At the trial of this case in the court of common pleas, several exceptions were taken to the rulings of the court, upon which the defendant moves for a new trial.
In the first count in the indictment, the defendant is charged with giving in his vote for governor, lieutenant governor, and senators for the district of Middlesex, at a town meeting of the inhabitants of Tewksbury, duly holden for that purpose; he knowing that he was not a qualified voter in the said election. The first objection in support of the motion for a new trial is, that it was not proved by competent evidence, that the said town meeting was duly holden, as alleged, because a copy of the warrant for calling the meeting was admitted in evidence, which was not the best evidence, and that the original should have been produced. The answer is, that the 'warrant was duly recorded, and that the records of the town, which were given in evidence, containing a copy of the warrant, were competent evidence of the proceedings of the town, and of the warning of the meeting. And of this we have no doubt. It is the usual evidence in such cases. Briggs v. Murdock, 13 Pick. 305. Williams v. School District in Lunenburg, 21 Pick. 75. Houghton v. Davenport, 23 Pick. 235.
The next objection is, that it does not appear that the inhabitants had been warned as directed by the warrant; because the officer was directed to warn the inhabitants, by posting up a copy of the warrant “ eight days, and at least over two Sundays, before the time of holding the meeting; ” and that the return did not show that the copy was posted up over two Sundays, as directed. But we think this does appear with sufficient certainty. The officer certifies in his return, that he had posted up the notice required, eight days before the time of holding the meeting; and as the time of holding the meeting *56was on Monday, eight days before must have included two Sundays.
It is also objected that the selectmen, who presided in the meeting, were not proved to have been legally chosen and qualified ; but it does appear that they were acting selectmen, which is sufficient. The official acts of officers de facto, in conformity to the duties appertaining to their office, are held lawful when no one is thereby injured. Commonwealth v. Fowler, 10 Mass. 301.
Other objections, have been made, founded on an alleged variance between the evidence and the facts laid in the indictment, only one of which appears to be material.
In the second count, the defendant is charged with giving a false answer to a question propounded to him by the selectmen, for the fraudulent purpose of procuring his name to be inserted on the list of voters of the said town; and by the report of tiie evidence it appears that the defendant’s name was already on the said list, at the time said false answer was given. We are of opinion that this variance is material, and that the allegation cannot be rejected as surplusage. If the defendant’s intention, as laid in the indictment, were thus rejected, it would not appear, except argumentatively, that the false answer charged was within the meaning and purview of the statute; for certainly the defendant is not liable for every false answer he might give to the selectmen, but for such only as the statute was intended to prohibit. The words of the statute, (Rev. Sts. c. 4, § 8,) on which the second count is framed, are, “ if any person shall wilfully give any false answer to the selectmen or moderator, presiding at any election, he shall forfeit, for each offence,” &c. Generally, the quo animo, with which an act is done, is material, as well as the quo modo, and must be truly stated. And in charging an offence against a statute, it is not always sufficient, in all cases, to pursue the words of the statute. Thus in an indictment for obtaining money or goods by false pretences, the indictment must state what the false pretences were. Mason’s case, 2 Leach, (3d ed.) 554. So for maliciously killing cattle, the species of cattle must be specified *57Archb. Crim. Pl. (1st ed.) 24. So in an action against a party /or bribery, it is not sufficient to allege the offence in the words of the statute, that the defendant did receive a gift or reward, without specifying what he received as a reward. Davy v. Baker, 4 Bur. 2471.
In Jenks’s case, 2 East P. C. 514, the defendant was charged with breaking, &c. the house of J. D., with intent to steal the goods of J. W.; and it appeared in evidence that no goods ol J. W. were in the house, but that his name had been inserted, by mistake, for that of J. D. It was held, that the words “ of J. W.” could not be rejected as surplusage; the words being sensible and material; it being material to lay truly the property in the goods, and the defendant’s intention in breaking and entering the house.
If the intention with which an act is done be material to constitute the offence charged, such intention must be truly laid in the indictment; and it must be laid positively; and the want ol a direct allegation of any thing material, in the description of the substance, nature, or manner of the offence, cannot be supplied by any intendment or implication whatsoever. Any variance, therefore, in this respect, between the allegations in the indict ment and the evidence, is fatal. 2 Hawk. c. 25, § 60.
For these reasons, we are of opinion that the defendant i& entitled to a new trial, unless the district attorney should elect to enter a nolle prosequi as to the second count; in which case judgment may be rendered on the first count.
A motion was made in arrest of judgment, but we think t very clear that this motion cannot be sustained.
New trial nisi.