State v. . Collins

20 S.E. 452, 115 N.C. 716

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

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.” This is idem sonans and no variance. State v. 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 Willis Fanes, 95 N. C., 682; Deademan for Diadenam, 24 N. C., 346; Michaels for Michal, 44 N. C., 410; Anny for Anne, 12 N. C., 513; Hawood for Haywood, 94 N. C., 613; Susan for Susannah, 67 N. C., 55. In other States, among many names held idem sonans, and not at variance, the following may be cited at random: Allesandro and Alexander, 105 Pa. St, 1; Anthrom and Antrum, 3 Rich, S. C., 68; Bobb and Bubb, 39 Pa. St., 429; Brearley and Brail ey, 46 N. W. Rep., 101; Bert Samund and Bernt Sannerud, 38 Minn., 229; Barnabus and Barney, 17 Vt., 562; Beckwith and Beckworth, 4 Black, Ind., 171; Burdet and Boudet, 17 Ala., 106; Cuffee and Cuff, 12 Rich, S. C., 24; Conn and Coen, 8 Ind., 18 ; Colburn and Coburn, 23 Pick, 57; Doerges and Dierkes, 37 Mo., 576; Dillahanty and Dillaunty, 12 S. W. Rep., 55; Elliott and Ellett, 85 Tenn., 171; Fauntleroy and Fontleroy, 27 Tex. Appl., 381; Fabruary and February, 4 Tex. Appeals, 70: Fayelville and Fayetteville, U. S. v. Hinman, ] Bald., 292; Foster and Faster, 1 Tex. Appeal, 533; George Rooks and Geo. W. Rux, 83 Ala., 79; Giddings and Gidinas, 17 Wis., 597; Girous and Geroux, 29 Ind., 93; Her-emon and Hariman, 19 Vt., 530; Haverly and Havely, 21 Mo., 480; J. D. Hubba and Joel D. Hubbard, 97 Mo., 311; Isah and Isaiah, 5 B. Mon., Ey., 297; Jefferds and Jervais, 147 Mass., 414 ; Kay and Key, 16 East, 112; Kealiher and Keolhier and Kelhier, 81 Me., 531; Kreily and Kreitz for Crits, 125 Ill., 141; Leberung and Lebrum, 2 Wash. U. S, 201; Lawson and Lossene, 81 Mo., 387 ; Leaphardt and Leaphat, 5 Black, Ind., 278; T. O. Lucky and C. C. Lucky. Brown v. State, 32 Texas, 124; Mary Etta and Marietta; 2 Texas Appl, 520; Minner and Miner, 15. Johns., N. Y., 226; McLaughlin and McGlofflin, 52 Ind., 476; Marres and Mars, 103 Mass., 421 ; Moser and Mousener, 1 Ark., 503; Nuton and Newton, 26 Minn., 529; Pilip and Philip, 1 Ala., 197; Petterson and Patterson, 9 Cow., N. Y., 140; Petrie and Petris (almost this very sound, e for s), 3 Cal., 219; Preyer and Prior, 61 Ala., 16; Rae and Wray, 3 Upp. L. J., 69; Shafer and Shaffer (also similar to the sound here), 29 Kan., 337; Shields and Sheals, 3 Luz. Leg. Obs. (Pa.), 174; Stafford and Stratford,.Chitty, 355; Sunderland and Sandland, 2 How. Pr. Rep., 31; St. Clair and Sinclair, 39 Ill., 129; Storrs and Stores, 81 N. Y., 1; Sofira and Sofia, 7 Tex. Appl., 329; Tinmarsh and Tidmarsh, 11 Moore, 231; Userrey and Usery, 10 Ala., 370; Whyneard and Winyard, R. and R., 412; Zemeriah and Zimri, 55 Ill., 490. In Gooden v. State, 65 Ala., 178, ther name attempted to be forged was Thweatt. The forgery had it Threet. The conviction was sustained. This indictment being for forgery, it was not necessary that the forgery should have been “ calculated to deceive, and did deceive.” That applies only to obtaining goods under false pretence. The forgery may be awkward or clumsy. The party is guilty if there is the fraudulent intent to deceive by a forged paper, though the forgery is detected. 8 Am. and Eng. Enc., 462. It is not essential that anyone should be actually defrauded. In the present case his Honor properly charged the jury that “ If they believe that the person referred to in the bill as ‘Major Vass’ was W. W. Vass, and that the order written ‘ Maj. Vase,’ was presented by the defendant for the purpose of procuring the ham, and that he. was attempting to induce the belief that W. W. Vass was the one who signed the order, the spelling ‘ Maj. Vase’would not be a fatal variance.” ■ No Error.