35 Vt. 261 | Vt. | 1862
The indictment in this case is for passing, and having in possession, with intent to pass, certain counterfeit bank billá. The second and third counts, as appears by the exceptions, are for one and the same offence; the only difference between the two counts being, that in the second count the bill is described as No. 4887, and in the third count as No. 4587. The bill produced on trial was numbered 4587[as described in that respect in the third count. The bill described in the fourth count appeared by the proof to be a genuine bill upon a broken bank, and therefore worthless. The court charged the jury that the evidence did not support either the second or fourth count, and directed them to acquit the respondent on 'those two. counts. The questions reserved arise under the first and third counts.
The first count charges the respondent with passing and giving in payment a counterfeit bank bill of the denomination of five dollars, purporting to have been issued by the president, directors, and company of the John Hancock Bank, under the authority of the legislature of the state of Massachusetts, with the name of J. M. 'Thompson subscribed thereto as president, &c. The count then proceeds to'set out the tenor of the bill in words and figures, in the usual form. In the allegation of the purport of the bill the name of J. M. Thompson is correctly stated, but in setting out the tenor of the bill the exceptions show that the respondent’s counsel claimed at the trial that in the-indictment the word “ Thompson ” was written by inserting therein the letter “ n ” or the letter “instead of the letter “ mí,” This, the respondent’s counsel claimed, constituted a fatal-variance between the indictment and the evidence, and objected to the bill as evidence. The court admitted the bill in evidence.
This, the respondent’s counsel claims, is errorOn inspection of
It is necessary in an indictment of this character to set forth the bill or instrument correctly, both in the purport and in the tenor. Where the pleader professes to set out the instrument according to its tenor, he is bound to a strict recital. In relation to significant words, a variation of a letter is not necessarily fatal, if the sense and meaning is preserved, even if it varies the sound. The court in such case have three things by which to determine the legal identity, the letters or spelling, the sound, and the sense or meaning, and if the two former are departed from, still the latter is left by which to determine the legal identity. But names are arbitrary, having no such signification or meaning, but only the spelling and sound to identify them, and if both these are departed from by the pleader, the legal identity is gone, as there is nothing left by which to determine it. Hence the rule in relation to names is more strict, so that if, by the change of a letter the sound of the word is substantially changed, ihe variance is fatal; that is, to avoid an objection for variance in names, the allegation and proof must be, in technical language, idem sonans. There is no doubt as to the rule; the principal difficulty is in its application. In some cases it is clear that the change of a letter so changes the sound that the variance is fatal; while in other cases it is equally clear that it is . otherwise. In this case it must be confessed that the sound is very slightly changed, but the change is so extremely slight that it can hardly be detected by the ear on the closest attention. We think there is no such substantial difference in the sound as to constitute a fatal variance. A change of the letter m to n, in many cases that can be supposed, would so materially alter the sound as to constitute a fatal variance, but in this case the change of those letters, substituting the one for the other, in connection with the letter that follows, produces no such substantial variation of sound as to exclude the instrument as evidence. This exception must be overruled. In State v. Bean, 19 Vt. 530, it was held that Harriman and Heremon, were idem
The next question arises on the admission of evidence under the third count. That count charges the respondent with passing a counterfeit bill of the Andover bank. The bill admitted in evidence was objected on the ground that it contained the word “ three” six times on the margin at the top of the bill, and also on the same bill, close upon the margin, the words and figures, 11 Capital stock $100,000, secured by pledge of $100,000 Pennsylvania 6 per cent, bonds,” which was not noticed in the description of the bill in the indictment. The court overruled this objection and admitted the bill as evidence. This decision was correct. What was thus omitted constituted no part of the bill, and had no effect to add to or qualify the instrument as set forth, and was no more necessary to be set out than the ornamental part of the bill.
Another objection to both the John Hancock Bank bill and the Andover Bank bill was made by the respondent’s counsel, and overruled by the county court, that is, that the indictment in-alleging the purport of the bills, alleges that they purport to have been issued by banks incorporated by the legislature of Massachusetts, or to have been issued by and under the authority of said legislature, and that no such purport appeared on the face of the bills. It is true that the bills have no such purport, and it is
The remaining objection is, that the verdict of guilty is general, instead of being limited to the first and third counts, when the case shows that there was no legal evidence in support of the
Exceptions overruled.