Commonwealth v. Soper

133 Mass. 393

• Court: Massachusetts Supreme Judicial Court
• Decided: September 2, 1882
• Status: Published

Opinion

Morton, C. J.

The indictment alleges that, on the third day of January, 1882, a complaint was made before W: liam S. Dana, a trial justice, against one Thompson, charg lg said Thompson with larceny; that Thompson was arrest -id and brought before the justice, and an examination had uj on the complaint on the said third day of January ;• and that,; t such examination, the defendant committed the perjury for which he is indicted. Upon the production of the record of the trial justice, in support of the indictment, it appeared that the complaint against Thompson was dated on the thirty-first day of December, 1881, but that the arrest and examination were on the said third day of January.

The defendant asked the judge to rule that there was a fatal variance between the allegations and the proofs. We are of opinion that the judge rightly refused so to rule.

Without discussing the question as to what might be the rule at common law, it is clear that, under our statutes, there is no material variance of which the defendant can avail himself. Pub. Sts. g. 214, § 26. There is no room to doubt that the complaint offered in evidence is the same as the one described in the indictment. In the words of the statute, “ the identity of the instrument is evident, and the purport thereof is sufficiently described to prevent all prejudice to the defendant.”

The variance therefore cannot be deemed material. Commonwealth v. Hall, 97 Mass. 570. Commonwealth v. McKean, 98 Mass. 9. Commonwealth v. Hatfield, 107 Mass. 227.

Exceptions overruled.