State v. McCormick

• Decision Date: 14 June 1895
• Docket Number: 17,552
• Citation: 40 N.E. 1089,141 Ind. 685
• Parties: The State v. McCormick
• Court: Indiana Supreme Court

40 N.E. 1089

141 Ind. 685

The State v. McCormick

No. 17,552

Supreme Court of Indiana

June 14, 1895

From the Boone Circuit Court.

The judgment is affirmed.

N Laughrun, Prosecuting Attorney, and C. N. Beamer, for State.

Artman & Lewis, for appellee.

OPINION

Hackney, J.

The lower court sustained the appellee's motion to quash the indictment in this case, the substance of which indictment is as follows: "That William L. McCormick, on the 10th day of December, 1894, at, etc., did unlawfully, etc., publish and place of record in the office of the county recorder of said county as true and genuine, a certain false, forged and counterfeit deed, purporting to have been made and executed by one Hannah McCormick for the conveyance, and conveying the inchoate interest of said Hannah McCormick in and to certain lands to the said William L. McCormick, which said false, forged and counterfeit deed is of the tenor following." Then follows a copy of a warranty deed, in the usual form, and the copies of the signatures thereto are "Zelus McGormick" and "Hannah McGormick." It charged that said deed was so published with intent to defraud one Charles McCormick, to whom a previous deed for the same land had been executed by Hannah McCormick, and which deed had been withheld from record by the defendant.

There are no allegations that the forged signature of "Hannah McGormick" was intended for that of "Hannah McCormick" nor that in writing the signature there was any error. Indeed, it can only be known from a possible inference arising, not from a direct allegation, but from the recitals in the deed and its acknowledgment, that the person whose signature was forged was "Hannah McCormick," and not "Hannah McGormick." It is manifest, in the absence of some such showing, that a deed signed by Hannah McGormick would not convey an interest in the lands of Hannah McCormick. The two names are not idem sonans. In Zellers v. State, 7 Ind. 659, it was held that Sedbetter and Ledbetter were not the same.

In Porter v. State, 15 Ind. 433, the variance between "E. Lymour" and "E. Seymour" was held to be fatal.

In Black v. State, 57 Ind. 109 "McKaskey" and "McKloskey" were held to be at variance. It was there stated that the "true rule on this subject was said to be 'that if the names may be sounded alike, without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial.'"

In Mitchell v. State, 63 Ind. 276, "Hairholts" and "Hairholser" were not the same. See, also, Abbott v. State, 59 Ind. 70; State v. Pease, 74 Ind. 263; Thomas v. State, 103 Ind. 419, 2 N.E. 808.

There is some conflict in the decisions in this State as to what variation in names will be regarded as fatal, but in forgery the rule of pleading has been regarded with more strictness than in charging some other offenses and in civil proceedings. If the...