Commonwealth v. Chesley

107 Mass. 223

Opinion

Colt, J.

This indictment is to be taken as sufficient. No question was raised at the trial in regard to it, and it is too late to raise any formal objection to it now.

The evidence objected to was admissible. It was necessary, in order to prove the offence, to show that the pretences used were false, and were effectual in accomplishing the fraud charged. Commonwealth v. Hulbert, 12 Met. 446.

If the defendant relied upon a former acquittal, he should have pleaded it specially, so that issue might have been taken upon it, either to the court or the jury. It cannot be proved under the general issue. Commonwealth v. Merrill, 8 Allen, 545. The record in the present case showed that the former acquittal waa by reason of a variance, and so could not be a defence to this indictment. The offence for which the defendant was here tried and convicted was not the offence described in the former indictment, or there could have been no variance. Commonwealth v. Wade, 17 Pick. 395, 401.

Exceptions overruled.