29 S.E. 380 | N.C. | 1898
The defendant was convicted and sentenced for three years to hard labor on the public roads of Wake County, and appealed from the refusal of a motion for a new trial, assigning as error the refusal of a prayer for instruction to the jury that there was a fatal variance between the allegation and proof. The defendant was indicted for perjury committed in an action wherein one "Abram Hester was plaintiff and Thos. R. Robertson was defendant," and the record offered in evidence showed that "Abram Hester was plaintiff and Thomas Robertson was defendant." The defendant prayed the court to charge that this was a fatal variance between allegation and proof, and that the jury must find the defendant not guilty. There was evidence of the identity of Thomas Robertson and Thos. R. Robertson, which indeed was not denied, nor (1048) indeed questioned in any other way than by the prayer for instruction. His Honor declined to give the prayer for instructions, but told the jury that it was their duty to determine the identity of the persons named, and if they entertained a reasonable doubt concerning the same, they should acquit.
The defendant has no ground of complaint. It does not appear that he was in any wise prejudiced, and his exception is one of the "refinements" which the act of 1811, now The Code, sec. 1183, was enacted to root out of the law. In S. v. Brown,
On a trial for larceny where ownership was laid in "Elizabeth Williams" and the proof was that "Betsy Williams" was the owner, the identity of these parties was properly left to the jury. S. v. Godet,
The practical sense of the age demands that guilt or innocence shall be determined upon proof, and that immaterial variances and refinements and technicalities shall not avail defendants when they are not in truth prejudiced thereby. The legislative department has made this very plain in numerous enactments, notably in The Code, secs. 1183, 1189, 908, and in many other sections, and in the comparatively recent statutes providing short forms of indictment for murder (Laws 1887, ch. 58; S. v. Arnold,
"Ever since 1811 it has been the evident tendency," says Ashe, J., inS. v. Parker,
No error.
Cited: S. v. Barnes, ante, 1036; S. v. Harris,