
    William Turpin v. The State.
    1. The provision in section 96 of the code of criminal procedure, which declares that it shall he sufficient in any indictment where it is necessary ts allege an intent to defraud, to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, is not in conflict with section 10 of the bill of rights, which requires the accused, on demand, to be furnished with “the nature and cause of the accusation against him.”
    3. When, on a trial for forgery, a variance is alleged between the name to the forged instrument and the name appearing in the indictment, if the variance is plain, such instrument ought not to be allowed to go in evidence ; but if the forged name is uncertain, and susceptible of being read as agreeing with the name stated in the indictment, it is not error for the court to submit the question to the jury.
    Error to tbe court of common pleas of Ross county.
    The indictment charged the defendant below with uttering a forged order of the following tenor:
    “Jan the 7. 1870.
    “ Sir Mr aid please let the barer Hav a pare of boots and I will settel the sam ' A Renick”
    The order was averred to have been uttered' “ with intent to prejudice, damage, and defraud,” but the name of the person intended to be defrauded was not stated.
    On tire trial, the original order was offered in evidence, to the introduction of which the defendant by his counsel objected, on the ground that there was a variance between the same and the order set out in the indictment. The objection was overruled and the order was admitted in evidence, and it was left to the jury to determine upon the instrument and the evidence whether there was a variance. To this ruling the defendant excepted.
    The alleged variance arose as to the name signed as drawer. A photographic copy of the order is made part of the bill of exceptions. The chirography appears to be bad, and the letters imperfectly defined. The name is capable of being read “ Rennick ” or “ Runick.”
    Christian Aid, to whom the order was uttered by the defendant, testified: “ I read the order when he presented it to me, and then asked him what Renick it was ? He said it was the Renick that lived right above us, and has an iron fence in front of his house. Alexander Renick lives just above us, and has an iron fence in front of his residence.”
    Alexander Renick testified : “ I reside in Chülicothe, O., on Water street, and west of Aid’s (the last witness) shoe shop. There is an iron fence in front of my residence. My name is spelled Renick; the “ e ” has the short sound, as in men. I do not spell my name as it is spelled in the order.”
    A verdict having been rendered against the defendant, there was a motion for a new trial on the grounds, in substance, that there was a variance between the indictment and the proof, and that the verdict was against the evidence. This motion was overruled.
    There was also a motion in arrest of judgment, on the ground, in sfibstance, that the facts stated in the indictment do not constitute an offence.
    The ruling of the court upon these motions, and in allowing the order to go in evidence, is now assigned for error.
    
      Thad. A. Minshall (with J. H. Keith) for plaintiff in error:
    1. The indictment does not contain a sufficient averment of the intent to defraud. S. & S. 264, sec. 22; 1 Bishop's Crim. Proced. secs. 41, 48, 277, 398-405; 2 id. sec. 374; Barnum v. The State, 15 Ohio, 721.
    As to the provisions of sec. 96 of the code of criminal procedure. The code does not change nor purport to change the substantive criminal law of the State.' It is a code of criminal proaecbwe, not of criminal law ; and does not attempt to repeal or modify the. 22d section of the crimes act.
    So far as the legislature has attempted to dispense with one of the material requisites of the crime of forgery, the provision is clearly unconstitutional. Sec. 10, Bill of Rights.
    The term indictment is used in the constitution according to its common-law signification. Work v. The State, 2 Ohio St. 302.
    As to what an indictment and its requisites are, see 1 Bouv. Dic. 624, 625; 1 Archb. (Wat. Ed.) 230, 282, 283, note (1), and authorities there cited.
    Certainty and precision are required in indictments. Lamberton v. The State, 11 Ohio, 284; Drummond v. The State, 10 Ohio, 512; Dillingham v. The State, 5 Ohio St. 283.
    .The English statute defining forgery is different from our own. 1 Archb. (Wat. Ed.) 290. And the English people have no written constitution limiting the powers of their legislature. 1 Bla. Com. 160; Sedgwick on Stat. and Const. Law, 475.
    
