concurring:
I concur ip the result in this case and in the opinion, except as to the conclusion that the words “false and fraudulent” in the indictment are not surplusage, and therefore must be proved. I think, on the contrary, that under the Virginia statute, which is quoted and construed, these words are mere surplusage which the Commonwealth is not required to prove. Several citations in the majority opinion, as well as the better reason, I think support this view.
It is apparently true that in describing concrete objects as the subjects of larceny, as in the “white horse” and “ivoolen blanket” cases, the prosecution should be held to prove the unnecessary facts alleged because otherwise the defendant might be taken by surprise. In cases like this, however, there can be no surprise because the alleged illegal entry is and must be identified and described with particularity in the indictment. So that, if the entry, the illegal intent and the effect are proved, the statutory crime is established.
Mr. Beale begins his treatment of the question with this language: “An indictment, otherwise sufficient, s not vitiated because it includes immaterial and unnecessary words; these are rejected as surplusage, and need not be proved;” and, after a number of illustrations which show the conflict of opinion, concludes thus: “On principle, it seems difficult to reconcile these cases, with the general doctrine that an unnecessary and sep*567arable allegation may be rejected as surplusage.” Beale’s Cr. PI. & Pr., sections 110-112.
In my view, the precedents which cannot be reconciled with this sound principle should be disregarded.
West, J., concurs with Prentis, P.