
    Commonwealth vs. Charles L. Warren.
    Franklin.
    September 15, 1896.
    October 23, 1896.
    Present: Field, C. J., Holmes, Morton, Lathrop, & Barker, JJ.
    
      Name in Indictment—Variance— Law and Fact.
    
    Evidence that a child named Helen Eva K., whom a person is indicted for assaulting, was on several occasions called by the name of Etta It., which was the name given to her in the indictment, is sufficient to make it the province of the jury to determine whether there was a variance.
    
      Indictment, alleging that the defendant, on July 1, 1895, in and upon one Etta Keets, a female child under the age of sixteen years, to wit, of the age of fifteen years, feloniously did make an assault, and her, the said Etta Keets, then and there feloniously did unlawfully and carnally know and abuse.
    At the trial in the Superior Court, before IAlley, J., there was evidence tending to show that the name of the child was Helen Eva Keets ; that she was commonly called Nellie ; that the defendant, when arraigned before the trial justice, pleaded guilty to the same charge, the child being called in that complaint Etta Keets, as in the indictment, and that on the day of the arraignment and previously thereto, while the officers and the defendant were waiting in the grand jury room at Greenfield, the girl having just left the room, and previously on the same day, while the defendant, the girl, and an officer were on the way from Springfield to Greenfield by train, in conversations between the defendant and the officers who had to do with the arrest and prosecution, the girl was called Etta without dissent on the part of the defendant.
    The defendant requested the judge to direct the jury to return a verdict of not guilty, by reason of a variance between the allegations of the indictment and the proof at the trial' as to the name of the female child.
    The judge declined to give the instructions requested, and instructed the jury that, if they found on the evidence that the child was as well and commonly known by the name Etta Keets as by the name Helen Eva Keets, there was no variance; but if they found that her true name was Helen Eva Keets, and that she was not as well and commonly known by the name Etta Keets as by her true name, there was a variance, and the verdict should be not guilty by reason of a variance.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      F. J. Lawler, for the defendant.
    
      J. C. Hammond, District Attorney, for the Commonwealth.
   Barker, J.

There was evidence that the child whom the defendant assaulted was on several occasions called by the name given to her in the indictment. This was sufficient to make it the province of the jury to determine whether there was a variance. Commonwealth v. Gay, 162 Mass. 458. Commonwealth v. Gould, 158 Mass. 499. Commonwealth v. Caponi, 155 Mass. 534.

The question of the identity of the person was not open.

Exceptions overruled.  