Mooney v. State
Supreme Court of Arkansas
Appeal from Johnson Circuit Court; J. H. Evans, Special Judge; The indictment alleges that the steer belonged to Grover Fincher but the proof showed that Grover Fancher owned it. The allegation of ownership is material, and should be proved as alleged. 111 Ark. 462; 102 Id. 629; 73 Id. 32; 55 Id. 244; Kirby’s Digest, § 2233. This section has no application where the correct name is not given. The variance is .fatal. Supra.
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Appeal from Johnson Circuit Court; J. H. Evans, Special Judge; The indictment alleges that the steer belonged to Grover Fincher but the proof showed that Grover Fancher owned it. The allegation of ownership is material, and should be proved as alleged. 111 Ark. 462; 102 Id. 629; 73 Id. 32; 55 Id. 244; Kirby’s Digest, § 2233. This section has no application where the correct name is not given. The variance is .fatal. Supra. The court should have instructed the jury to find for defendant as requested. The names are not “idem sonans.” There is no variance. Witness first stated that his name was…
1ConcurrenceMcCULLOCH, C. J.
I concur in the judgment for the reason that the testimony is sufficient to warrant the finding that the name of the owner of the stolen property is Fincher, as charged in the indictment, and not Faneher — at least that he was known by that name — and there was no variance between the allegation and proof. Bennett v. State, 84 Ark. 97; Woods v. State, 123 Ark. 111. I do not agree, however, to that part of the opinion which holds that the name Fincher and Fancher have the same sound so as to he, in effect, the same in the indictment and in the proof. Where the variance occurs merely in the…
2Cases cited11 opinions
- Bennett v. StateSupreme Court of Arkansas · 1896
- Birones v. StateSupreme Court of Arkansas · 1912
- Bennett v. StateSupreme Court of Arkansas · 1907
- Taylor v. StateSupreme Court of Arkansas · 1904
- Godard v. StateSupreme Court of Arkansas · 1911
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