The opinion of the Court was drawn up by
Goodenow, JThe exceptions in this case present the single question, whether the words in the complaint, “being a second glass of intoxicating liquor, by said Lorenzo D. Staples then and there sold and delivered, at said Biddeford, to said Nathaniel Tibbetts,” may be lawfully rejected as surplusage.
It is admitted that the complaint would have been sufficient had not these words been inserted therein. But it is contended that they contain matter of description, and, therefore, the proof must accord with the allegation. The allegation, if proved, was intended to aggravate the offence, and augment the punishment; like an allegation of a former conviction of larceny. If not proved, the increased penalty could not be inflicted. If a person is indicted for murder, he is charged with malice prepense, yet, upon such an indictment, he may be convicted of manslaughter only, without proof of malice prepense.
It is no defence to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was therefore murder; but the defendant, in such case, may be properly convicted of the offence of manslaughter- 3 Cush. 181. See the reasoning of Dewey, J., upon this point.
In State v. Smith, 32 Maine, 369, one count in the indictment charged that the deceased was quick with child. It was held that, “ if the fact stated was merely in aggravation, so that it may be stricken out, and yet leave the offence fully described, it may be rejected as surplusage; and that it was *322not requisite to be either alleged or proved that the deceased was quick with child.
J udgment, in: this case, will be a bar to a prosecution for selling liquor, on the day alleged in the complaint, to Nathaniel Tibbetts. Exceptions overruled.
Tenney, C. J., Hathaway, Cutting, May, and Davis, J. J., concurred.