State v. Hester

Citation29 S.E. 380,122 N.C. 1047
CourtUnited States State Supreme Court of North Carolina
Decision Date15 March 1898
PartiesSTATE . v. HESTER.

Perjury—Pleading and Proof—Variance.

An indictment charged perjury in an action wherein one "H. was plaintiff and Thos. R. Robertson was defendant." The proof showed that "Thomas Robertson" was defendant in said case. Held not a fatal variance, and, where there was evidence of the identity of Thomas Robertson and Thomas R. Robertson, it was for the jury to determine the identity of the persons named, under Code, § 1183, providing that no judgment shall be arrested by reason of any informality or "refinement."

Appeal from superior court, Wake county; Robinson, Judge.

Thomas Hester was convicted of perjury, and appeals. Affirmed.

Argo & Snow and Battle & Mordeeai, for appellant.

The Attorney General, for the State.

CLARK, J. The defendant was indicted for perjury committed in an action wherein one "Abram Hester was plaintiff and Thos. R. Robertson was defendant, " and the record offered in evidence showed that "Abram Hester was plaintiff and Thomas Robertson was defendant." The defendant prayed the court to charge that this was a fatal variance between allegation and proof, and that the jury must find the defendant not guilty. There was evidence of the identity of "Thomas Robertson" and "Thos. R. Robertson, " which, indeed, was not denied, nor, indeed, questioned, in any other way than by the prayer for instructions. His honor declined to give the prayer for instructions, but told the jury that it was their duty to determine the identity of the persons named, and, if they entertained a reasonable doubt concerning the same, they should acquit. The defendant has no ground of complaint. It does not appear that he was in any wise prejudiced, and his exception is one of the "refinements" which the act of 1811 (now Code, % 1183) was enacted to root out of the law. In State v. Brown, 79 N. C. 642, the Indictment charged that the perjury had been committed in a case "between the state and the said Benjamin Brown, " while the proper title of the cause was "The State, upon the relation of Maria Williams, against Benjamin Brown." This was held no material variance. In State v. Collins, 85 N. C. 511, the perjury was alleged to have been committed in an action between "the state as plaintiff and the said James N. Collins as defendant." The record introduced showed that the action was entitled "The State and Cornelia Burnett against James N. Collins." The court held "the discrepancy immaterial and the exception untenable." To the same effect is State v. Peters, 107 N. C. 876, 12 S. E. 74. In State v. Hare, 95 N. C. 682, it was held an immaterial variance that the perjury was charged to have been committed on the trial of "Willis Fain, " while the record was that it was on the trial of Willie Fanes. In State v. Davis, 69 N. C. 495, the false oath -was alleged to have been made in an action "before Joseph Q. Pratt, a justice of the peace in and for said county, " instead of a "court of the justice of the peace for township A of Chowan Co., " as should have been done. This was held a mere "refinement, " and cured by the act of 1811 (now Code, § 1183). In State v. Lane, 80 N. C. 407, the defendant was charged with forging an order addressed to "Dulks & Helker, " and signed "J. B. Runkins." The proof was that the name of the drawee firm was "Helker & Duts, " and the name of the party forged was "J. B. Rankin." The court held that, there being "no uncertainty as to who were meant, this was not a substantial and fatal variance." In State v. Collins, 115 N. C. 716, 20 S. E. 452, the defendant was charged with forging the signature of "Major Vass." The proof was that the order was signed "mage Vase." This court approved an instruction to the jury that, if they found that the defendant was attempting to induce the belief that W. W. Vass had signed the order, and that he was commonly known as "Major Vass, " as charged in the bill, the spelling "mage Vase" was not a fatal variance; and many similar cases are cited in that opinion, among others, State v. Houser, 44 N. C. 410, in which the property was laid in "William Michaels, " and the proof was that the true name was "William H. Michael, " and it was held not a material variance—a case closely resembling this. Also Rooks v. State, 83 Ala. 79, 3 South. 720, where the name laid in an indictment was "George Rooks, " and the proof was of "Geo. W. Rux"; and Gumm v. Hubbard, 97 Mo. 311, 11 S. W. 61, where the name in the indictment was "J. D. Hubba, " and the proof was "Joel D. Hubbard." On a trial for larceny, where ownership was laid in "Elizabeth Williams, " and proof was that "Betsy Williams" was the owner, the identity of these parties was properly left to the jury (State v. Godet, 29 N. C. 210); as likewise the identity of "S. L. Williams" and "Samuel L. Williams, " when one was named in the indictment and the other in the proof (State v. McMillan, 68 N. C. 440). To like purport as to name of deceased, in a trial for murder, see State v. Henderson, Id. 348. Besides, middle names and middle initials are immaterial, and variances in that respect will not be considered, for the common law recognizes only one Christian name (16 Am. & Eng. Enc. Law, 114); and judicial notice will be taken of the ordinary abbreviations of Christian names (Id. 115). "Th." was held equivalent to "Thomas" in Ogden v. Gibbons, 5 N. J. Law, 518, 531.

The practical sense of the age demands that guilt or innocence shall be determined upon proof, and that immaterial variances and refinements and technicalities shall not avail defendants when they are not in truth prejudiced thereby. The legislative department has made this very plain in numerous enactments, notably in Code, §§ 908, 1183, 1189, and in many other sections; and in...

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17 cases
  • State v. Hammonds
    • United States
    • North Carolina Supreme Court
    • 15 Diciembre 1954
    ... ... State v. Moses, 13 N.C. 452; State v. Barnes, 122 N.C. 1031, 29 S.E. 381; State v. Hester, ... 122 N.C. 1047, 29 S.E. 380; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Ratliff, 170 N.C. 707, 86 S.E. 997; State v. Carpenter, 173 N.C. 767, 92 S.E. 373; State v. Poythress, 174 N.C. 809, 93 S.E. 919; State v. Hedgecock, 185 N.C. 714, 117 S.E. 47; State v. Whitley, 208 N.C. 661, ... ...
  • State v. Utley, 361.
    • United States
    • North Carolina Supreme Court
    • 14 Abril 1943
  • State v. Utley
    • United States
    • North Carolina Supreme Court
    • 14 Abril 1943
    ... ... and "Helker & Duts;" State v. Covington, 94 ... N.C. 913, 55 Am.Rep. 650, "Hawood" and ... "Haywood"; State v. Hare, 95 N.C. 682, ... "Willis Fain" and "Willie Fanes"; ... State v. Collins, 115 N.C. 716, 20 S.E. 452, ... "Major Vass" and "Major Vase"; State ... v. Hester, 122 N.C. 1047, 29 S.E. 380, "Thomas R ... Robertson" and "Thomas Robertson"; State ... v. Drakeford, 162 N.C. 667, 78 S.E. 308, "Lila ... Hatcher" and "Liza Hatcher"; State v ... Chambers, 180 N.C. 705, 104 S.E. 670, misspelling of ... Tolbert; State v. Donnell, 202 N.C. 782; 164 S.E. 352, ... ...
  • State v. Whitley
    • United States
    • North Carolina Supreme Court
    • 1 Noviembre 1935
    ... ... "Cannon Mills Company" when the abbreviated ... expression "Cannon Mills" was employed. The ... difference was not mooted on trial. It seems a clear case of ... idem sonans. State v. Drakeford, 162 N.C. 667, 78 ... S.E. 308; State v. Hester, 122 N.C. 1047, 29 S.E ...          The ... next position taken by the defendants is that the second ... count in the bill of indictment is fatally defective, in that ... the names of the defendants are not repeated in charging the ... scienter. State v. McCollum, 181 N.C. 584, 107 ... ...
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