Commonwealth v. Parker

The statute provides that “ whoever by the game of three-card monte, so called, or any other game, device, sleight of hand, pretensions to fortune telling, trick or other means whatever, by the use of cards, or other implements or instruments, fraudulently obtains from another person property of any description, shall be punished as in case of larceny of property of like value.” Gen. Sts. e. 161, § 57.

To sustain an indictment under this statute it must be shown that the defendant fraudulently obtained property of another by a game, device, trick or other means, using “ cards or other implements or instruments.”

The indictment in this case is broader than the statute. It charges that the defendant fraudulently obtained the property described, “by means of a game, device, sleight of hand and *114trick, and by the use of cards and other implements, instruments and means.” Under this indictment it would not be necessary to prove that the defendant used cards or other implements or instruments, but he might be convicted by showing that he obtained the property by some trick or device, by the use of any other means, such as betting, or false representations or pretences.

The words “ and means ” cannot be rejected as surplusage ; they are not immaterial, but change the character of the acts charged. The indictment does not follow, but enlarges, the statute, and for this reason, without considering the other objections urged to it, we are of opinion that it is defective.

Exceptions sustained.