Wright v. United States

The statute under which the indictment in this case is found (section 1543, Mansf. Dig. section 886, Ind. T. Ann. St. 1899 ), reads as follows: “If any'woman shall endeavor privately, either by herself or the procurement of others, to conceal the death of any issue of her body,- male or female, that it may not come to light, although it can not be proved that it was murdered, every such mother shall suffer,” etc. The indictment followed the statute, and, in addition, alleged that the body was concealed in the woods. Clearly, this allegation as to where the body was concealed is surplusage. The gist of the offense consists in concealing the fact of the death. In the case of State vs Ellis, 43 Ark. 93, it is held: “According to all of the precedents *118and authorities, the indictment for the offense concealing death of child must expressly and distinctly allege the child to be dead, although it need not state whether it died'before, at, or after its birth, nor in what manner or by what acts the mother endeavored to conceal its death.” Unnecessary allegations, not descriptive of the offense charged, may be treated as immaterial, and pass unnoticed. Whart. Cr. Ev. 109; 1 Bish. Cr. Proc. 478. The allegartion that the body was concealed in the woods is not descriptive of the offense, and the court, properly treated it as surplusage, and the instruction was properly refused.

Exception is taken to the fact that the court allowed counsel for defendant but 20 minutes in which to argue their case. The time to be allowed for argument rests in the sound discretion of the court, and an abuse of this discretion is error. • 1 Bish. Cr. Proc. 313. In this case there were but four witnesses offered by the government, the defendant introducing no proof whatever. And the record further shows affirmatively that counsel for defendant did not consume the time actually allowed. Had they done so, and then requested the court for further time, it would probably have been granted. ■ We think, however, in view of the large volume of business before the trial courts, that in this case, where the facts were not complicated, and the testimony short and uncontradicted, the time given for argument was sufficient.

Finding no error in the proceedings below, the judgment is affirmed.