114 Mass. 263 | Mass. | 1873
The defendant, being lawfully required to depose the truth in a proceeding in the course of justice, gave his testimony, which was reduced to writing, and signed by him. At the trial his testimony was proved precisely as laid in the indictment, and no question is made that it was upon a matter material to the issue on trial. The substance of it was, that he had not seen, nor had in his possession, any deed or paper purporting to convey any interest in real estate, from the heirs of Samuel Holt to Mary Holt, late of New Salem, deceased. The assignment of perjury is as follows, “ whereas in truth and in fact, he, the said Arad F. Terry, had theretofore seen and had in his possession a deed of quitclaim, signed and executed by heirs of the said Samuel Holt, late of said New Salem, deceased, whose names and the number of whom are to the jurors unknown, purporting tc convey and conveying to the said Mary Holt, late of said New Salem, deceased, certain real estate situated in said New Salem, and being the farm of which the said late Samuel Holt of said New Salem, deceased, died seised and possessed, and on which the said late Samuel Holt lived at the time of his decease.”
In proof of this assignment it was shown at the trial that the defendant had in his possession a deed purporting to convey certain real estate from the heirs of Samuel Holt to Polly Holt; that the person named Polly Holt in the deed was the same person named Mary Holt in the indictment, and that the defendant knew this fact.
The defendant’s claim that this is a fatal variance cannot be sustained. The only variance alleged is that the grantee in the deed is described as Polly Holt, instead of Mary Holt, and we therefore assume that the deed proved in all other respects corresponded to the description in the indictment.
This variance, even if it would be fatal at common law, is rendered immaterial by the provisions of St, 1864, c. 250, § 1. The
Hxoeptions overrule 1.
