State v. Collins

• Decision Date: 20 November 1894
• Citation: 20 S.E. 452,115 N.C. 716
• Court: North Carolina Supreme Court
• Parties: STATE. v. COLLINS.

20 S.E. 452

115 N.C. 716

STATE.

v.COLLINS.

Supreme Court of North Carolina.

Nov. 20, 1894.

Criminal Law—Mistrial— Forgert — Variance.

1. A mistrial in a case not capital is a matter of discretion.

2. The state can show that a witness whose name was W. W. Vass was commonly known as Major Vass.

3. Where the indictment charged that the name forged was Major Vass, evidence that the signature was Maj. Vase was no variance.

Appeal from superior court Wake county; Bynum, Judge.

Prank Collins was convicted of forgery, and appeals. Affirmed.

J. C. L. Harris, for appellant.

The Attorney General and W. J. Peele, for the State.

CLARK, J. A mistrial in a case not capital is a matter of discretion. State v. Johnson, 75 N. C. 123. The plea of former jeopardy was therefore properly overruled.

The second, third, and fourth exceptions are without merit The questions objected to were asked for identification. It was competent for the state to show that the witness whose name was W. W. Vass was commonly known as Major Vass. The charge in the bill was that the name forged In the order was Major Vass. The proof was that the signature was Maj. Vase. Thisis idem sonans, and no variance. State Lane, 80 N. C. 407. There the charge was that the forged order purported to be drawn by J. B. Runkins on Dulks & Helker. The proof was that the name of the party whose signature was forged was J. B. Rankin, and the name of the firm to whom it was presented was Helker & Duts. This was held in an opinion by Smith, C. J., no variance, because "the difference is slight, and creates no uncertainty as to who were meant." As to whether Maj. "Vase and Major Vass are idem sonans and immaterial variance we find numerous cases where a greater difference was held immaterial. In this state: Runkins for Rankin, and Dulks & Helker for Helker & Duts, ut supra; also Willis Fain for Willie Fanes (State v. Hare, 95 N. C. 6S2); Deadema for Diadema (State v. Patterson, 24 N. C. 340); Michaels for Michal (State v. Houser, 44 N. C. 410); Anny for Anne (State v. Upton, 12 N. C. 513); Hawood for Haywood (State v. Covington, 94 N. C. 913); Susan for Susannah (State v, Johnson, 67 N. C. 55). In other states, among many names held idem sonans, and not a variance, the following can be cited at random: Allesandro and Alexander (Alexander v. Com., 105 Pa. St. 1); Anthron and Antrum (State v. Scurry, 3 Rich. Law, 68); Bobb and Bubb (Myer v. Fegaly, 39 Pa. St. 429); Breaiiy and Brailey (People v. Gosch [Mich.] 46 N. W. 101); Bert Samrud and Bern't Sannerud (State v. Sannerud, 38 Minn. 229, 36 N. W. 447); Barnabas and Barney (McGregor v. Balch, 17 Vt. 562); Beckwith and Beckworth (Stewart v. State, 4 Blackf. 171); Burdet and Boudet (Aaron v. State, 37 Ala. 106); Cuffee and Cuff (State v. Farr, 12 Rich. Law, 24); Conn and Corn (Moore v. Anderson, 8 Ind. 18); Colburn and Coburn (Colburn v. Bancroft, 23 Pick. 57); Doerges and Dierkes (Gorman v. Dierkes, 37 Mo. 576); Dillahinty and Dillaunty (Dillahunty v. Davis [Tex. Sup.] 12 S. W. 55); Elliott and Ellett (Robertson v. Winchester, 85 Tenn. 171, 1 S. W. 781); Fauntleroy and Fontleroy (Wilks v. State, 27 Tex. App. 381, 11 S. W. 415); Tebruary and February (Wit-ten v. State, 4 Tex. App. 70); Fayelville and Fayetteville (U. S. v. Hinman, Baldw. 292, Fed. Cas. No. 15, 370); Foster and Faster, (Foster v. State, 1 Tex. App. 533); George Rooks and Geo. W. Rux (Rooks v. State, 85 Ala. 79, 3 South. 720); Giddings and Gidines (State v. Lincoln, 17 Wis. 597); Girous and Geroux (Girous v. State, 29 Ind. 93); Heremon and Harriman (State v. Bean, 19 Vt. 530); Haverly and Havely (State v. Havely, 21 Mo. 498); J. D. Hub-ba and Joel D. Hubbard (Gumm v. Hubbard, 97 Mo. 311, 11 S. W. 61); Isah and Isiah (Ellis' Adm'r v. Merriman, 5 B. Mon. 297); Jefferds and Jervais (Com. v. Brigham, 147 Mass. 414, 18 N. E. 167); Kay and Key (Dickinson v. Bowers, 16 East, 112); Kealiher and Keolhier and Kelhier (Millett v. Blake, 81 Me. 531, 18 Atl. 293); Kreily and Kreitz and Critz (Krertz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232); Lebering and Lebrum (Ketland v. Lebering, 2 Wash. C. C. 201, Fed. Cas. No. 7, 744); Lawson and Lossene (State v. Pullens, 81 Mo. 387); Leaphardt and Leap-hat (Leaphardt v. Sloan, 5 Blackf. 278); T. C. Lucky and C. C. Lucky (Brown v. State, 32 Tex. 124); Mary Etta and Marietta (Goode v. State, 2 Tex. App. 520); Minner and Miner (Jackson v. Boneham, 15 Johns. 226); McLaughlin and McGlof'lin (McLaughlin v. State, 52 Ind. 476); Marres and Mars (Com. v. Stone, 103 Mass. 421); Mousuer and Mosuser (Rud-dell v. Mozer, 1 Ark. 503); Nuton and Newton (Newton v. Newell, 26 Minn. 529, 6 N. W. 346); Pilip and Philip (Taylor v. Rogers, 1 Minor [Ala.] 197); Petterson and Patterson (Jackson v. Cody, 9 Cow. 140); Petrie and Petris, almost this very sound, "e" for "s" (Petrie v. Woodworth, 3 Caines, 219); Preyer and Prior (Page v. State, 61 Ala. 16); Rae and Wray (3 U. C. Law J. 69); Shafer and Shaffer, also similar to the sound here (Rowe v. Palmer, 29 Kan. 337); Shields and Sheals (3 Luz. Leg. Obs. 174); Stafford and Stratford (Wilson v. Stafford, 2 Chit. 355); Sunderland and Sandland (Sandland v. Adams, 2 How. Pr. 98); St. Clair and Sinclair (Rivard v. Gardner, 39 Ill. 129); Storrs and Stores (People v. Sutherland, 81 N. Y. 1); Sofira and Sofia (Owen v. State, 7 Tex. App. 329); Tin-marsh and Tidmarsh (Homan v. Tinmarsh, 11 Moore, 231); Usrey and Usury (Gresham v. Walker, 10 Ala. 370); Whyneard and Winyard (Rex v. Foster, Russ. & R. 412); Zemeriah and Zimri (Ames v. Snider, 55 111. 490). In Gooden v. State, 55 Ala. 178, the name attempted to be forged was Thweatt The forgery had it Threet. The conviction was sustained. This indictment being for forgery, it was not so necessary that...