Where an indictment alleges a cheating in an executed contract, and the proof establishes an attempt to cheat in an executory contract, which was abandoned before its consummation, the variance is fatal to the prosecution.
PEARSON, J.
We will not decide whether the matter charged in the indictment constitutes an indictable offence, as the question is not presented by the facts stated in the special verdict; and a decision of that point is consequently not called for.
There is a fatal variance between the allegations of the indictment and the proof. An executed contract is alleged; whereas, the proof shows only an executory contract: And the fact is, that before the contract was executed, the fraudulent mixing in of dirt, c., was discovered, which caused an abandonment of the original executory contract, and a new contract was then made and acted upon, in which there was no fraud; for the presence of dirt was then known and admitted, and an allowance was made to cover it.
Judgment affirmed.