      
      2. There is a material variance between the order offered in evidence as the one alleged to have been forged and that set out in the indictment.
    Descriptive allegations cannot be rejected, but certainty is required in indictments. 1 Greenl. Ev. sec. 56; 1 Stark. Ev. (6th Am. Ed.) 372; 1 Bishop on Crim. Procedure, secs. 314, 317, 319, 320; Pickens v. The State, 6 Ohio, 275; Price v. The State, 19 Ohio, 423; State v. Weaver, 13 Iredell, 491; Reading's case, 2 Archb. (Wat. notes) 803; Griffin v. The State, 14 Ohio St. 60; Moore v. The State, 12 Ohio St. 387.
    As to secs. 90 and 91 of the code of criminal procedure. Sec. 90 is only declaratory of the common law; and the discretion conferred by sec. 91 is a legal one, and must be exercised upon settled principles, insuring certainty and precision in indictments. This is required for the protection of innocence. On this view, the variance in this case was material. Such variance must take the party by surprise. He may again be placed in jeopardy for the same offence.
    The prosecutor did not follow the 93d section of the code. If the order had been set out according to the purport, the variance would have been fatal. Reading's case, 2 Archb. (Wat. notes), 803; Gilchrist's case, id. 803, 804; Dana v. The State, 2 Ohio St. 94.
    3. The question of variance was for the court. It was error to leave that question to the jury. 1 Stark. Ev. (6th Am. Ed.) 371, 463; 1 Phil. Ev. 18; Huck's case, 1 Stark. Cas. 522; Gorton v. Hadsell et al., 9 Cush. 511; Montgomery v. The State, 11 Ohio, 424; Turner v. Turner, 17 Ohio St. 452; Roscoe's Crim. Ev. 12.
    1. The verdict is against the weight of the evidence.
    
      F. B. Pond, attorney-general, for the State:
    1. The indictment seems to charge the intent to defraud sufficiently under section 96 of the criminal code.
    That the same power that makes the act of uttering a forged order a crime (S. & S. 261, sec. 22) has also the power to declare what shall be a sufficient form of accusation to charge the person with the commission of the criminal act, is settled, in Lougee v. The State, 11 Ohio, 68.
    This section of the code is almost an exact copy of the English statute 14 and 15 Vic. c. 100, § 8, recited in 1 Bishop’s Crim. Proced. 556, 557.
    2. From a careful examination of the indictment and photograph, I am satisfied that there is' no -variance. The name to the order was intended to be “ Eeniclc,” as the testi- . mony shows. The court was justified in allowing the order to go to the jury, and the jury in finding as they did. United States v. Hinman, 1 Baldwin's C. C. 293; State v. Potts, 4 Halstead, 32.
    As to what constitutes a variance, and its effect, see sec. 91 of the criminal code.
   White, J.

Two alleged errors of law are relied upon for the reversal of the judgment.

1. That the omission to set forth the name of the person intended to be defrauded renders the indictment insufficient.

2. That the court erred in allowing the order to be given in evidence to the jury.

The indictment is framed in accordance with section 96 of the code of criminal procedure, which declares that it shall be sufficient “to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person or .body corporate,” etc.

This section only concerns the form of the indictment, and does not, as we suppose, alter the character of the offence as defined in the crimes act. The .section is a transcript of sec. 8, ch. 100, of 14 Victoria, and in Regina v. Hodgson (36 E. L. and Eq. R. 626) such was held to be the only effect of the British statute.

The objection, however, to this section of the code is placed by counsel on the ground that it infringes on section 10 of the bill of rights, which guarantees to the defendant the right “to demand the nature and cause of the accusation against him.”

We do not understand that it was intended, by this provision, to place the rules of- the common law) prescribing' the particularity with which offences were required to be charged, beyond all legislative control. And where, as in this case, the indictment -clearly informs the accused of the transaction for which he is called upon to answer, it is, we think, in this respect, free from constitutional objection.

The particular party intended to be defrauded is matter of inference to be drawn from the facts of the transaction, rather than a part of the transaction itself.

At common law, the intent may be laid differently in anj number of counts in the same indictment; and, for all substantial purposes of giving information to the accused, the present indictment is as effective as if it contained numerous counts, each stating a different party as the object of the intent.

2. The ruling of the court which constitutes- the second ground of error is' sustained by the State v. Potts (4 Halst. 26), and by the United States v. Hinman (1 Bald. C. C. R. 293); but the holding in Rex v. Hucks (1 Stark. R. 424) is to the contrary.

The general rule seems to be, .that a change in the spelling of a word which does not alter' its- meaning, 'or in the spelling of a name where the idem, soncms is preserved, is not ■deemed a material variance. 1 Starkie's Ev. s. p. 478.

If the variance between the name to -the order and the name appearing in the indictment had been plain, it' tvould have been the duty of the court to-refuse to allow the order-to be given in evidence. . But where the name to the order was uncertain, and was susceptible of being read and’ understood as agreeing-with the name’stated in the indictment, it was not, in our opinion, érror' for the court to submit the question to the jury. The State v. Potts supra; Hess v. The State, 5 Ohio, 8; May v. The State, 14 Ohio, 466.

3. The remaining question is whether the court erred" in', refusing a new trial, on'the ground that the verdict is against' the evidence. It is a sufficient answer to this to say, that' the' evidence embodied in the bill of exceptions does noir make a case calling for the interference of this court. The judgment will therefore be affirmed.

Brinkeehoff, C.J., and Scott, Welch, and JDay, JJ., concurred.  