Commonwealth v. Harley
48 Mass. 506
Mass.
1844
Check Treatment
Dewey, J.

The defendants insist that the instruction given to the jury was erroneous in point of law. The general' rule of the common law requires that every indictment should contain a description of the crime with which the party is charged, and a statement of the facts sufficiently minute and particular to identify the precise offence for which the party is to be put on his trial. So too, it is well settled that the government must prove every statement that enters into the substance of the charge, and becomes a material averment. 1 Chit. Crim. Law, 169, 556.

In the present case, it was undoubtedly competent to have charged a conspiracy to cheat and defraud the public generally, as was held in Commonwealth v. Judd, 2 Mass. 329. But giving the greatest latitude to that decision, it would only establish the proposition, that this indictment would have been well maintained had it alleged the conspiracy to have been entered into with the intention to defraud the public generally. Alleging the offence in that form obviates entirely the objection of variance which arises in the present case. But here the allegation is not of an intention to defraud the public generally, but it is specifically charged as a conspiracy to defraud Stephen W. Marsh ; and the question is, therefore, whether evidence of a conspiracy by defendants to cheat the public generally, or any person who might fall in their way and thus be made to suffer from the conspiracy, will support an indictment charging, as this does, the special and particular purpose of the conspiracy to have been to defraud Stephen W. Marsh. Looking at the question in this light, and applying to the case the familiar rules of the criminal law, we cannot avoid coming to the result, that there was a variance, between the allegations and the proof, that was fatal to the maintaining of the indictment. As already remarked, there was no necessity of making any allegation in the indictment of an intent to defraud any particular individual, and especially since the enactment of the Rev. Sts. c. 127, § 14, providing that it shall be sufficient to allege an intent to defraud, *510without naming the particular person intended to be defrauded. The government having elected to set forth in the indictment a special intent to defraud Stephen W. Marsh, as the object of the conspiracy on the part of both the conspirators, Philenia Harley and Robert Harley, that allegation was a material one, and the government was bound to establish it by proof. But that allegation could not be established by proof that the defendants conspired and agreed together to cheat the public generally, or any individual whom they might be able to defraud. Such fact of a conspiracy to cheat Stephen W. Marsh cannot be said necessarily to result, nor can it be legally inferred, from the fact of a conspiracy to cheat the public generally, or any person whom they might meet. Such being the case, the exceptions must be sustained.

New trial granted.