{ "id": 8663691, "name": "STATE v. THOMAS HESTER", "name_abbreviation": "State v. Hester", "decision_date": "1898-03-25", "docket_number": "", "first_page": "1047", "last_page": "1052", "citations": [ { "type": "official", "cite": "122 N.C. 1047" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "120 N. C., 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660076 ], "opinion_index": 0, "case_paths": [ "/nc/120/0613-01" ] }, { "cite": "117 N. C., 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653806 ], "opinion_index": 0, "case_paths": [ "/nc/117/0697-01" ] }, { "cite": "115 N. C., 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653002 ], "opinion_index": 0, "case_paths": [ "/nc/115/0757-01" ] }, { "cite": "109 N. 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C., 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689648 ], "opinion_index": 0, "case_paths": [ "/nc/29/0210-01" ] }, { "cite": "97 Mo., 311", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 569073 ], "opinion_index": 0, "case_paths": [ "/mo/97/0311-01" ] }, { "cite": "83 Ala., 79", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3272888 ], "opinion_index": 0, "case_paths": [ "/ala/83/0079-01" ] }, { "cite": "44 N. C., 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276809 ], "opinion_index": 0, "case_paths": [ "/nc/44/0410-01" ] }, { "cite": "115 N. C., 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652825 ], "opinion_index": 0, "case_paths": [ "/nc/115/0716-01" ] }, { "cite": "80 N. C., 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695741 ], "opinion_index": 0, "case_paths": [ "/nc/80/0407-01" ] }, { "cite": "69 N. C., 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085520 ], "opinion_index": 0, "case_paths": [ "/nc/69/0495-01" ] }, { "cite": "95 N. C., 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275541 ], "opinion_index": 0, "case_paths": [ "/nc/95/0682-01" ] }, { "cite": "107 N. C., 876", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275388 ], "opinion_index": 0, "case_paths": [ "/nc/107/0876-01" ] }, { "cite": "85 N. C., 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278635 ], "opinion_index": 0, "case_paths": [ "/nc/85/0511-01" ] }, { "cite": "79 N. C., 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698262 ], "opinion_index": 0, "case_paths": [ "/nc/79/0642-01" ] } ], "analysis": { "cardinality": 561, "char_count": 9052, "ocr_confidence": 0.498, "pagerank": { "raw": 1.3471198709613152e-07, "percentile": 0.6324453665059238 }, "sha256": "21c710c45117b321144702ee20e7532906023ed80dd04869e0567cf16904f08f", "simhash": "1:ef13d0f9e652c4fe", "word_count": 1607 }, "last_updated": "2023-07-14T18:06:10.161321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. THOMAS HESTER." ], "opinions": [ { "text": "Clark, J.:\nThe defendant was indicted for perjury committed in an action wherein one \u201cAbram Hester was plaintiff and Thos. R. Robertson was defendant\u201d and the record offered in evidence showed that \u201cAbram Hester was plaintiff and Thomas Robertson was defendant.\u201d The defendant prayed the court to charge that this was a fatal variance between allegation and proof, and that the jury must find the defendant not guilty. There was evidence of the identity of Thomas Robertson and Thos. R. Robertson, which indeed was not denied, nor indeed questioned in any other way than by the prayer for instruction. His Honor declined to give the prayer for instructions, but told the jury that it was their duty to determine the identity of the persons named, and if they entertained a reasonable doubt concerning the same, they should acquit.\nThe defendant has no ground of complaint. It does not appear that he was in any wise prejudiced and his exception is one of the \u201crefinements\u201d which the Act of 181L, now The Code, Sec. 1183, was enacted to root out of the law. In State v. Brown, 79 N. C., 642, the indictment charged that the perjury had been committed in a. case \u2018 \u2018between the State and the said Benjamin Brown,\u201d while the proper title of the cause was \u201cThe State upon the relation of Maria Williams against Benjamin Brown.