Commonwealth v. Ginsberg
286 Mass. 326
Mass.
1934
Check Treatment
Rugg, C.J.

The defendant was indicted for perjury. The first count charged that on a stated date at the trial of a suit in equity between Reuben A. Grossman, as petitioner, and Benjamin Ginsberg, as respondent, the defendant was sworn as a witness, whereupon the question became material to the issue on trial whether the defendant visited the home of said Reuben A. Grossman, in Quincy, with one Harry K. Stone twice during the month of June, 1929, and that as to this question the defendant did falsely, wilfully and corruptly testify and say in substance and effect that he did not visit the home of said Grossman with said Stone twice during the month of June, 1929, and that he never visited the home of said Grossman with said Stone. The second count charged that at the same trial the defendant was sworn as a witness, whereupon the question became material to the issue on trial whether said Ginsberg had written the words “as per agreement with Grossman” upon a described receipt for $500, that as to this question said Ginsberg did falsely, wilfully and *328corruptly testify and say in substance and effect that he, the said Ginsberg, did not write the quoted words upon the described receipt. There was testimony from divers witnesses that Ginsberg was at the house of Grossman, in Quincy, with Harry K. Stone in May or June of 1929, and in the spring of 1929. There was other evidence supporting the allegations of the indictment.

The defendant excepted to the denial of his request for instructions: “Evidence that the defendant was in the home of Reuben A. Grossman ‘sometime in 1929’ or ‘in the spring of 1929’ does not support the allegations contained in count 1 of the indictment and you must therefore find the defendant not guilty as to that count.” At the same time the jury were instructed that the Commonwealth must prove the allegations in the indictment precisely as charged. There was evidence to support the allegations of count 1. There was no error in the denial of the request because the trial judge was not required to charge the jury upon a fragment of the evidence. The case was to be considered on all the evidence. Commonwealth v. Trippi, 268 Mass. 227, 231.

Subject to the exception of the defendant, a request for instruction was denied to the effect that if the evidence shows that the words “as per agreement with Grossman” on the receipt were written prior to the signing by Ginsberg and with the consent of both parties it was not material to the question in issue who did the actual writing. There was ample evidence to support the charge. The defendant testified that those words on the receipt were not in his handwriting. There was no error in the denial of this request. It was argumentative in nature. The jury were instructed that if those words written on the receipt “were not material to the issue, then such statements alleged in count 2 are not perjury.” This sufficiently protected the rights of the defendant.

The defendant has argued that there was a fatal variance between the allegation and proof in this respect: the indictment charged that the perjury was committed in a suit between Reuben A. Grossman as petitioner and Ben-*329jam in Ginsberg as respondent while the proof showed that the Colonial Realty Corporation was joined with Ginsberg as respondent. No exception was saved during the trial covering this point. Therefore it is not open to the defendant. Commonwealth v. Dascalakis, 246 Mass. 12, 24, 25. The principle of Commonwealth v. Andler, 247 Mass. 580, to the effect that this court of its own motion will take notice that the complaint sets forth no crime known to the law, is utterly inapplicable. The indictment in the case at bar charged a crime. The defendant failed to avail himself of the opportunity open to him at the close of the trial to raise the point now argued.

Exceptions overruled.