which is expressly required by the act of 1801, c. 30, § 1; therefore the preferring of the indictment, as well as the finding of the grand jury, were acts wholly unauthorized and illegal. 1 Scott's Rev. 717: 2 Bibb R. 210. 3d. The act of 1812, c. 44, gives the solicitor the right, under special circumstances, to prefer ex officio an indictment to the grand jury; but this power can only exist when there is no prosecutor, and where an inquest has been held by the coroner, and he has made a proper return to court. 2 Scott's Rev. 87. 4th. The testimony of Baker and England was inadmissible as forming no part of the res gesta. That part of the declaration of the deceased which speaks of Kirby intending to accompany him to the pine mountain, was not in their evidence when this case was first before the court. This evidence is distinguishable from that, and is clearly inadmissable, because defendant was not present when the declaration was made; was not seen accompanying the deceased, and the statement necessarily derives its credit entirely from the person who made it. 1 Starkie's Ev. 44, 47, 48, 49, 50, 51, 52: 4 Mass. R. 708: Roscoe's Crim. Ev. 20: 7 Yer. R. 259. *It was subsequently ascertained that all these endorsements were on the indictment, but were omitted in copying it. S. Turney and J. R. M'Cormick, argued on the same side, and G. S. Yerger, for the State, contra. GREEN, J. delivered the opinion of the court. We are of opinion that the evidence of Baker was illegal and was improperly received. When this case was before the court upon a former occasion, (7 Yer. R. 259,) the evidence of this same witness constituted one of the grounds assigned for error. In that case this court thought that the testimony was competent, but the evidence in the record now before us, differs materially from that of the same witness as presented in the record then before the court. In that case, the evidence of Baker as quoted in the opinion of the court, was, "that Elrod told him at Sparta the evening before the day on which he was missing, that he was going the next day to the pine mountain, to hunt a salt petre cave." According to this statement, Elrod was at Sparta on his way to the mountain, and he stated to the witness that he was going there, and the purpose for which he was making the journey. The court held, and we think correctly, that this statement setting forth the place to which he was going, and his intention in going there was part of the transaction, and as such was admissable. But Baker's evidence as set forth in the present record, goes much farther than this. In addition to the statement of his own purpose in his journey, he told the witness that he was to go with the defendant next day to the pine mountain, and that the defendant was to show him a salt petre cave. Now how does this statement constitute any part of the thing doing? Whether Kirby was to accompany him or not, could not affect his intentions in going to the mountain, nor could his statement of that fact tend to explain his purpose in going there. His declaration of his own purpose is evidence, because it explains his intentions, and his intentions constitute part of the thing he was doing. He was traveling, and as he was going, he had certain intentions, and as these intentions could only be known by his declaration of them, such declaration is evidence. But it is impossible that Kirby's going with him could constitute any part of the thing which he was doing, which was his own journey. We think, therefore, that this NASHVILLE, December, 1836. Kirby V The State. NASHVILLE, The State. ་ December, 1836. part of Baker's evidence which relates to Kirby's intend ing to accompany Elrod, was improperly admitted by the court to go to the jury. The evidence of Jesse England was also objected to. This witnesses' statement is in substance such as Baker's was upon the former occasion, and we think was properly admitted. Rye, etc. The objection which is taken to the proceeding, because there does not appear to have been the name of a prosecutor on the indictment, it is not necessary to decide, and we there fore leave it for the action of the court below. The judgment will be reversed, and the prisoner will be remanded to White county, to be proceeded against anew. Judgment reversed. STATE US. RYE and DUNLAP. A recognizance taken in the circuit court to appear in the supreme court, is goo without containing a recital of the offence to be answered, or without showing on its face the court in which it was taken. A recognizance must show on its face the court to which the defendant is bound to appear. A scire facics issued upon a forfeited recognizance, and after setting forth the recog nizance and specifying the time and place for the defendant to appear, proceeds thus, "then and there to stand to, abide by, and suffer whatever said supreme court shaf consider on the hill of indictment against him for lewdness." These words, nor any thing like them, were not contained in the recognizance; Held, that the recognizance was good without them; that they were merely surplusage as alleged in the scire