Commonwealth v. Ashton

Morton, J. The second count of the indictment is under the Gen. Sts. c. 161, § 57. It follows substantially the words of the statute, and is sufficient. The general rule is, that where an offence is created by statute, which sets forth with certainty all the elements necessary to constitute the offence intended to be punished, an indictment is sufficient which follows the words of the statute. Commonwealth v. Barrett, 108 Mass. 302, and cases cited. The words of this statute import that a person, to be guilty, must play, practise or use some game, device, sleight of hand, pretensions to fortune telling, trick or other means, by the use of cards or other implements or instruments, with the intent to defraud, and thereby fraudulently induce some other person to part with his property. It is not necessary, as the defendant contends, to allege more particularly these facts, because they are included in the allegations of the indictment, following the words [386] of the statute. Such allegations would be but repetitions, which would not add to the certainty or precision of the indictment. It is true that, when it is practicable, it would be proper tc describe the game, device, instruments and means by which the defendant fraudulently obtained the property of another; but the allegation in the indictment, that these are unknown to the grand jury, is a sufficient excuse for the want of that particularity of statement which might otherwise be required. Commonwealth v. Webster, 5 Cush. 295. Commonwealth v. Sawtelle, 11 Cush. 142. The exceptions to the ruling of the court that there was no variance between the allegations and the proofs cannot be sustained. The allegation that the defendant obtained of Fletcher “divers promissory notes current as money in said Commonwealth ” was satisfied by proof that he obtained bank-bills. Commonwealth v. Butts, 124 Mass. 449. The court also correctly ruled that it was not necessary to prove that cards were used by the defendant, but it was sufficient to prove that the defendant fraudulently obtained bank-bills of Fletcher by a game, by the use of some implement or instrument not known to the grand jury. The statute was intended to provide against fraudulently obtaining property of another by any game, device, trick or means, by the use of cards or of any other implement or instrument, and is not, as the defendant contends, limited to the use of any other implement or instrument similar to cards. Though the allegation is that the defendant used “ cards and other implements and instruments,” it is sustained by proof that he used either cards or any other implement or instrument. Commonwealth v. Welsh, 1 Allen, 1. Commonwealth v. Kimball, 7 Gray, 328. Exceptions overruled.