
    John Pickens, alias John K. Pickens, v. The State of Ohio.
    Where an indictment alleges that an affidavit was made, purporting to have been made by John K. Pickens, and the affidavit produced is actually made by John Pickens, no reference being had to John K. Pickens, the variance is fatal. Judgment reversed, and order to discharge prisoner.
    This was a writ of error certified here for decision from the ■county of Meigs. The plaintiff in error was indicted for perjury. The offense was alleged to have been committed in making affidavit to a plea of non est factum, in a trial before a justice of the peace, in which the plaintiff in error was defendant. In the suit before the justice, a note was produced in the following terms :
    “Eor value received, I promise to pay unto Henry Wheelbager, 275] *or crder, the amount of four dollars and fifty cents without defalcation for value received of him, as witness my hand and seal, this March 17, a. d. 1834.
    His
    John -f K. Piokens.
    The affidavit was in these words:
    Personally came before me, William Crooks, a justice of the peace in and for Sutton township, John Pickens, and made oath that he never did make, sign, or place his signature or mark to a certain note which he is. called this day to answer to; said note appears to have been been made payable to Henry Wheelbager or order, bearing date March 17, 1834, amount four dollars and fifty cents.
    His
    John -j- Piokens.
    The indictment charged the accused by the name of John K. Pickens, alias John Pickens. In describing the note in question, the following terms were used: “anote or writing obligatory purporting to have been executed by the said John K. Pickens, alias John Pickens, for the payment,” etc.
    In describing the affidavit in support of the plea of non est factum, the indictment set forth that “ the said John K. Pickens alias John Pickens, made a certain paper writing purporting to be an affidavit in writing of him, the said John K. Pickens, alias John Pickens,” etc.
    
