Commonwealth v. O'Hearn

132 Mass. 553, 1882 Mass. LEXIS 143

• Court: Massachusetts Supreme Judicial Court
• Decided: April 12, 1882
• Status: Published

Opinion

Devens, J.

The word “ aforesaid,” which follows the name of Charles Rock in the body of the complaint, must either receive its full force, and (this being given to it) describe thus the person who has before been called Charles J. Rock, or it must be discarded as surplusage.

In the former case, the person to whom the sale is averred to have been made is sufficiently identified with the complainant. Commonwealth, v. Melling, 14 Gray, 388. Commonwealth v. Hagarman, 10 Allen, 401. In the latter case, the complaint would aver a sale made to Charles Rock, who might or might not be shown to be the same person as the complainant. Such a complaint would be good, and, if the sale were proved, would be maintained by evidence that the person to whom it was made, even if baptized as Charles J. Rock, was known as well by the name of Charles Rock.

In neither aspect would there be a variance of the proof from the allegation which would entitle the defendant to an acquittal.

jExceptions overruled.