Rogers v. State

• Decision Date: 08 October 1892
• Parties: ROGERS v. STATE.
• Court: Georgia Supreme Court

16 S.E. 205

90 Ga. 463

ROGERS v. STATE.

Supreme Court of Georgia

October 8, 1892

Syllabus by the Court.

1. The indictment charging the larceny of a bale of cotton from a railroad car, "in the possession and control of the Central R. R. & Banking Co., a corporation duly chartered under the laws of Georgia, and doing business under said corporate name," and the proof showing that the cotton was stolen from the car in question, that it was in the possession of "the Central R. R. & Banking Co. of Georgia," and that this corporation was generally as well known by one name as the other, there was no substantial variance between the allegation and the proof as to the custody of the car.

2. The verdict was supported by the evidence. There was no error in the various rulings of the court complained of, and a new trial was rightly denied.

Error from superior court, Muscogee county; J. H. MARTIN, Judge.

Mose Rogers was convicted of larceny. A motion for new trial was overruled, and he brings error. Affirmed.

Wheeler Williams, for plaintiff in error.

A. A Carson, Sol. Gen., for the State.

LUMPKIN J.

The motion for a new trial assigns error upon various rulings of the court made during the trial, but they all turn upon the question indicated in the headnote. According to the evidence, the correct name of the corporation having the custody of the car from which the larceny was committed was "the Central Railroad & Banking Company of Georgia," While the description of it in the indictment omits the words "of Georgia." It also appears from the evidence that this corporation is generally as well known by one name as by the other. The question is, was the variance between the charge and the proofatal? In our opinion, it was not. In point of fact there can scarcely be a doubt that the accused, his counsel, the court, jury, and all others concerned, knew perfectly well that the corporation to which the proof related was that to which the indictment referred, especially when it is shown that, in speaking of it colloquially, one name is used as often as the other, the potent words "of Georgia" being frequently left off. The indictment does inform us it is a Georgia corporation, and the proof makes it a corporation "of Georgia." This would not dispense with the legal degree of accuracy requisite in setting forth the corporate name in the pleading, nor with the necessity of having the evidence to conform thereto, but it does afford some aid in establishing the identity of the corporation in question. Tested by the evidence, the name in the indictment is correct as far as it goes, and only lacks two words of being exactly correct. The result of their omission is simply, we think, a slight misnomer. Railroad Co. v. Sullivan, 14 Ga 277; Johnson v. Railroad Co., 74 Ga. 397. It cannot be more serious than a like misnomer in the name of an individual. In 1 Mor. Priv. Corp. § 354, we find the following: "The identity of a corporation is no more affected by a change of name than the identity of an individual. The agents of a corporation have no implied authority to use any name except that indicated by the company's charter, in contracting on the company's behalf; but the use of a wrong name is ordinarily not material if the corporation is really intended by the parties. A misnomer of a corporation has the same legal effect as a misnomer of an individual. *** So a statute or legal proceeding relating to a corporation is not inoperative by reason of a slight variation in the company's name, if the identity of the corporation is clearly indicated." See, also, Ang. & A. Corp. (11th Ed.) § 645 et seq.; Bank v. Lee, 112 Mass. 521. In Jackson v. State, 76 Ga. 551, this court ruled, in effect, that the name of a corporation as laid in an indictment need not be proved verbatim et literatim, and that a slight variance was immaterial. On page 568, Justice HALL says: "The question is one of the identity of the...