\u201d This was held no material variance. In State v. Collins, 85 N. C., 511, the perjury was alleged to have been committed in an action between \u201cthe State as plaintiff and the said James N. Collins, as defendant.\u201d The l\u2019ecord introduced showed that the action was entitled \u201cThe State and Cornelia Burnett against James N. Collins.\u201d The court held \u201cthe discrepancy immaterial and the exception untenable.\u201d To the same effect is State v. Peters, 107 N. C., 876, In State v. Hare, 95 N. C., 682, it was held an immaterial variance that the perjury was charged to have been committed on the trial of \u201cWillis Eain,\u201d while the record was that it was on the trial of \u2018 \u2018Willie Fanes\u201d. In State v. Davis, 69 N. C., 495, the false oath was alleged to have been made in an action \u201cbefore Joseph Q. Pratt, a Justice of the Peace in and for said county,\u201d instead of a \u201ccourt of the Justice of the Peace for Township A of Chowan County,\u201d as should have been done. This was held a mere \u201crefinement\u201d and cured by the Act of 1811 (now Code 1183.) In State v. Lane, 80 N. C., 407, the defendant was charged with forging an order addressed to \u201cDulks & Helker,\u201d and signed \u201cJ. B. Runkins.\u201d The proof was that the name of the drawee firm was \u201cHelker & Duts,\u201d and the name of the party forged was \u201cJ. B. Rankin.\u201d The court held that there being \u201cno uncertainty as to who were meant, this was not a substantia] and fatal variance.\u201d In State v. Collins, 115 N. C., 716, the defendant was charged with forging the signature of \u201cMajor Vass.\u201d The proof was that the order was signed \u201cMage Vase.\u201d This court approved an instruction to the jury that if they found that the defendant was attempting to induce the belief that W. W. Vass had signed the order, and that he was commonly known as \u201cMajor Vass,\u201d as charged in the bill, the spelling, \u201cMage Vase,\u201d was not a fatal variance, and many similar cases are cited in that opinion. Among others, State v. Houser, 44 N. C., 410, in which the property was laid in \u201cWilliam Michaels\u201d and the proof was that the true name was \u201cWilliam H. Michael,\u201d and it was not a material variance \u2014 a case closely resembling this. Also 83 Ala., 79, where the name laid in an indictment was \u201cGeorge Rooks\u201d and the proof was of \u201cGeo. W. Rux,\u201d and 97 Mo., 311, where the name in the indictment was \u201cJ. D. Hubba,\u201d and the proof was \u201cJoel D. Hubbard.\u201d\nOn a trial for larceny where ownership was laid in \u201cElizabeth Williams,\u201d and the proof was that \u201cBetsy Williams\u201d was the owner, the identity of these parties was properly left to the jury. State v. Godet, 29 N. C., 210, as likewise the identity of S. L. Williams and Samuel L. Williams, when one was named in the indictment and the other in the proof. State McMillan, 68 N. C., 440. To dike purport as to name of deceased, in a trial for murder (State v. Henderson, Id., 348.) Besides middle names and middle initials are immaterial and variances in that respect will not be considered, for the common law recognizes only one Christian name, 16 Am. and Eng. Enc., Law 114, and judicial notice will be taken of the ordinary abbreviations of Christian names. Ib.. 115, \u201cTh.\u201d was held equivalent to \u201cThomas,\u201d in Ogden v. Gibbon, 5 N J. L., 518, 531.\nThe practical sense of the age dem\u00e1nds that guilt or innocence shall be determined upon proof and that immaterial variances and refinements and technicalities shall not avail defendants when they are not in truth prejudiced thereby. The legislative department has made this very plain in numerous enactments, notably in The Code, Sections 1183, 1189, 908 and in many other sections and in the comparatively recent statutes providing short forms of indictment for murder (Acts 1887, Ch., 58, State v. Arnold, 107 N. C., 861), perjury (Acts 1889' Ch., 83 ; State v. Gates, 107 N. C., 832), and the like. It is not astonishing that defendants who have no meritorious ground of exception should clutch at shadowy nothings, but our courts have faithfully followed the