
    Samuel Mead v. The State of Ohio.
    1. Elisha Davidson and Elijah B. Davison are different names, and the description of a person in an indictment by one of these names is not, in the absence of statutory provision, supported by proof of a person bearing the other name.
    
      2. But such a variance comes within section 91 of the criminal code (66 Ohio1 L. 301), and can not work an acquittal of the defendant,unless it is found, to be material to the merits of the case, or that it may be prejudicial to the defendant.
    3. In order to prevent its working such acquittal, however, it must appear that the person intended to he described in the indictment and the person described in the proof are identical, the variance arising from a mere mistake’as to name.
    •4. Whether the mistake has so misled or prejudiced the defendant is a question for the court; but it is for the jury to say whether the person intended to be described in the indictment is the same as that described in the proof; and it is error in the court to take the latter question from the jury, by instructing them that the variance arose from a mere mistake in name, or that the grand jury intended by one name to describe a person shown by the evidence to be of a different name.
    Error to the Common Pleas of Columbiana county.
    The plaintiff in error was tried upon an indictment -charging him with the murder of Misha Davidson and was convicted and sentenced to be hung. On the trial the evidence proved, or tended to prove, a murder committed by the prisoner upon one JElijah B. Davison. 
      After the evidence had closed, the court charged the jury,, among other things, as follows: “He (Elijah B. Davison), is named in the indictment as Elisha Davidson, but the variance between the statement in the' indictment and the evidence offered in proof thereof, in the Christian and surname of the deceased, is not a ground for the acquittal of defendant, should his guilt in other respects be established, as no testimony has been introduced to show, and I do not find from any evidence in the case, or as a matter of law, that such variance is material to the merits of the case, or prejudicial to the defendant.” The court further instructed the jury, in substance and effect, that in order to convict the defendant it was sufficient to show that he was guilty of the murder of said Elijah Davison, in manner and form as charged in the indictment.
    To this charge of the court the prisoner’s counsel took exceptions, and they now seek to reverse the j udgment on the ground, among other things, that the charge was erroneous to the prisoner’s prejudice.
    
      J. A. Ambler, with whom was M. E. Taggart, for plaintiff in error:
    This is not a case of idem sonans. The variance in the name was fatal. Wharton’s Am. Cr. Law, sections 233, 256, 259, 597, 598, and 599 ; 1 Russell on Crimes, 555, 556; 21b. 789, 795; 2 Hale PI. of the Crown, 1 Am. edition, by Stokes & Ingersoll, 181, n. 4; 2 Gray, 358; Buck v. The State, 1 Ohio St. 61; Davis v. The State, 7 Ohio, 206; Pickens v. The State, 6 Ohio, 274; Turpin v. The State, 19 Ohio St. 540; Thalls v. The State, 21 Ohio St. 233.
    If this is not so, then a man may be indicted for killing one man, and convicted for killing another.' But it is claimed that section 91 of the criminal code authorizes this to be done. If section 91 assumes to do this, then it is clearly in violation of section 10, article 1, of the constitution.
    The identity of the person alleged to have been killed ■has always been held to be material. No description of the person is given other than his name. I maintain this is not a case of variance, but of complete failure of proof.
    The charge of the court to the jury was erroneous. It amounted to an amendment of the indictment. It seems to me perfectly clear that the question of the identity of the person named in the indictment, with the person pointed at by the evidence, was for the jury; that the jury must find as a fact, before there would be any conviction, that the person intended to be referred to in the indictment was in fact killed; and that the court had no right to assume that the grand jury had made a mistake, and named the wrong person, at least, not as an ultimate fact, whether it had such right, for the purpose of admitting evidence, and submitting the case to the jury or not.
    I think it not unlikely that the true intent of section 91 of the code of criminal procedure, is that the court shall not direct an acquittal unless it shall find that the variance between the proof and the indictment is material to the merits, or may prejudice the defendant, but shall, in the absence of such finding, leave the question of identity between the charge and proof, with other facts to be decided by the jury—as under the law before the passage of the code, it always was left to the jury—except in cases where there was a clear difference, where the court directed an acquittal. It was never in the power of the court to say that two names that might be different in pronunciation were identical, but when they were clearly different, the court might say they were not identical, and the statute, as I think, simply means, at the most, that notwithstanding the names are not exactly idem sonans, the court shall not direct an acquittal, unless, in its opinion, the difference is material. Turpin v. The State, 19 Ohio St. 540; Regina v. Davis, 43 L. & E. 564; Commonwealth v. Mehan, 11 Gray, 322; Commonwealth v. Donovan, 13 Allen, 571.
    
