Mass. Gen. Laws ch. 277, § 35

Variance; prejudice

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Section 35. A defendant shall not be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence. He shall not be acquitted by reason of an immaterial misnomer of a third party, an immaterial mistake in the description of property or the ownership thereof, failure to prove unnecessary allegations in the description of the crime or any other immaterial mistake in the indictment.

Notes of Decisions

Cited in 58 cases (6 in the last 5 years), 1922–2026 · leading case: Commonwealth v. Edelin

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Commonwealth v. Edelin (1976) mass · cites it 8× “It says that a defendant "shall not be acquitted on the ground of variance between the allegations and the proof," but this is conditioned on the "essential elements of the *522 crime" being "correctly stated." That was not the case here.”

Commonwealth v. Lopes (2009) mass “” See also G. L. c. 277, § 35 (“A defendant shall not be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence”).”

Commonwealth v. a Juvenile (1974) mass · cites it 2× “G.L.c. 277, § 35. In any event, we find no prejudice.”

Commonwealth v. Semedo (2010) mass “See G. L. c. 277, § 35, which provides that a variance shall not require acquittal if the essential elements of the crime have been correctly stated in the charge and the defendant has not been prejudiced.”

Commonwealth v. Whitehead (1980) mass “The defendants now reassert their contention and say that to allow conviction on the second alternative comprehends a variance prohibited under G. L. c. 277, § 35, 3 or is otherwise illegal.”

Commonwealth v. Mandile (1988) mass “See G. L. c. 277, § 35 (1986 ed.). Contrast Commonwealth v.”

Commonwealth v. Barbosa (1995) mass “G. L. c. 277, § 35. Where there is a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury, we cannot apply a harmless error standard.”

Commonwealth v. Roby (2012) mass “Megna, supra at 515 , quoting G. L. c. 277, § 35 (“A defendant shall not be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence”).”

Commonwealth v. Costello (1984) mass “G. L. c. 277, § 35. Thus, “[t]he same principle applies on review of a conviction, when the defendant claims that the judge’s instructions created a variance between the indictment and the proof to be considered.”

Commonwealth v. Beneficial Finance Company (1971) mass “(See: G. L. c. 277, § 35).” 14. Household argues that “the trial court erred in failing to recognize that the evidence [in the second trial]] reflected two separate conspiracies, rather than the one charged in the indictment; and further erred in the instructions by which the…”

Commonwealth v. Lawton (2012) massappct “" G. L. c. 277, § 35. Time is not an essential element of rape of a child, and it need not be precisely alleged.”

Commonwealth v. Garcia (2019) massappct “13 Moreover, the defendant cannot show the prejudice required by G. L. c. 277, § 35. The defendant clearly had notice of the crime with which he was being charged.”

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