Commonwealth v. Brown , 81 Mass. 189 ( 1860 )

Bigelow, J.

This indictment wants that certainty and precision in its material allegations, which are essential in criminal pleading, in order that the defendant may have the offence, with which he is charged, fully and plainly, substantially and formally, described to him.

1. It contains no description or allegation by which the parcel of land can be known or identified, which the defendant is charged with having conveyed without disclosing an existing incumbrance thereon. This is a fatal defect. Under St. 1855, c. 177, on which this indictment is founded, the substance of the offence cannot be alleged without such description or allega tian. As, in the case of larceny, it would be wholly insufficient to allege that a person stole certain articles of personal property in a certain town or city without enumerating or describing them in any way, so in this case an averment that the defendant conveyed a certain parcel of land in the city of Salem, without any other terms of description, is bad for uncertainty. There is nothing by which to fix the identity of the offence. The indictment lacks certainty to a common intent. The defendant may have owned other parcels of land in the city of Salem, which he conveyed to the prosecutor on the day alleged. From the indictment alone therefore it is impossible to say with certainty to what parcel of land the charge relates, or to know that the conveyance proved at the trial was of the same parcel as that on which the indictment was founded. Whenever, in charging an offence, it is necessary to describe a house or land, the premises must be set out in terms sufficiently certain to identify them. Thus, in an indictment for forcible entry and detainer, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belonging to a house, is bad; for the same certainty is required as in a declaration'in ejectment. 1 Hawk. c. 64, § 37. 3 Chit. Crim. Law, 1122.

2. We are inclined also to the opinion that there was a fatal variance between the allegations in the indictment, describing the deed given by the defendant to the prosecutor, and the deed as proved at the trial. It is averred that the defendant, “ by a certain deed of warranty, did make a conveyance of a certain parcel of real estate.” The deed offered in evidence was a conveyance only “ of the right, title and interest ” of the grantor in the land, with a covenant of warranty against the lawful claims and demands of all persons. It was not therefore, in a strict sense, a deed of warranty of the land, but only a warranty in a limited sense, restricted to the grantor’s right, title and interest therein. Allen v. Holton, 20 Pick. 458. Sweet v. Brown, 12 Met. 175. Besides, it appears by the deed that the land was conveyed subject to a mortgage which is set out and excepted from two covenants. It was, in fact, a conveyance only of the grantor’s right, title and interest to the equity of redemption of the premises. But it is not so described in the indictment.

Judgment arrested.