Page:Federal Reporter, 1st Series, Volume 2.djvu/674

 UNITED STATES V. PATTT, 067 �Bequent time mentioned, thus particularizing eacli of the days on which the deposits were made, 500 circulara coneeming this lottory were so deposited ; and it seema quite impossible to say that here is an allegation of but one ofEence, but that this count must be regarded as charging distinct and inde- pendent offences, committed on different and distinct days, for each of which offences the defendants might be prose- cuted. �In reply, however, the attorney for the United States has urged that this count does properly charge the commission of at least one offence; that the other allegations may be treated as surplusage ; and that if the count be open to the charge of duplicity the objection may be obvia ted by hold- ing that the count aptly charges one offence, and that the other allegations may be disregarded. The difficulty with the position thus urged is that, if the objection to this count can be thus obviated, I do not see wby in every case where an indictment ia bad for duplicity the defect may not be avoided by the selection of one of the offences charged, and then holding the other allegations charging distinct offences to be merely superfluous. I do not thiuk the difficulty can be thus avoided. The true distinction between matter which makes an indictment bad for duplicity, and that which may be treated as mere surplusage, is stated by Mr. Bishop in bis first volume on Criminal Procedure, section 440 : "If an in- dictment describes one offence, and then adds such words only as are in part sufficient to describe another, it is not therefore double ; to be so, it must set out each of the two offences iu adequate terms. The principle is that the allegation which is mere surplusage, and therefore void, does no harm. The like case has already been mentioned where an offence not in its nature contimdng is charged to bave been committed on more days than one; if only one of the days is adeqiiately alleged the rest is surplusage and the indictment good." �Again, at section 388 of same volume, the author says: "It is to be obBorved that we are not now speaking of contin- ning offences, properly laid under a continuando. • * * * Tfaough the offence is in its nature committed on a single day, ����