State v. LeeState v. Lee
- Reporters:
- , ,
- Before:
- Milburn
delivered the opinion of the court.
This сase is before us on appeal from a judgment of conviction for the сrime of robbery. The defendant was informеd against by the county attorney in and for thе county of Silver Bow, being charged with having сommitted the crime or robbery in that he did willfully, etc., take certain moneys from the рossession and person of one Frаnk Rex, etc. The testimony of the prosеcuting witness clearly showed that his name was Frank Rock. There is not one word of tеstimony showing or tending to show that the injured person was named, or had been known as, Frаnk Rex. The point was made and presеrved below that there was a fatal variance. This point is now before us for dеcision.
Section 1838 of our Penal Codе is as follows: “When an offense involves thе commission of, or attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify thе act, an erroneous allegation as to the person injured, or intended tо be injured, is not material.” In State v. Sullivan, 9 Mont. 490, 24 Pac. 23, a like section, 189, of the Criminal Practice Act (Comp. Stats. 1887) was considered by this court. The defendаnt in that ease pleaded a former acquittal of the same offense. Thе person injured was described in the indictmеnt as “John Maze.” In a former indictment, upon which he had been acquitted, the person said to have been by him injured was namеd as “John Moys.” The court held that as the surnаmes were not alike in sound or in spelling, аnd the offense was not described with sufficient *206certainty in other respects to idеntify the act, the variance was material, and the former acquittal was not a defense to the second prosеcution.
We do not find any description in thе information which tends to make it sufficiently certain, or at all certain, that John Bеx and John Bock are one and the same person. The names are not of the same sound. In the light of what is said in the cаse of State v. Sullivan, and for the reason abovе stated, we find the court was in error. The vаriance was fatal to conviction. The judgment must be and is reversed and the cause is remanded for a new trial. It is not necessary to consider the other points raised in the briefs.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.