Commonwealth v. Burk

Hoar, J.

The exceptions taken to the refusal of the presiding judge to instruct the jury as to matters affecting the credit of the witness cannot prevail, because they related wholly to a question of fact, which is exclusively within the province of the jury. The extent to which comments upon the facts may properly be made by a judge at a trial, is a matter of sound judicial discretion, with which we cannot interfere, where no rule of law is violated.

The other exceptions relate to the identity of the offence proved with that charged in the complaint. It is very clear, upon principle and authority, that the transaction which is the subject of the complaint must be the same with that to which the evidence relates. It is equally clear that the time alleged as that of the commission of the offence need not be proved as laid. The complaint in the case before us charged the commission of the offence on the 28th of October; and the officer who made the complaint testified that it truly stated the time which was disclosed to him by the person to whom the liquor was sold. On the trial that person testified that the only sale made to him by the defendant was in the month of September. The defendant thereupon contended that he could not be convicted upon this evidence, because there was a variance between the proof and the allegation; that is, that the sale which was intended in the complaint was a different one from that to which the evidence referred.

The court submitted the whole matter to the jury, as a question of fact; with the instruction “ that if the complainant, when he made the complaint, intended to complain of a sale other than that testified of by McCarty, and did not have in his mind or intend to complain of such sale, he could not be convicted upon this evidence.” This was in accordance with the request of the defendant.

But it was obviously within the range of reasonable probability that the complainant had received information from McCarty, which induced him to complain of the sale actually made, and that either he had no special reference in his complaint to the precise time at which it was made, or that he *407misunderstood the time, or that McCarty was mistaken in testifying to the sale as having been made in September, when it was made in October. In either of these cases, the question would be not as to the identity of the transaction, but of the time merely ; and the presiding judge gave instructions to the jury which we think entirely correct, and adapted to the facts as the jury might find them to exist upon the evidence. The true legal distinction was stated, between a case where there was a charge of one offence, and proof of a distinct and different offence, on the one hand, which would require an acquittal; and a mere discrepancy between the time named in the complaint, and the time fixed by the proof, on the other, which would not be a bar to a conviction; and the jury were left to decide the truth upon the evidence. Exceptions overruled.