      At the trial in the court of common pleas, the counsel for the accused, objected to the admission in evidence of the note on account of a variance from the note described in the indictment; the note presented being subscribed John K. Pickens only, no alias, ovother name, as John Pickens, appearing to it. The objection was overruled, and the note admitted in evidence. The counsel for the accused objected also to the admission in evidence of the affidavit, it being subscribed and purporting to be made by John Pick-ens only, no alias John K. Pickens appearing tobe connected with it. This objection was also overruled, and the affidavit admitted in evidence. The counsel for the accused excepted to these opinions of the court of eommou pleas, and the accused being convicted, this writ of error was brought, and the final execution of the sentence suspended.
    *Brazee, for plaintiff in error:
    Tbe first question for the consideration of the court, upon this record, is, were those papers properly admitted as evidence to the jury ? That part of the indictment which sets out the note and affidavit,sets them out as “purporting” to be made by “John K. Pickens, alias John Pickens.” The note appears to have been signed “ John K. Pickens ” only, and the affidavit appears to be signed “John Pickens” and in its body it declares that it was made by John Pickens. The word “purport” has a technical meaning, as fixed and settled as any term known to the law. In 2 East’s Crown Law, 980, it is said that, “ in all eases the word-, purport imports what appears on the face of the instrument; for want of attending to which many indictments have been set aside.” In 2 Russell, 1485, it is also defined, “ to import what appears on the face of the instrument.’ ’ In the same book, page 364, it is. declared to be the apparent and not the legal import. In Jones’ case, the instrument was laid in some of the counts to be & paper-writing purporting to be a bank note, it was holden, as it did not. purport on the face of it to be a bank note, the counts could not. be supported. 2 Russell, 363 ; 2 East, 883.
    In Reading’s case, the indictment charged that the bill of exchange, the, subject of the forgery, purported to be directed to one-John King, by the name and description of John Ring; the bill-, was in faet directed to John Ring; the prisoner being convicted; the twelve judges held that judgment ought to be arrested, on th«i ground that the bill did not in, fact, purport to be directed to one John King, as stated in the indictment. Buller, Justice, in delivering the opinion of the judges in that case, said, “it is clear that where an instrument is to be set forth the description, that it purports a particular fact, necessarily means that what is stated as the purport of the instrument appears on the face of the instrument itself.” 2 Russell, 363; 2 East, 981. In the Commonwealth v. Kearses, 1 Virginia Cases, 109, the indictment alleged that a forged certificate purported to be signed by Bowling Starke, and the signature was B. Starke; the variance was held to be fatal. Does the note purport, or appear upon its face to be signed by “John K. Pickens, alias John Pickens?” Certaintly not, and if the “ alias John Pickens” be regarded by the court as descriptive 277] of the note, the ^variance must be fatal. But should the court incline to the opinion, that John K. Pickens ” only is descriptive of the note, and that the “ alias John Pickens ” is descriptive of the person of the defendant, the note may have been properly admitted as evidence. But the affidavit can not be disposed of in the same way; if the “alias John Pickens,” in that part of the indictment descriptive of the note, be regarded by the court as descriptive of the person of the defendant, and not of the ¡note, for the same reason, the court, to be consistent, must hold :tbat the “ alias John Pickens,” in that part of the indictment •which describes the affidavit, is also descriptive of the person of sthe -defendant, and not of the affidavit. And then it will appear •/that the court below, under the allegation in the indictment that ithe affidavit purported to have been made and executed by “ John K. Pickens,” adinitted in evidence an affidavit, which in the body, ¡as well as by the signature, purported and appeared upon its face ito have been executed by “ John Pickens.” It appears to me ■most clearly that the affidavit admitted in evidence is not the af:fidavit set out in the indictment, and that a paper signed “ John Pickens” does not purport or appear upon its face to have been signed by “John K. Pickens.” The proposition needs only to be slated in its simplest form to elucidate the error.
    H. H. Hunter, contra:
    The first point made is that the note and affidavit set out in the bill of exceptions were improperly admitted in evidence to the jury. AndjjM'Sij.as to ¡the note; that it set out in the indictment as “purporting” to have been executed by the said “John IL Pickens, alias John Pickens;” whereas the note offered in evidence purports to be signed or executed John his M mark IL Pickens, which is variant from the indictment. This part of the indictment is inartificially drawn, but is substantially good. The difficulty complained of by the plaintiff in error does not in fact exist, though apparently it does. It is to be observed that the defendant is named and described in the indictment, by the name of John K. Pickens, alias John Pickens. And the averment in the indictment is substantially that the note purported to be executed by the defendant; not that the name signed to the note was John IL Pickens, 'alias John Pickens. The cases cited by counsel for ^plaintiff in error to show the legal effect of the word “ pur- [278 port” are doubtless good law, but as we think- inapplicable to the case. As to the affidavit, we think clearly the same answer may be made. This averment of the indictment is, that the said John IL Pickens, alias John Pickens, made a certain paper writing purporting to be an affidavit of him the said John IL Pickens, alias John Pickens. Clearly this averment does not undertake to set out the name attached to the affidavit, but merely to aver (as in the case of the note) that the affidavit purported to be executed by the defendant., who, in the indictment, is presented by the name of John K. Pickens alias, John Pickens. The question recurs, do the papers set out in the bill of exceptions purport to be executed by the defendant ? For that is what we claim the averments of the indictment to be in substance.
    As before stated, the -name signed to the note is John his M mark IL Pickens, and the affidavit is signed John Pickens. The defendant is described in the indictment by both these names, or rather as being known by either of them. In fact, then, these papers do purport to be signed by the defendant; one under each of the names by which he is known and described in the indictment.
   Held by the Court :

That, in this case, the indictment, by reciting that the note was executed by John IL Pickens, alias John Pickens, describes not the note itself) but the person executing it. Consequently there was no variance between the note described and the note presented in evidence. There was, therefore, no error in admitting it.

Held, further, that the indictment, in describing the affidavit, reciting that “ the said John IL Pickens, alias John Pickens, made a certain paper writing purporting tobe an affidavit in writing of him, the said John IL Pickens, alias John Pickens,” in fact describes a paper subscribed “ John K. Pickens, alias John Pickens.” The paper produced in evidence, being subscribed John Pickens only, was variant from that described in the indictment, and, therefore, inadmissible as evidence.

Judgment reversed, and the accused ordered to be discharged.  