letter and spirit of the legislation which favors trials upon the merits. As far back as State v. Moses, 13 N. C., 452 (at p. 464), the elder Ruffin, speaking of the Act (now Code, Sec. 1183) which provides that \u201cNo judgment shall be arrested by reason of any informality or refinement,\u201d says: \u201cThis law was certainly designed to uphold the execution of public justice by freeing the courts from those fetters of form, technicality and refine ment (italics his) which do not concern the substance of the charge and the proof to support it. Many of the sages of the law had before called nice objections of this sort a disease of the law and a reproach to the bench, and lamented that they were bound down to strict and precise precedents. . . .We think the legislature meant to disallow the whole of them and only require the substance, that is a direct averment of those facts and circumstances which constitute the crime to be set forth. It is to be remarked that the Act directs the court to proceed to judgment without regard to two things \u2014 one the form, the other refinement.\u201d This decision has been followed and cited time and again. In State v. Smith, 63 N. C., 234, the court says: \u2018\u2018The Act of- 1811 (now Code, Sec. 1183) has the almost universal approval of the bench and bar. It needs no higher endorsement than that of the late Chief Justice Ruffin (State v. Moses, 13 N. C., 452). . . . The Act has received a very liberal construction and its efficacy has reached and healed numerous defects in the substance as well as in the form of indictments. . . . It is evident that the courts have looked with no favor on technical objections, and the legislature has been moving in the same direction. The current is all one way, sweeping off by degrees \u201cinformalities and \u201crefinements\u201d until indeed a plain, intelligible and explicit statement of the charge is all that is now required.\u201d\n\u201cEver since 1811 it has been the evident tendency,\u201d says Ashe, J., in State v. Parker, 81 N. C., 531, \u201cof our courts as well as our law makers to strip criminal actions of the many refinements and useless technicalities with which they have been fettered by the common law, the adherence to which often resulted in the obstruction of justice and the escape of malefactors from merited punishment.\u201d To the same purport, State v. Kirkman, 104 N. C., 911, at p. 912; State v. Harris, 106 N. C., 682, at p. 689 ; State v. Haddock, 109 N. C., 873, at p. 875; State v. Shade, 115 N. C., 757; State v. Darden, 117 N. C., 697; State v. Neal, 120 N. C., 613.\nNo error.", "type": "majority", "author": "Clark, J.:" } ], "attorneys": [ "Mr. Zeb V. Walser, Attorney General, for the State.", "Messrs. Argo & Snoio and Battle & M'ordecai for defendant (appellant)." ], "corrections": "", "head_matter": "STATE v. THOMAS HESTER.\n(Decided March 25, 1898.)\nIndictment for Perjury \u2014 Allegation and Proof\u2014 Variance.\nWhere a bill of indictment for perjury alleged that it was committed in an action wherein one \u201cH was plaintiff and Thomas R. Robertson was defendant,\u201d and the proof was that \u201cThomas Robertson\u201d was the defendant in said action and there was evidence of the identity of Thomas Robertson and Thomas R. Robertson ; Held, That the variance was not fatal and it was for the jury to determine the identity of the two persons, it being the policy of the law (Section 1183, of The Code) that no judgment shall be arrested by reason of informality, technicality or \u201crefinement.\u201d\nIndictment for perjury tried before Robinson, J., and a jury at September, 1897, Term of Wake Superior Court.\nThe defendant was convicted and sentenced for three years to hard labor on the public roads of Wake County, and appealed from the refusal of a motion for a new \u2022trial, assigning as error the refusal of a prayer for instruction to the jury that there was a fatal variarice between the allegation and proof.\nMr. Zeb V. Walser, Attorney General, for the State.\nMessrs. Argo & Snoio and Battle & M'ordecai for defendant (appellant)." }, "file_name": "1047-01", "first_page_order": 1079, "last_page_order": 1084 }