(after stating the facts.) Appellant was indicted under section 3428 of Sandels & Hill’s Digest, which is as follows: “It shall be unlawful for any person, with the intent to kill, maim or paralyze any fish or other water animal, to cast, drop or otherwise deposit in any river, creek, lake or pond, or in any other stream or body of water within this state, any explosive material or substance, or any intoxicating or stupefying liquid, drug; vegetable or fruit, or to take from any river, creek, lake, pond or other body of water within this state, any fish so stupefied, intoxicated, or killed.”
The offense charged was of a local character. The allegation that the defendant cast, dropped, or deposited the explosive or substance used in some body of water in Lafayette county, with intent, etc., was a necessary allegation, and if it alleged that it was dropped or deposited in a particular or known body of water, this becomes descriptive of the offense, is material, and must be proved as laid.
“Where an indictment contains a necessary allegation, which cannot be rejected, and the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description- as well as the main part of the indictment.” 10 Am. & Eng. Ene. Law, p. 558, and cases cited; State v. Anderson, 30 Ark. 131; State v. McMinn, 34 Ark. 160; Bryant v. State, 62 Ark. 459; Jenks v. State, 63 Ark. 312; Adams v. State, ante, p. 188.
There was no evidence that the offense was committed by casting or dropping the explosive in Tyler lake. On the contrary, the proof shows that it was in Bodcaw creek, one-half mile from the lake by land and one mile by the creek.
The circuit court erx*ed in instructing the jury that they might convict the defendant, if they found beyond a reasonable doubt from the evidence that the defendant did explode or deposit any dynamite, etc., ivithin half a mile of a wide place in said creek known as Tyler lake. Instruction numbered 3 asked by defendant, the converse of that given by the court, should have been given.
Does the indictment charge more than one offense?
Bishop on Statutory Cxúmes, § 244, says: “Provisions in the alternative are common in legislation, and the rule is that whatever is within any one of the disjunctively connected clauses is within the statute. Thus, if, as is common in legislation, a statute makes it punishable to do a particular thing specified, ‘or,’ another thing, ‘or’ another, one commits the offense who does any one of the things, or any two or more, or all cjf them. And the indictment may charge him with any one, or with any larger number, at the election of the pleader; employing, if the allegation is of more than one, the conjunction, ‘axxd’ whex-e ‘or’ occurs in the statute. ‘The rule,’ it was once observed,‘is undoubtedly limited in its application to cases where the off exxses ex’eated in a statute are not repugnant. ’ And whatever be the form of the allegation, the proofs need sustain only so much of it as constitutes a complete offense.” See also 1 Bishop, Or. Proc. § 436, where he says again that “a statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has ‘or,’ and it will not be double, and it will be established at the trial by the proof of any one of them. Thus, in liquor selling, where the statute forbids the unlicensed sale of, for example, rum, brandy, whiskey or gin, the interpretation is that the offense may be committed by selling any one or two of the specified liquors or all of them; and whichever is done in one transaction, there is but one crime. So the indictment charges the offense in whatever form the pleader elects; as that the defendant sold rum, brandy, whiskey, and (not or) gin; or that he sold rum and gin.” See Bishop, New Or. Law, § 799; State v. Murphy, 47 Mo. 274; Fahnestock v. State, 102 Ind. 156; Bradley v. State, 20 Fla. 738.
The indictment in this case charges but one offense, and is not double. It is not therefore obnoxious to the objection urged against it by the counsel of the appellant.
For the error indicated, that is to say, that the allegata et probata do not correspond, the judgment is reversed, and the cause is remanded for a new trial.
Absent Wood, J. Battle, J., was of the opinion that the indictment charged two offenses.