      John Little, attorney-general, for the state:
    Admitting the variance, it does not follow that the defendant was charged with killing one person, and found guilty of killing another person. Only this: the name of the deceased is laid as being one thing, when the proof showed it to be another. It is not a question as to identity ■of persons, but as to the correct name of one person. The name is descriptive of the person, it is true: but it is also true that it is not essentially so. A misdescription in this, as in many other respects, may not mislead. If it do not, the defendant is°not prejudiced.
    The ninety-first section of the criminal code is founded upon the assumption, supported by common experience, that a defendant is never in fact misled by a mistake in the indictment as to a name. There might be'a case conceived •of where he would not know. To meet such exceptional case, the last clause in said section 91 is added.
    The matter was duly submitted to the pourt, and the court, in the language of the record, and also in almost the very words of the statute, “ did not find that such variance is material to the merits of the case, or might be prejudicial to the defendant.” Having found that the variance did not prej udice the defendant, and that it was immaterial, the court, under the section, was bound to say to the jury that the defendant could not be acquitted on account of such variance, or, in the language of the statute, that it was “ not ground for an acquittal.”
    It is said that the action of the court amounted'to an amendment of the indictment.
    It is sufficient answer to this to say that what the court did do was authorized by section 91 of the criminal code.
    On the subject of amendment of an indictment, see Commonwealth v. Molior, 16 Pick. 120; State v. Stebbins, 29 Conn. 463 ; Saunders v. The State, 26 Lex. 119; Bernard v. The State, 25 Lex. 207; State v. Armstrong, 4 Minn. 335.
    As to the constitutionality of section 91:
    The legislative power of the general assembly is as comprehensive as that of the. British parliament, except in so far as it is abridged by the constitution.
    Is there any such restriction in it as to prevent this legislation ? I think it is not clearly prohibited by section 10, article 1; and it must be clearly shown to be in violation, of the constitution before this court will disturb it.
    
      Wilson S. Potts, prosecuting attorney, also for the state, on the question of variance,
    cited Criminal Code, sec. 91; 19 Ohio St. 545; 1 Wharton’s A. C. L., sec. 597; 2 Ohio St. 568.
   Welch, C. J.

Elisha Davidson and Elijah B. Davison are different names, and the description of a person by one of the names is not, in the absence of statutory provision,, supported by proof of a person bearing the other name; but, by the provisions of section 91 of the criminal code (66 Ohio L. SOI), a variance of this kind can not work an acquittal of the defendant, unless it is found to be “ material to the merits of the case or prejudicial to the defendant.” In order to prevent its working such acquittal, however, it must appear that the person intended to be described in the indictment is identical with the person described in the proof, the variance arising from a mere mistake in the name. Whether such mistake in the name is material to the merits of the case, or prejudicial to the defendant, is a question for the court, as we understand the law. But it is for the jury to say whether the person intended to be described in the indictment and the person described in the proof are one and the same person; in other words, whether the variance is a mere mistake in the name or is a mistake as to the person. We think, therefore, that the court erred in its instructions to the jury, by taking this question of personal identity from them, and instructing them, as it virtually did, that Elijah B. Damson was the person intended in the indictment, and that the grand jury, by mere mistake, designated him by the name of Elisha Davidson. True, the evidence leaves little if any doubt that the question was correctly decided by the court. But this does not cure the error, which consists in the fact that the court, in deciding the question, usurped the province of the jury. The jury should have been instructed to the effect that if they found, that the deceased, Elijah B Davison, was the person intended by the grand jury under, the name of Elisha Davidson, the variance was immaterial, .and the defendant might be convicted of the murder of Elijah Davison.

Judgment reversed, and cause remanded.

"White, Res, Gilmore, and McIlvaine, JJ., concurred.  