Commonwealth v. McKean

98 Mass. 9

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

The point of variance cannot avail the defendant. The identity of the check or “ order for money ” offered in testimony at the trial with that set forth in the indictment is evident; and it is described so fully that no prejudice could have been caused to the defendant by the omission to set forth the revenue stamp which is affixed to it.

Without determining whether a revenue stamp can be deemed so far a part of an instrument in writing as to be, within the rule of the common law, essential to its description when it is alleged to be set forth according to its tenor, we are of opinion that the defendant is precluded by the provisions of the statute (St. 1864, c. 250, § 1) from availing himself of the alleged defect in the case before us. Exceptions overruled.