Zellers v. State

7 Ind. 659

• Court: Indiana Supreme Court
• Decided: June 16, 1856
• Status: Published

Opinion

Gookins, J.

On an indictment for forgery, the appellant was tried, convicted and sentenced to confinement at hard labor in the state’s prison. His motions for a new trial, and in arrest of judgment, were overruled, and exceptions taken.

IL L. Livingston, for the appellant. J. W. Gordon, for the state.

The indictment alleged the passing to A. B. Robinson of a forged bank note purporting to be for 20 dollars, on the bank of Tennessee, knowing it to be counterfeit, with intent to defraud the said A. B. Robinson.

On the trial Robinson was introduced as a witness, and among other things testified that his name was Alexander B. Robinson, and that he was often called A. B. Robinson. Objection was taken by the prisoner for the variance, and we think well taken. Every person is presumed to have a Christian name. Gardner v. The State, 4 Ind. R. 632. The indictment should have set out the true name, or should have averred it to be unknown to the grand jury.

The instrument alleged to have been forged was set out in the indictment in hcec verba, and the name of the president of the bank was stated to be Sedbetter. The name appearing in the instrument offered in evidence was Led-better. The prisoner’s objection, on the ground of variance, was overruled. This was error. The variance was fatal.

The motion for a new trial should not have been sustained, however, on account of these errors, because the Court ought not to have ordered a new trial upon a defective indictment. But the motion in arrest of judgment should have been sustained. The statement in the indictment that the note was passed to A. B. Robinson, was not sufficient, at least without an averment that his Christian name was unknown. 1 Chitt. Cr. L. 215.

Per Curiam.—The

judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to sustain the motion in arrest of judgment, and to commit or hold the defendant to bail to answer a further indictment. 2 R. S. 380, s. 146.