State v. Verden

24 Iowa 126

Opinion

Dillon, Ch. J.

The only question made on this appeal is, whether the variance between the names of Chambers and Chamberlain is such as, under our statute, to require a reversal of the judgment. Defendant’s counsel contend “ that the description in the indictment, of the location of the building alleged to be a nuisance, is matter of local description, hence must be proved as laid — the variance being of necessity fatal.” Mr. Justice Cole, and the writer, are of opinion, if the above rule applies to this case, that, under existing statutes, this- variance is no longer of such a nature as to require or justify a reversal of the judgment, it not affecting “ the substantial rights of the defendant upon the merits ” (Rev. §§ 4660, sub-div. 4, 5; §§ 4925, 4650, 4659, cl. 5).

Justices Weight and Beck are of a contrary opinion, and regard the case of The State v. Crogan (8 Iowa, 523), decided in 1859, as applicable to the present case, and the rule therein recognized as not having been abrogated or relaxed by the present statutes regulating criminal procedure. In their opinion, the court erred in its instructions to the jury, and the judgment should be reversed. In consequence of this equal division in' opinion, the judgment of the court below stands, by operation of law,

Affirmed.