State v. . Corbett

46 N.C. 264

Opinion

Pearson, J.

We will not decide whether tbe matter charged in tbe indictment constitutes an indictable offence, as tbe question is not presented by tbe facts stated in tbe special verdict; and a decision of that point is consequently not called for.

There is a fatal variance between tbe allegations of tbe indictment and tbe proof. An executed contract is alleged; whereas, tbe proof shows only an executory contract: And tbe fact is, that before tbe contract was executed, tbe fraudulent mixing in of dirt, &c., was discovered, which caused an abandonment of tbe original executory contract, and a new contract was then made and acted upon, in which there was no fraud; for tbe presence of dirt was then known and admitted, and an allowance was made to cover it.

Judgment affirmed.