Commonwealth v. O'Hearn

Apr 12, 1882
Reporters:
,
Before:
Devens
Devens, J.

The word “ aforesaid,” which follows the name of Charles Rock in the body of the ‍‌‌​‌‌​​​‌​‌‌‌‌​​‌​‌‌‌‌​​​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌​​‌‌‌​‌‌‍complaint, must either receive its full force, and (this being given to it) describe thus the person who has before been called Charles J. Rock, or it must be discarded as surplusage.

In the former ‍‌‌​‌‌​​​‌​‌‌‌‌​​‌​‌‌‌‌​​​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌​​‌‌‌​‌‌‍case, the person to whom the sale is averred to have been made is sufficiently identified with the complainant. Commonwealth, v. Melling, 14 Gray, 388. Commonwealth v. Hagarman, 10 Allen, 401. In the latter case, the complaint would aver a ‍‌‌​‌‌​​​‌​‌‌‌‌​​‌​‌‌‌‌​​​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌​​‌‌‌​‌‌‍sale made to Charles Rock, who might or might not be shown to be the same person as the complainant. Such a complaint would be good, and, if the sale were proved, would ‍‌‌​‌‌​​​‌​‌‌‌‌​​‌​‌‌‌‌​​​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌​​‌‌‌​‌‌‍be maintained by evidence that the person to whom it was made, even if baptized as Charles J. Rock, was known as well by the name of Charles Rock.

In neither aspect would there be ‍‌‌​‌‌​​​‌​‌‌‌‌​​‌​‌‌‌‌​​​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​‌​​‌‌‌​‌​‌​‌‌​‌‌‌​​​‌​​‌‌‌​‌‌‍a variance of the proof from the allegation which would entitle the defendant to an acquittal.

jExceptions overruled.