Bench v. State

Riddick, J., (after stating the facts.) The judgment in this case must be reversed for the reason that the circuit court in our opinion erred in reading to the jury section 2086 of Sand. & H. Dig. The instrument alleged to be forged having been destroyed, it was set out in substance as signed “George H. Arnel.” The evidence showed that'it was signed “G. H. Arnel.” On this point the circuit judge, as part of his charge to the jury, read the section above named, which is as follows : “When a written instrument, which is the subject of an indictment for forgery, larceny or other offense has been withheld or destroyed by the act or procurement of the defendant, and such destruction or withholding is alleged in the indictment and proved on the trial, a mis-description of the instrument is immateral.” There was evidence tending to show that the instrument in question was destroyed by the defendant, but this section cannot apply in this case, for the indictment does not allege that the instrument was withheld or destroyed by the act of the defendant, and this statute applies only when such fact is both alleged in the indictment and proved on trial. The circuit judge probably overlooked the fact that such allegation was not contained in the indictment. Materiality of variailce. The instrument, being destroyed, was not set out by its tenor, but by its substance only. It was therefore a question for the jury to say whether the name “G. H. Arnel” was intended by the defendant to stand for and represent “George H. Arnel,” and whether it was in substance the same. name. If so, there was no material variance. Bishop’s New Crim. Pro. sec. 685, and cases cited. There are decisions that hold.that an allegation of the whole name and proof of initials will necessarily constitute a fatal variance, but most of these'were made in cases where the instrument was set out by its tenor, and not by its substance, and the reasons on which they are based do not apply here. Other questions were discussed by counsel, but in our opinion no other ground for reversal is shown. Por the error indicated, the judgment is reversed, and the cause remanded.