Page:Harvard Law Review Volume 10.djvu/134

108 I08 HARVARD LAW REVIEW. spoken of this. ** We do not think it needs argument to show that the Legislature may dispense with a purely formal averment which would give the defendant no additional information, and the omission of which would not prejudice him." ^ The office of the indictment being principally to convey informa- tion of the charge to the defendant, so that he may be prepared at the trial, it would seem that no constitutional right is impaired if the description of the offence is made as accurate as the proof required. Cases have arisen where conviction was practically impossible if the rule of the common law were to be observed. So it was necessary to provide for such cases by statute. The courts have been asked to declare such statutes unconstitutional. It is instructive to read what they have said. By St. 1864, c. 250, § I, (Pub. Sts. c. 214, § 26,) it was provided : "No variance between any matter, in writing or in print, produced in evidence on the trial of any criminal cause, and the recital or setting forth thereof in the complaint, indictment, or other criminal process whereon trial is had, shall be deemed material : provided, that the identity of the instrument is evident, and the purport thereof is sufficiently described to prevent all prejudice to the defendant." An indictment was found charging the defendant with having in his possession with unlawful intent counterfeit bank bills. A copy of the bill was given in which a name on the bill was stated to be P. E. Spinner. At the trial it appeared that the name on the bill was F. E. Spinner. The defendant contended that there was a fatal variance, and that the statute, so far as it affected this question, was unconstitutional. The court refused to adopt this view of the statute. " We entertain no doubt of the con- stitutionality of this section [one], which promotes the ends of jus- tice by taking away a purely technical objection; while it leaves the defendant fully and fairly informed of the nature of the charge against him, and affords him ample opportunity for interposing every meritorious defence. Technical and formal objections of this nature are not constitutional rights."^ For many years the following statute has been in force substan- tially as it is given in Public Statutes, c. 203, § 44: — to one's own use, or fraudulently taking and secreting with intent so to 1 Holmes, J., in Com. v. Freelove, 150 Mass. (^. 2 Com. V. Hall, 97 Mass. 570; Foster, J., p. 573.
 * ' In prosecutions for the offence of embezzling, fraudulently converting