Commonwealth v. Varney

Massachusetts Supreme Judicial Court

Commonwealth v. Varney

64 Mass. 402

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1852

StatusPublished

This text of 64 Mass. 402 (Commonwealth v. Varney) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Varney, 64 Mass. 402 (Mass. 1852).

Pincite

Opinion

Metcalf, J.

The exception taken to the refusal of the court to quash the indictment must be overruled. The statute of additions extends only to the party indicted. An indictment, therefore, need not describe, by any addition, the person upon whom the offence therein set forth is alleged to have been committed. The King v. Sulls, 2 Leach, (3d ed.) 1006; 2 Hale P. C. 182; 1 Chit. Crim. Law, 211.

The exception taken to the admission of the newspaper in evidence must also be overruled. The defendant insists that as the indictment alleged that the libel was published by him on the 21st of November, in the Lowell Courier and Journal, evidence that it was published by him in a newspaper of that name, bearing date November 19, did not support the indictment ; that there was a variance between the allegation and the proof. But there was no such variance. Even if it had been necessary, in order to sustain the indictment, to prove that the defendant published the libel on the day alleged, that fact might well have been proved by showing that he published, on that day, a libel contained in a newspaper dated and issued on an earlier day. And the exception does not show that the proof did not exactly conform to the allegation. But it was not necessary to prove that the libel was published on the day alleged. Proof that it was published at any time within the statute of limitations was sufficient to sustain the [404]*404indictment. Archb. Crim. Pl. (5th Amer. ed.) 116; 1 Stark. Crim. Pl. (2d ed.) 61; 11 Met. 574; 3 McLean, 89. If the indictment had alleged that the libel was published in a newspaper called Lowell Courier and Journal, bearing date November 21, proof that it was published in a newspaper of that name, bearing date on any other day, would not have supported the indictment. The date would have been matter of description, and it would have been as necessary, in order to avoid a variance, to prove a publication in a newspaper of that date, as in a newspaper of that name. But the indictment as drawn, was sustained by the evidence excepted to. Coxon v. Lyon, 2 Campb. 307, note; 2 Greenl. Ev. § 12; 2 Gabbett Crim. Law, 227. Exceptions overruled.

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Metcalf, J.

The exception taken to the refusal of the court to quash the indictment must be overruled. The statute of additions extends only to the party indicted. An indictment, therefore, need not describe, by any addition, the person upon whom the offence therein set forth is alleged to have been committed. The King v. Sulls, 2 Leach, (3d ed.) 1006; 2 Hale P. C. 182; 1 Chit. Crim. Law, 211.

The exception taken to the admission of the newspaper in evidence must also be overruled. The defendant insists that as the indictment alleged that the libel was published by him on the 21st of November, in the Lowell Courier and Journal, evidence that it was published by him in a newspaper of that name, bearing date November 19, did not support the indictment ; that there was a variance between the allegation and the proof. But there was no such variance. Even if it had been necessary, in order to sustain the indictment, to prove that the defendant published the libel on the day alleged, that fact might well have been proved by showing that he published, on that day, a libel contained in a newspaper dated and issued on an earlier day. And the exception does not show that the proof did not exactly conform to the allegation. But it was not necessary to prove that the libel was published on the day alleged. Proof that it was published at any time within the statute of limitations was sufficient to sustain the [404]*404indictment. Archb. Crim. Pl. (5th Amer. ed.) 116; 1 Stark. Crim. Pl. (2d ed.) 61; 11 Met. 574; 3 McLean, 89. If the indictment had alleged that the libel was published in a newspaper called Lowell Courier and Journal, bearing date November 21, proof that it was published in a newspaper of that name, bearing date on any other day, would not have supported the indictment. The date would have been matter of description, and it would have been as necessary, in order to avoid a variance, to prove a publication in a newspaper of that date, as in a newspaper of that name. But the indictment as drawn, was sustained by the evidence excepted to. Coxon v. Lyon, 2 Campb. 307, note; 2 Greenl. Ev. § 12; 2 Gabbett Crim. Law, 227. Exceptions overruled.

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Bluebook (online)

64 Mass. 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-varney-mass-1852.

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