¶1The opinion of the court was delivered by
¶2The .plaintiff, in .error, Sharp, was convicted in the Gloucester Sessions upon an indictment charging him-with having procured the endorsement of one Cunard upon his promissory note by false pretences and with intent to defraud.
¶3Sharp, by this writ of error, seeks a reversal of th.e conviction, and has assigned numerous errors upon the-record and proceedings.
¶4Two of the assignments, present such unmistakable error that it is plain that the judgment cannot stand.
¶5In the first place, the false pretences charged in.the indictment were not proved, and the court below, upon -Sharp’s-request at the close of the case, ought to have directed an acquittal.
¶6The indictment was drawn-upon section 172 of the Crimes act. Rev., p. 257. It charged that Sharp, intending to cheat and defraud Cunard of his money, &c., by certain false pretences made to Cunard, procured him to endorse-Sharp’s note in order that it might be used as valuable security. The-false pretence was charged to be false statements that Sharp-was the owner of property of large value, and that such property was not encumbered by any lien.
¶7The only statements proved in support of these allegations-of the- indictmeri.t were made-in a conversation between Cunard and Sharp, to which they alone testified. Their testimony was-contradictory. Assuming Cuhard’s testimony to be true, what. *513occurred was this: Cunard asked Sharp whether he owned his personal property, and • Sharp -replied, •“ I- do. not owe a dollar to any man.”' 'Cunard then asked Sharp what kind of a season he had had, and Sharp answered that he had made a “middling fair” season. Cunard declared that these representations induced him to endorse the note in question.
¶8There was no proof of the charge that Sharp had stated that he was the owner of property of large value.
¶9Nor did the conversation, as detailed by Cunard, suffice to prove the other charge, that Sharp stated that his property was not encumbered by any lien. The indictment charged a particular false pretence; it will not be supported by proof of a general statement, though the latter be false. There was, therefore, a substantial variance between the allegations and the proof.
¶10There was no effort made to amend the indictment to conform to the proof. Assuming there wás power to amend, it is clear that no amendment should have been made; for the facts shown leave no room for doubt that, if Sharp did represent that he was not indebted, Cunard knew the contrary to be true and could not have been influenced by the statement.
¶11In the next place, the charge to the jury was fatally defective. By it the jury were instructed that if they believed that Sharp obtained Cunard’s signature to .the nóte by false representations, knowing that he could not fulfill the promise, they should convict.
¶12This instruction left out of view two essential ingredients of the crime charged, viz., the intent to defraud and knowledge of the falsity of the pretence charged. State v. Blauvelt, 9 Vroom 306. Moreover, it permitted the jury to convict upon any false representation proved to have been made, although that alleged in the indictment was not proved.
¶13There are several other assignments which seem to point out fatal errors, but it is not deemed necessary to discuss them.
¶14The judgment must be reversed.