dissenting.
I am unable to concur in the conclusions of law arrived at in the majority opinion prepared in this case. At the close of the evidence the defendant requested the judge to give the following instruction to the jury: “The defendant in this case is charged with stealing certain bank bills and notes known as lawful currency of the United State of divers denominations, the number and denomination of which are alleged to be unknown to the county solicitor, and also certain silver specie, a more particular description, it is alleged, is unknown to the county solicitor, said property being alleged to be of the aggregate value of $100.00. It appears from the evidence that the county solicitor knew or could easily have known a better description at the time of the filing of the information than the description set forth in the said information, there is, therefore, a fatal variance and you will accordingly find a verdict of not guilty.”
The defendant below under the circumstances of the case was entitled to his discharge and the requested instruction should have been given, according to my view.
The property alleged to have been stolen is described in the information upon which the defendant was tried as follows: “Certain bank bills and notes commonly known and denominated as lawful currency of the United States of divers denominations, the number and denomination of which are to the prosecutor unknown, and certain silver specie, a more particular description of which is to the prosecutor unknown, amounting in the aggregate to the *48sum of $100.00 lawful currency of the United States and of the value of $100.00.”
The chief witness for the State, who was the owner of the property alleged to have been stolen, and who on the advice of the prosecuting attorney swore out a warrant for the arrest of the defendant, testified at the trial that the property stolen from him consisted of a check of a private individual on a bank for the sum of $20.00, three bank bills for the sum of $10. each, sis bank bills for the sum of $5. each, and enough one dollar bank bills to make up an aggregate of $100., and that he gave this description of the stolen property to the deputy sheriff shortly after the theft, and gave the same description of the stolen property on the defendant’s preliminary trial; that he knew the description of the property stolen when he first went to the prosecuting attorney’s office after the theft as well as he knew it at the time of testifying at the trial. From this it is seen that the allegation in the information to the effect that a more particular description of the property stolen was to the prosecutor unknown is not sustained by the proofs. The proofs show that he either knew of a much more accurate and definite description of the stolen property than that given thereof in the information, or that he could have easily procured such accurate and definite description thereof by simply applying therefor to the main witness for the prosecution who was the party from whom the property was stolen. Under these circumstances, according to my view of the law, there was a fatal variance between the allegation and the proofs, that entitled the defendant to his discharge. The true rule in such cases, according to my view, the one supported both by reason and the overwhelming weight of authority is that it is only permissible upon the ground of necessity to allege in an indictment that the name of a person or fact necessary to be stated is unlcnoion; and the *49defendant is entitled to be discharged when it appears on the trial that the name or the fact either was known or conld by the exercise of ordinary diligence have become known, to the grand jury or prosecuting attorney exhibiting the information.” State v. Stowe, 132 Mo. 199, 33 S. W. Rep. 799; State v. Thompson, 137 Mo. 620, 39 S. W. Rep. 83. The allegation in an indictment that the name of a person, or a fact, is unknown to the grand jurors, or to the prosecuting officer exhibiting an information, is a material one, is traversed by the plea of not guilty, and must be sustained, and may be rebutted by proof. Cameron v. State, 13 Ark. 712; Blodget v. State, 3 Ind. 403; Cheek v. State, 38 Ala. 227; Rex v. Robinson, 1 Holt N. P. 595, S. C. 3 E. C. L. 233; Reg. v. Campbell, 1 Carr. & K. 82, 47 E. C. L. 80; Rex v. Walker, 3 Camp. N. P. 265; Reg. v. Stroud, 2 Moody C. Cas. 270; Winter v. State, 90 Ala. 637, 8 South. Rep. 556; United States v. Biley, 74 Fed. Rep. 210; Sault v. People, 3 Colo. App. 502, 34 Pac. Rep. 263; 1 Chitty’s Crim. Law, 213; Presley v. State, 24 Tex. App. 494, 7 Am. Cr. Rep. 243.
The facts alleged in the information to have been unknown to the prosecutor, were material facts that the defendant had the legal right to demand an allegation of in the information. If these facts were in truth unknown to the prosecutor, and could not with ordinary diligence have been ascertained by him, then, and not until then, did the necessity arise or exist which the law recognizes, permitting such facts to be alleged as being unknown. All the authorities agree that the allegation in an indictment to the effect that a name or a fact is unknown is a material averment, upon which issue is joined by the plea of not guilty, and I cannot agree with the few courts sustaining the majority opinion in their holdings to the effect that if there is no proof either way as to whether the fact *50alleged to have been unknown was either known or unknown, the question is immaterial and the defendant has no right to any advantage therefrom; and that the burden in such cases is on the defendant to prove, if he can, that the alleged unknown fact was in truth known to the grand jury or prosecutor. I had thought that the law had been settled for ages that the burden was on the prosecution to prove every material averment in the indictment, but the holdings of these courts in this respect is a long step towards an uprooting of all the old landmarks that bound the haven of presumptive innocence until all material averments charging guilt are affirmatively established. My view is that when an indictment alleges that a material fact is unknown to the grand jury or prosecuting officer, that the burden is on the prosecution to show that such fact was in truth unknown, and could not with ordinary diligence have been ascertained, and that if such proof is not made there can be no conviction on such indictment.