"Whatever is alleged in a count, which is not necessary to constitute the offense, may be rejected as surplusage.

An averment in an indictment, descriptive of the offense charged, if made under a videlicit, cannot be rejected as surplusage.

On the trial of an indictment for attempting to procure an abortion, evi- dence to prove that the prosecutrix, who had been examined as a witness for the people, had had sexual intercourse with other persons than the defendant, is inadmissible.

THE plaintiff in error was tried and convicted at the st Lawrence County Court of Sessions of an attempt to pro- cure an abortion The first count of the indictment charged "that George Crichton, late of the town of Oswegatchie, in the county of st Lawrence, heretofore, to wit: on the twenty-second day of June, in the year of our Lord one thousand eight hundred and sixty-one, with force of arms, &c, at the town of Oswegatchie, in the said county of st Lawrence, and on divers other days and times, did then and there advise and attempt to procure, and did procure one Eliza- beth Dixon to take certain medicines, drugs and substances, to wit: certain pills, known as "DR James Clark's Female Pills," which the said George Crichton then and there pro- duced for the purpose and with the intent of procuring the miscarriage of her, the said Elizabeth Dixon, she, the suid Elizabeth Dixon, then and there being a pregnant "And the jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to wit: at the time and place aforesaid, one Elizabeth Dixon was then and there a pregnant woman; that the said George Crichton, for the purpose and with intent to cause and produce the miscar- riage of her, the said Elizabeth Dixon, she being such pregnant woman as aforesaid, did advise and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances or pills to the jurors aforesaid unknown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York.

The trial took place in March, 1863, before WILLIAM C BROWN, county judge, and the justices of the sessions.