33 Mont. 203 | Mont. | 1905
delivered the opinion of the court.
This case is before us on appeal from a judgment of conviction for the crime of robbery. The defendant was informed against by the county attorney in and for the county of Silver Bow, being charged with having committed the crime or robbery in that he did willfully, etc., take certain moneys from the possession and person of one Frank Rex, etc. The testimony of the prosecuting witness clearly showed that his name was Frank Rock. There is not one word of testimony showing or tending to show that the injured person was named, or had been known as, Frank Rex. The point was made and preserved below that there was a fatal variance. This point is now before us for decision.
Section 1838 of our Penal Code is as follows: “When an offense involves the commission of, or attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to 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 defendant in that ease pleaded a former acquittal of the same offense. The person injured was described in the indictment as “John Maze.” In a former indictment, upon which he had been acquitted, the person said to have been by him injured was named as “John Moys.” The court held that as the surnames were not alike in sound or in spelling, and the offense was not described with sufficient
We do not find any description in the information which tends to make it sufficiently certain, or at all certain, that John Bex 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 case of State v. Sullivan, and for the reason above stated, we find the court was in error. The variance 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.