facias, and therefore, there was no variance between the scire facias and the recognizance. If matter unnecessarily stated be wholly immaterial and irrelevent to the cause, and it is not so interwoven with matters which are material, as to prevent its exclusion without necessarily excluding the other, the immaterial matter will be considered as surplusage, and may be rejected. This is a suit by scire facias on the part of the State against the defendants, on a forfeited recognizance, to which they have pleaded nul tiel record. The record shows that on the 4th day of April 1835, it being a continuance of the March term 1835, of the circuit court of Stewart county, John Keel, who had been convicted of the offence of open and notorious lewdness, had prayed an appeal to the next term of the su preme court, to be held in Nashville on the first Monday in March 1836, which was granted, and thereupon, he in open court "acknowledged himself to be indebted to the State of Tennessee, in the sum of five hundred dollars, to be void on condition, that he make his personal appearance before the judges of the supreme court of the State of Tennessee, to be held at the court house in the town of Nashville, on the first Monday in March 1836, and not to depart thence until discharged by due course of law, or by leave of the court first had and obtained. And also on the same day came into court the defendants, Rye and Dunlap, and "acknowledged themselves to be jointly and severally indebted to the State of Tennessee, in the sum of five hundred dollars, to be void on condition, that John Keel do make his personal appearance before the judges of the supreme court of the State of Tennessee, to be holden at the court house in the town of Nashville, on the first Monday in March 1836, and not depart thence till discharged by due course of law, or by leave of the court, first had and obtained." At the March term, 1836, of the supreme court, John Keel failed to appear, and judgment nisi was rendered against him and his bail, upon their forfeited recognizances. The scire facias issued on said judgment against the defendants; it sets forth the recognizance correctly, with the exception that after specifying the time and place at which said Keel was to appear, it adds, "then and there to stand to, abide by, and suffer whatever said supreme court shall consider on the bill of indictment against him for lewdness," which words are not contained in the recognizance. Geo. S. Yerger, Attorney General, for the State. W. Thompson, for defendant. TURLEY J. delivered the opinion of the court. Several questions are made in this case: 1st. is the recog nizance good and sufficient without containing a specification of the offence to be answered? We think it is. We think it is. The object intended to be secured by the recognizance is the appearance NASHVILLE, December, 1836. December, 1836. NASHVILLE, of the person charged, not that he will abide by the decision of the court, for if his presence be secured, the court will see that he suffers judgment. The State. V Rye, etc. 2d. Is the recognizance good without specifying on its face the court where it was taken? We think it is. Recognizan ces never show, separated from the record, where they were taken, being always so far as that is concerned in the form of the present, viz: "this day came the parties into open court." &c. What court? The court referred to in the record. In the case of Grigsby vs. The State, 6 Yer. R. 334, it was deter mined that the recognizance must show to what court the party was bound to appear or it would be bad. We recognize the authority of this decision, but that question is very differen: from this. The record will show where the recognizance was taken, but it cannot show where the party was bound to appear. 3d. Is there a material variance between the record of the recognizance produced, and that set forth in the scire facias We think not. We have said that the recognizance was goo without specifying the offence which the party was to answer then the scire facias need not have set forth more than is com tained in the recognizance, to have given the State a right to maintain its suit against the defendants; an attempt to do so surplusage, and it must be rejected. If matter unnecessarily stated be foreign and irrelevant to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, and it need not be proven, nor will it vitiate even on special demurrer, it being: maxim that "utile per inutile non vitiatur." Chit. Plea. 262, 263, and cases there cited. In a case in 4 B. and C. 380 Judge Baily observes, "a party is not bound to prove an im material allegation, unless he has by his mode of pleading, s connected it with a material allegation as to make the latter de pend upon it." And judge Holroyd said, "if the plaintiff sta ted a cause of action more than is necessary for the gist of the action, the jury may find so much proved, and so much not proved, and the court would be bound to pronounce judgment for the plaintiff, upon that verdict, provided the facts proved constitute a good cause of action.' These authorities sho |