State v. Wammack, 70 Mo. 410

Sherwood, C. J. —

1. criminal law: variance evidence : practice. Our statute expressly commands that, “ Whenever, on the trial of any indictment for a felony there shall appear to he any variance between the statement in such indictment, and the evidence offered ‍​‌‌​​‌​​‌​‌‌​‌​‌‌‌​​‌‌​​‌​​‌‌​​​​​‌‌​​​​​‌‌‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌‌‌​‌​​‌‍in proof thereof in the Christian name * * of any person whomsoever therein named, * * such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the ease and prejudicial to the defense of the defendant.” Wag. Stat., § 22, p. 1089. So that the objection to the evidence that it showed an assault on one Eyre Pile, and not ‍​‌‌​​‌​​‌​‌‌​‌​‌‌‌​​‌‌​​‌​​‌‌​​​​​‌‌​​​​​‌‌‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌‌‌​‌​​‌‍on M. E. Pile, as charged in the indictment, was not well taken, since the trial court has not found that the “ variance is material to the merits of the case and prejudicial to the defense of the defendant.” It is obvious that the statute constitutes the trial court the judge of the materiality of any discrepancies between the charge in the indictment and the evidence offered in its support, and that, under the statute, the defendant will not be entitled to an acquittal, ‍​‌‌​​‌​​‌​‌‌​‌​‌‌‌​​‌‌​​‌​​‌‌​​​​​‌‌​​​​​‌‌‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌‌‌​‌​​‌‍unless *412the court finds the variance between accusation and proof so great as to call for judicial interposition. State v. Barker, 64 Mo. 282. In the present instance the court has not only failed to make a finding of the character indicated, but, on the contrary, the second instruction, on behalf of the State, in these words : 2. “ In arriving at your verdict, you will disregard the difference between the name of Eyre Pile who has testified in this ease relative to the ‍​‌‌​​‌​​‌​‌‌​‌​‌‌‌​​‌‌​​‌​​‌‌​​​​​‌‌​​​​​‌‌‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌‌‌​‌​​‌‍defendant’s assaulting him, and the name of M. E. Pile set forth in the indictment as that of the party assaulted, such difference of names not being material to the merits of this case, and not prejudicial, to the defense of the defendant,” shows clearly that the trial court did not regard the defendant prejudiced by the variance.

2. _. grand jury: evidence. We do not think that the testimony of Copening, the foreman of the grand jury, was competent in order to show ‍​‌‌​​‌​​‌​‌‌​‌​‌‌‌​​‌‌​​‌​​‌‌​​​​​‌‌​​​​​‌‌‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌‌‌​‌​​‌‍whom that body meant by “ M. E. Pile;” but under the view already taken, the error was immaterial and no ground for a reversal.

The statement made by counsel that no name was proved, is flatly contradicted by the record.

All concur.

Judgment affirmed.

Case Details

Case Name: State v. Wammack

Court Name: Supreme Court of Missouri

Date Published: Oct 15, 1879

Citation: 70 Mo. 410

Court Abbreviation: Mo.