15 Ind. 433 | Ind. | 1860
The appellant was indicted in the Court below for forgery, in uttering and putting away certain counterfeit bank notes, purporting to be the notes of the Winsted Bank, of the State of Connecticut, with intent to have the same put in circulation. Trial, conviction, and judgment; a new trial being denied.
Before entering upon the trial, the defendant, on affidavit filed, moved for a continuance; but his motion was overruled.
The affidavit is unusually long, and we deem it unnecessary to set it out, or discuss it at length. An opinion as to its sufficiency would be of no practical use as a precedent; hence, as there is another point in the case that is fatal to the judgment, we proceed at once to it.
The notes, as set out in the indictment, were payable to “A. lymour, or bearer.” Those offered in evidence, were payable to “A”. Seymour, or bearer.” The defendant objected to the introduction of the notes thus offered in evidence, because of the variance; but the objection was overruled, and he excepted. This was one of the grounds of the motion \ for a new trial. The variance between the name of E. lymour, and that of E. Seymour, we think, was fatal. Zellers v. The State, 7 Ind. 659; vide, also, on this point, Commonwealth v. Stevens, 1 Mass. 203; Commonwealth v. Wilson, 2 Gray, 70.
The judgment is reversed, and the cause remanded. The clerk is ordered to certify directions to the superintendent of the State prison to return the appellant, William Porter, to the jailor of Warren county, to abide the order of the Court below.