130 Mass. 31 | Mass. | 1880
An indictment for obtaining money by false pretences must set out the offence in such terms as will give the defendant notice of the specific criminal act with which he is charged. Thus, if money is obtained on a sale or exchange of property by means of false pretences, such sale or exchange must be sufficiently alleged, together with the charge that the pretences used were effectual in accomplishing the fraud. Commonwealth v. Strain, 10 Met. 521. Commonwealth v. Goddard, 4 Allen, 312. If more is alleged than is necessary, yet, if it be descriptive of the offence, it must be proved.
It is here alleged that, by means of the false pretences used, a loan from the bank was made to the defendants jointly. This is an allegation essentially descriptive of the offence as charged. It fixes the identity of that act; and the fact that the loan was as alleged must be proved as matter of substance. Downs v. Hawley, 112 Mass. 237. Commonwealth v. Hartwell, 128 Mass. 415.
The evidence at the trial tended to prove a loan to the female defendant only; and the judge, as requested, should have instructed the jury that there was a fatal variance between the proof and allegation, if the money was so lent.
_"Exceptions sustained.
