State v. Hare
| Decision Date | 31 October 1886 |
| Citation | 95 N.C. 682 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. DAVID HARE. |
CRIMINAL ACTION, tried before Connor, Judge, at February Criminal Term, 1886, of WAKE Superior court.
The defendant was convicted, and from the judgment thereon pronounced against him, appealed.
The facts necessary to an understanding of the questions raised upon the appeal, are stated in the opinion.
The Court, declining to give the special instructions which are set out in the opinion, among other things, charged the jury that “if the defendant swore that the money taken from Fain's trunk was marked, and that by such marks he could identify it as his, such testimony was material to the issue.”
Attorney-General, for the State .
Mr. J. H. Fleming, for the defendant .
The defendant was charged with perjury, alleged to have been committed when examined as a witness for the State on the trial of an indictment against one Willis Fain for the larceny of certain money of the defendant. The false oath consisted in his testifying that one C. H. Pleasants, while engaged as an officer in making search, took from the trunk of the person accused of the larceny, certain marked silver coins, thus identified, as his own property, and delivered the same to him, the witness; whereas, no such marked coin was taken from the trunk and handed to him.
The Solicitor, in support of the charge, exhibited in evidence the record of proceedings in which the false oath is alleged to have been taken, and in which the person accused of the theft was designated by the name of Willie Fanes.
To the introduction of this evidence, upon the ground of a variance, in the name as given in the present indictment and as found in the record produced, the defendant excepted. The Court, on inspection, overruled the objection, and permitted the evidence to be read to the jury. To this ruling the defendant's first exception is taken.
The slight difference in the spelling and in the sound of the name, as found in the indictment and the record produced to support it, may fairly come under the rule idem sonans. Thus “Deadena” and “Diddena,” State v. Patterson, 2 Ired., 346; “Susan” and “Susana,” State v. Johnson, 67 N. C., 55; are held not to be variant names. So, in an indictment for selling liquor to a slave, the property of William Michaels, is sustained by proof that the owner's true name is William Michal. State v. Haun, Bus. 410.
Numerous cases on the subject are referred to in 1 Whar. Crim. Law, §597, but those of this Court are sufficient to sustain the ruling of the Court below. There is no suggestion to the contrary, and the identity of the...
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