Defendant made a motion in arrest of judgment which attacked the sufficiency of the indictment, and claimed that it was wholly defective, in “that the said indictment fails to state when Campbell Taylor, with whose murder defendant is attempted to be charged, died.”
The charge as set forth in the indictment is “that Tom Cudd, on or about the 26th day of August, one thousand eight hundred and eighty-eight, and anterior to the presentment of this indictment, in the county and State aforesaid, did then and there unlawfully and with malice aforethought kill and murder. Campbell Taylor by cutting and stabbing him, *128the said Campbell Taylor, with a knife, inflicting upon Mm, the said Campbell Taylor, one mortal wound, from which said mortal wound he, the said Campbell Taylor, died; against the peace and dignity of the State.”
This motion in arrest having been overruled is assigned for error on this appeal, and the proposition based upon the assignment is that “it must appear affirmatively from the face of an indictment for murder that death ensued within a year and a day from the alleged infliction of the mortal wound, and an indictment which fails to allege the date of the death of the deceased, either in exact words or by necessary implication, as that he ‘ then and there ’ instantly died, is fatally defective.”
In copying the charging part of the indictment it will be seen that we have italicised the words “inflicting upon him, the said Campbell Taylor, one mortal wound, from which said mortal wound he, the said Campbell Taylor, died.” Now, if the italicised words be stricken out and eliminated from the indictment, there can be no doubt of its sufficiency under the well established rules and forms which have been recognized in this State. The well settled rule is that allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. Mayo v. The State, 7 Texas Ct. App., 342; Holden v. The State, 18 Texas Ct. App., 91; McConnell v. The State; 22 Texas Ct. App., 354.
Eliminating these words we have an indictment complying in every essential with No. 388, the general form for murder found in Willson’s. Criminal Forms, p. 173, which form since its publication has repeatedly been held sufficient by this court. Lucas v. The State, 19 Texas Ct. App., 79; Walker v. The State, Id., 176; Stephens v. The State, 20 Texas Ct. App., 255; Banks v. The State, 24 Texas Ct. App., 559: Rather v. The State, 25 Texas Ct. App., 623. See also Willson’s Crim. Stats., sec. 1980, form No. 2.
In Strickland’s case, 19 Texas Court of Appeals, 518, Judge Hurt says: “At common law it was essentially necessary to set forth particularly the manner of the killing and the means by which it was effected. This is. rendered unnecessary by the Act of March 26, 1881. Willson’s Crim. Stats., sec. 1980, form No. 2. But this act, known as the common sense bill, does not render unnecessary the allegation that the accúsed Icilled the deceased. The form therein prescribed requires such an allegation, and we here hold that an indictment for murder drawn under this form is sufficient, because it—the form—contained each and every element of which murder is composed. Upon this subject Mr. Wharton says: The wound must be alleged to be mortal, and death therefrom must be distinctly averred. The averment that the defendant hilled the deceased on a certain day implies that the latter died on such day.’ 1 Whart. Crim.. *129L., secs. 536, 537. * * * Since the Act of March 26,1881, it is not necessary for the indictment to describe the wound in any manner, nor to allege that it was mortal, nor to allege in terms that the deceased died therefrom. The allegation that the defendant, with his malice aforethought, with certain means did kill and murder the deceased, is sufficient.” Willson’s Crim. Stats., sec. 1035. “An averment that the defendant killed the deceased on a day certain implies that the latter died on such day.” 9 Am. and Eng. Encyclopaedia of Law, 636. Expunging the surplusage as above indicated from the indictment in this case, and the charge is that defendant “on or about the 26th day of August, one thousand eight hundred and eighty-eight, and anterior to the presentment of this indictment, in the county and State aforesaid, did then and there unlawfully and with malice aforethought kill and murder Campbell Taylor by cutting and stabbing him, the said Campbell Taylor, with a knife; against the peace and dignity of the State.” This is sufficient under our statute and approved forms, and certainly implies, if it does not directly aver, that Campbell Taylor, the deceased, died on the 26th day of August.
But it is again insisted for appellant that if said indictment be held sufficient, and if it be held that it alleges that the deceased died on the 26th of August, the court erred in allowing the prosecution to introduce over defendant’s objections evidence showing that the wounded man did not in fact die on that day, but lingered and languished in great pain and suffering for the space of seven or eight days afterwards. Defendant’s objection to the evidence is not tenable. Whilst it is required that the indictment must set forth the time of the alleged acts causing the death, it is nevertheless a general rule that the proof need not strictly conform to the averments. Where an indictment charged that a blow was given on the 27th of December, and that the deceased then and there instantly-died, and the evidence was that he lived twenty days after receiving the' blow and then died, it was held that the variance was not material.’” The State v. Baker, 1 Jones (N. C.), 267. See also 1 Archb. Crim. Pl. and Prac., Pomeroy’s Notes, 8 ed., p. 786; 9 Am. and Eng. Encyclopaedia of Law, 635, 636.
In the early case of O’Connell v. The State, our Supreme Court say: “There is no precedent or authority for any such distinction as. that sought to be maintained by the counsel for the appellant, that the homicide may be proved to have been committed before, but not after, the time charged in the indictment, as applicable to such a case. The time of the commission of an offense laid in the indictment is not material, and does not confine the proof within the limits of that period; the indictment will be satisfied by proof of the offense on any day anterior to the finding. Whart. Am. Crim. Law, 220.” 18 Texas, 366. Mr. Bishop says: “In general the proof of the offense need not correspond in the day of the month and year with the allegations. Any day before *130or after within the statute of limitations and before the bringing of the prosecution will suffice.” 1 Bish. Crim. Proc., 3 ed., sec. 400; Willson's Crim. Stats., sec. 1049; Lucas v. The State, 27 Texas Ct. App., 322. In this case the deceased died on the eighth day after the 26th day of August. The indictment, however, was not found, presented, and filed in court until the 11th day of the following December. It was not error to admit the evidence, and the evidence created no material variance between the allegation and proof.
The only other matter of contention raised by appellant’s counsel in the able oral argument and brief upon which they have submitted the case, is that the evidence is insufficient to support the verdict and judgment, which were for manslaughter. In this we can not concur with them. If the witnesses for the prosecution are to be believed, then at least a case of manslaughter was fully made out. Ho compláint has been made of the charge of the court, and we have found no material error in it.
We are of opinion that the appellant has had a fair and impartial trial, and the record of his trial being free from reversible error the judgment is affirmed.
Affirmed.
Hurt, J., absent.