154 Ky. 799 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
Jennie Sutton was indicted in the Daviess Circuit Court, charged with grand larceny. On a trial of the case she was found guilty and the court having entered judgment upon the verdict, she appeals.
The first point made on the appeal is that the indictment is insufficient. It is charged in the indictment ment that the accused “feloniously took from the person of Stuart Bobbins his pocket hook containing more than. $20 in lawful money of the United States; the ex
It appeared on the trial that the person referred to was Stewart Roberts, and it is insisted that the variance was fatal. In Hensley v. Commonwealth, 1 Bush, 11, the defendant was indicted for stealing Stephen Daniels’ hog. The proof showed that the hog was the property of Phillip Daniels. It was held that the prosecution could not be sustained. In McBride v. Commonwealth, 13 Bush, the defendant was charged with stealing the horse of W. F. Watson. The proof showed the horse belonged to Cassam Watson. It was held that the variance was fatal. On the other hand, in Bronaugh v. Commonwealth, 2 Ky. L. R., 286, it was held that where the name alleged in the indictment is idem sonans, the variance is not fatal; and this is a well settled rule. There is no doubt that Stuart and Stewart are idem sonans. Robin is only a diminutive of Robert, like Rob,. Bob, Bobby, etc. (See Webster’s Dictionary.) The tendency of modern decisions- is to relax the rule and to hold the variance not fatal, where the names are similar in sound and the party -was not in fact misled and could not reasonably have been misled. In this case the: parties were all negroes; the spelling of negro names is very uncertain, especially where they cannot read or write. The court treated the two names as the same, using them as synonymous in his instructions. The
“A judgment of conviction shall be reversed for any error of law appearing on the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby.”
Upon consideration of the whole record, we are satisfied that the substantial rights of the defendant, were in no manner prejudiced by the spelling of the name as Bobbins, instead of Boherts, and that under the statute the judgment should not be reversed for this reason.
After the State had introduced its evidence, and the defendant had introduced her evidence, the State introduced in rebuttal Bertha Williams, and the Commonwealth attorney, over the objection of the accused, was allowed to ask her a number of questions which were incompetent; but at the conclusion of her testimony, the court ruled it all out. It is insisted that for this reason, a new trial should now be granted. There would be more force in this if the witness had testified to any facts affecting the defendant, but she answered in the negative the questions that were asked her, and when, the court ruled out her entire testimony, we do not see: that the defendant was'in any worse position than she1 would have been if the court had refused to allow the witness to answer the questions when asked. We cannot presume that the jury were influenced by the unsuccessful effort of the Commonwealth attorney to prove certain facts by the witnesses, when the court at the conclusion of her evidence ruled out all the testimony.
Judgment affirmed.