18 Mo. 320 | Mo. | 1853
delivered the opinion of the court.
1. The defendant, Curran, was indicted for an assault upon Silas Melville, with intent to kill. Upon the trial, the party injured was examined as a witness, and testified that his name was “ Melvin” and not “ Melville.’.’ It was objected that this was a variance, there being no evidence that the person injured was known by the name of Melvin. The court refused to de~ .cide that there was a variance between the evidence and the indictment, but instructed the jury thus : “ As to whether there is a material variance in the sound of the name of the person alleged in the indictment to have been stabbed, and the name of the person proven to have stabbed, is a question of fact for the jury, but the jury ought not to acquit on the ground of difference in the sound of said names, unless they believe the difference .in the sound to be so great, that they cannot be .reasonably taken to designate the same individual.”
When a question arises in the progress of a criminal trial, in •relation to the name of the person upon whose property or person the offence has been committed, and the evidence varies from the averment in the indictment, as in this case, by proving that the individual was named Melvin, and not Melville, as alleged, it is the duty of the court to direct an acquittal, unless there is evidence in the case, showing that the person was
The judgment is reversed and the cause remanded for further proceedings. ■