The omission of a figure cannot be supplied in an indictment.
THE defendant was indicted on the statute of 5 Eliz. cap. 14, for forging a deed, purporting to be sealed and delivered by James Houston, to the prisoner, Samuel Street, for a tract of land on the South side of Neuse River; beginning at a stake, in the aforesaid Street’s line, running South, twenty West, to a pine, &c.
*159The deed produced, corresponded with that recited in the indictment, except in the description of the courses, which in the first line was South twenty-two West, instead of South twenty West.
Gaston for the prisoner.
The cases to be found in the books on the subject of variance, even in relation to contracts and civil proceedings, will go the length of shewing this mistake to be fatal: but with respect to criminal proceedings, the law requires still greater strictness, and will not allow so severe a punishment, as this statute denounces, to be incurred, under an indictment which is not supported in all its material parts.
The charge against the prisoner is for forging a deed, which purported to be a conveyance of a tract of land, circumscribed by the boundaries specified in the indictment; but the State is about to prove him guilty of forging a deed for a tract of land differently bounded; and from this variance in the courses there results, also, a difference in the quantity. The mis-recital extends beyond the mere form of the deed, and affects the substance itself. Hence it will be found that none of the cases will warrant the court to intend, that the deed produced is the one alledged, because the fault consists in a variance of sense, and of a thing material.—The figure which is omitted, cannot be supplied, on the principle that the word “despaired,” was supplied in an indictment of perjury, which undertook to recite a former indictment for an assault; as in the case of the King versus May, Douglas 183; because the *160indictment in the present case, has a plain, consistent meaning. Nor can it be supplied on the ground that the letter “S.” was, in the case of the King versus Beach, Cowper 229; for here the omission of the figure changes the sense. Lee’s case in Leach, 353, and Cogan’s case, Ibid, 389, are authorities in point to shew that this variance is fatal.
The Attorney-General,
after noticing the destinction between undertaking to recite the tenor of an indictment, and the substance, as in the present case, submitted the question.
The Court directed the jury that the proof was insufficient to authorize a lawful conviction of the prisoner upon the indictment. That the variance was in a substantial part, and the omission of the figure could not be supplied, by any construction warranted by the principles of law.
Verdict, not guilty.