In State v. McCoy, 14 N. H. 364, where the indictment charged the respondent with stealing the property of one Prentiss, and Prentiss testified that the property stolen belonged to himself and his partner — held, that the prisoner was entitled to a verdict. In State v. Copp, 15 N. H. 212, 216, it is held that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge can be rejected, — in other words, that descriptive averments cannot be rejected, but must be proved as alleged; and see numerous cases cited.

The principle that applies to surplusage is, that where the averment may be wholly omitted, without affecting the charge against the prisoner and without detriment to the indictment, it may be treated as surplusage.

In State v. Canney, 19 N. H. 135, the charge was breaking and entering the store of one M., and in the shop aforesaid did commit larceny. Held bad on demurrer.

State v. Clark, 23 N. H. 429, was an indictment for • fraudulently altering the assignment of a mortgage alleged to have been made by one Burnham to Noah Clark, which assignment was alleged to be signed, sealed, and witnessed by two witnesses, and duly and legally recorded, etc. Held, that though the i-ecording of the assignment need not have been alleged, yet being alleged, it must be proved.

In this case, the gist of the offence is the conspiracy, and that must be proved, or the indictment fails. But the evidence tended to show that there was a conspiracy, but not to do the thing charged. The *226charge is of a conspiracy to charge Baer with a “ felonious assault upon A. H., with intent the said A. H. then and there feloniously to ravish and ca2’nally know, by force and against her will.” The conspiracy proved was, to charge Baer with having seduced and committed the crime of adultery with said A. H. The offence which they were charged with conspiring to commit, and the 02ie which they were proved to have conspired to commit, are entirely different, and that being a material averment must be proved as laid. eUnder this charge the respondents could have no notice to prepare to meet such a charge as was proved; their offerice was not fully and plainly, substantially and formally, described to them. The conspiracy was charged to be for one purpose, and proved to be for another, This is a vailance in a material averment.

In Commonwealth v. Harley, 7 Met. 506, the defendants were indicted for a conspiracy to defraud A., but the proof was of a conspiracy to defraud the public generally. Held, that the proof did not sustain the indictment. So in the case at bar, the variance between the allegation and the proof was fatal, and the indictment was not sustained by the proof.

Case discharged.