#### THE STATE v. JOHN CORBETT.

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.

*265This was an indictment for cheating, tried before bis Honor Judge Bailey, at the Spring Term, 1854, of Bertie Superior Court. The indictment was as follows:

BERTIE COUNTY, Sot.,

*Superior Court of*Law, *Fall Term,*1852.

“ The jurors for the State, upon their oath, present that John Corbett, late of said county, at and in Bertie county aforesaid, on the 10th day of August, in the year 1852, and from thence until the taking of this inquisition, did use and exercise the business and calling of making, putting in barrels, and selling tar, and during that timé did sell the said tar by measure or barrels, and that the said John Corbett then and there, and during the space of time aforesaid, fraudulently intending and contriving to cheat and defraud all the good citizens of the State aforesaid, whilst he so exercised his aforesaid business, did then and there knowingly, wilfully, fraudulently, and deceitfully put and place and cause the same to be done, large quantities dirt, earth, and stones inside of and into a certain barrel of tar, and did then and there mix together, within the said barrel, the said tar with such dirt, earth, stones and rubbish, so as to cause the said barrel to be and appear as and for a barrel of tar; and that the said John Corbett afterwards, to wit, on the day and year aforesaid, (the he said John Corbett, well knowing the aforesaid barrels to be so as aforesaid, filled with the said dirt, earth, stones and rubbish, mixed in with and concealed by the tar in the barrel) did knowingly, fraudulently and deceitfully sell and deliver unto Kader Biggs and William P. Gurley, the said barrel so as aforesaid, filled with said dirt, earth, stones and rubbish, mixed with the tar aforesaid, as and for a barrel of tar; whereas, the said barrel was then and there filled with dirt, earth and rubbish, mixed and concealed with tar therein, to wit, at the county aforesaid, on the day and year aforesaid, against the peace and dignity of the State.

*266The jury found a special verdict as follows: *“*That the defers dant was a farmer; that he occasionally made tar and sold it in barrels — that one month before the indictment was found, the defendant sent by an agent six barrels of tar to the town of Windsor, Bertie county, to be sold by the agent: that the tar was carried in carts and stopped near the landing at the river, at which landing it is usually discharged from carts which carijy tar to Windsor; that while the carts were left standing, the defendant’s agent went a quarter of a mile to the store of a merchant, where the latter offered him the usual price of good tar for those six barrels, which offer the defendant’s agent accepted: - — that the Clerk of the merchant, thereupon, by the direction of his principals, went to the river to receive the tar, and on getting there, the carts were, brought forward and the tar discharged: that the Clerk, as was his custom, inspected the tar, and found two barrels of it pure and merchantable : that two other barrels contained a portion of dirt, while the last two were nearly full of clods and dirt, which clods were not penetrated by the tar, and were of so large a size as they could only have got there by design, The jury found that the dirt and clods were put into the said barrel for the purpose of cheating: that the existence of the said 'dirt and clods were easily detected by the use of the inspecting rod; that upon ascertaining the extent of the dirt and clods, it was agreed between the clerk and the defendant’s-agent, that the four barrels, so containing dirt and clods, were equal to three, and should be settled for as such; that they were thus settled for. The jury found that the said dirt and clods were in the barrels before they were sent. Upon the foregoing facts, the jury say they are ignorant whether in law defendant is guilty or not guilty, and they refer the question to the Court, finding the defendant guilty, if in tile opinion of the Court he is guilty; and not guilty, if in the opinion of the Court he is not guilty.”

His Honor, being of opinion that the defendant was not guilty, gave judgment in his favor, and the Solicitor for the State appealed.

*267
      *Attorney Greneral fox*tbe State.

No counsel appeared for tbe defendant.

Pearson, J.

We will not decide whether tbe matter charged in tbe indictment constitutes an indictable offence, as tbe question is not presented by tbe facts stated in tbe special verdict; and a decision of that point is consequently not called for.

There is a fatal variance between tbe allegations of tbe indictment and tbe proof. An *executed*contract is alleged; whereas, tbe proof shows only an *executory*contract: And tbe fact is, that before tbe contract was executed, tbe fraudulent mixing in of dirt, &c., was discovered, which caused an abandonment of tbe original executory contract, and a new contract was then made and acted upon, in which there was no fraud; for tbe presence of dirt was then known and admitted, and an allowance was made to cover it.

Judgment affirmed.