
    Joseph Lytle v. The State of Ohio.
    1. Where a party to a judicial proceeding is described in the indictment as-Curtis Pratt, which was his t-rue name, it is not error to admit in evidence a transcript in which the same person is described as Curt Pratt, the variance, under section 91 of the criminal code, not being material.
    2. Where a charge of perjuty is based upon testimon}^ given in reference to a past transaction, evidence that the accused was “ greatly intoxicated ” at the time such transaction occurred, is a circumstance proper to be submitted to the consideration of the jury in determining whether the accused knowingly testified falsely.
    Error to the Court of Common Pleas of Allen county.
    Joseph Lytle, the plaintiff in error, was indicted for perjhiry-
    The indictment charged that the crime was committed “ in a certain proceeding, examination, and cause then and there pending before "William "Wilson, one of the justices of the peace in and for said county, wherein the State of Ohio was plaintiff, and the said Joseph Lytle and one-Curtis Pratt, were defendants,” etc.
    On the trial, the state introduced William Wilson, the justice of the peace before whom the examination was-had, as a witness, who testified to his official character,, and that, as such officer, he kept a criminal docket, and that at the time stated in the indictment there was an examination in a cause then pending before him, as such justice, “ wherein the State of Ohio was plaintiff, and Joseph Lytle and Curt Pratt were defendants ;” that the cause was-docketed by this title, and the proceedings in said cause-were recorded in said criminal docket under the same title.. Thereupon the state offered in evidence a duly certified transcript of the docket entries made, by the justice, in the-cause, in his criminal docket, to the introduction of which the defendants objected. Whereupon the state offered testimony “ tending to prove that the real and true name of 
      Curt Pratt was Curtis Pratt, and that the person named and described therein as Curt Pratt was the same person named and described in the indictment as Curtis Pratt,” to the introduction of which testimony the defendant objected, which objections were both overruled, and the testimony and transcript admitted as evidence; to both of which the defendant excepted.
    The proceeding before the justice of the peace was a prosecution against Lytle and Pratt for an assault and battery committed on John ‘W. Isham, which the testimony tended to prove took place at a certain point on a public road, at about the hour of half past five o’clock in the afternoon of the day named.
    The defendant, Joseph Lytle, was sworn and examined as a witness in behalf of the defendants, on the trial before the justice. The indictment, in substance, charged that, in the testimony given by him on the trial, he corruptly, willfully, and falsely testified that he and Pratt had not been traveling on the road at the point where the assault and battery was committed, on the day named, but had traveled on another and different road, at the time named; and further, that they did not meet or see John W. Isham on the day or at the time tbe assault and battery was committed, etc.
    On the trial, after introducing testimony tending to prove the charge, the state rested; and the defendant offered witnesses, who were acquainted with him, and by whom he proposed and offered to prove that at about the hours of four o’clock, half past four o’clock, ten minutes after five o’clock, and at nine o’clock in the afternoon and night of the day upon which tbe assault and battery was committed, “ the defendant was greatly intoxicated, that he was unable to walk without staggering, and that he was in an incoherent and nearly insensible condition of mind.” To all of ■which testimony the state, by its counsel, objected, and the court sustained the objection, and refused to permit said testimony to go to the jury; to all of which the defendant •excepted.
    
      The defendant moved the court to set aside the verdict of conviction, and for á new trial, on the grounds, among others, that the court erred in admitting in evidence the testimony objected to by the defendant, and in refusing to-admit the testimony offered by him. The motion was overruled, and the defendant sentenced to the penitentiary. The défendant took a bill of exceptions. The rulings of the court, on the admission and rejection of testimony, are-assigned for error in this court.
    
      Ballard § Mead and Pillars $ Townsend, for plaintiff in error.
   Gilmore, J.

1. The first question raised upon the record is: Did the court err in admitting in evidence the transcript-from the justice’s docket, and in admitting evidence tending to prove that Curt Pratt, as described in the transcript, and Curtis Pratt, as described in the indictment, was the-same person ?

Under the law, as it formerly stood, the allegations of the indictment, as to the judicial tribunal before which the-alleged proceedings were had, and the title of the cause in which the oath was administered, and the false testimony given, were essentially descriptive of the offense ; and previous to the adoption of our code of criminal procedure, the state would have been required to prove'them strictly as alleged : and a variance between the allegations of the-indictment, as to matters of description, and the testimony on the trial, in either of these respects, would have been fatal. (1 Greenleaf’s Ev., secs. 56, et seq.)

But under the provisions of our criminal code, such variance is not necessarily fatal, and will not be so “ unless-the court before which the trial shall be had shall find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” (66 Ohio Laws 301, sec. 91.)

This abrogates, in our state, the rule of evidence on the-subject of variance, in matters of description, between the-allegation and proof. Instead of looking to the rules of evidence to ascertain whether there is a variance between the allegations of the indictment and the evidence offered, the court now looks at the case as it stands before-it; and if there are variances between the allegations and the proof offered, the defendant, for that reason alone,, must not be acquitted, unless, in the opinion of the court, the variance is material or may be prejudicial to the defendant. The opinion of the court, in this respect, is now substituted for the former rule of evidence on the sub-r ject.

As the ruling of the court upon the admission or rejection of testimony, under the former rule of evidence on-this subject, was reviewable on error, so may be the opinion of the court- as to whether the variance is material or prejudicial to the defendant, in like manner, be reviewed on error.

In this case, the court must have been of the opinion that the variance between the allegation and proof was not material to the merits of the case or prejudicial to the defendant, and for this reason admitted the evidence'objected to. In this we find no error. Indeed, for myself, I think the transcript might properly have been admitted without evidence as to the identity of .the person called in the indictment Curtis Pratt and in the.transcript Curt Pratt.- Under the provisions of section 91, above cited, this was not prima facie such a material variance as would affect the merits of the case or prejudice the defendant. •

2. Did the court err in rejecting the evidence offered by the defendant, as to his intoxicated condition at the time the assault and battery was committed ?

Under our statute, perjury consists in “ willfully and corruptly ” deposing, affirming, or declaring “ any matter to-be fact, knowing the same to be false, or denying any matter to be fact, knowing the same to be true.”

The crime, therefore, depends upon the guilty knowledge with which it is committed. In cases of this nature, while intoxication will not- excuse the crime, it should be submitted to the jury, as a fact to be considered in connection with the other testimony in the case, in determining whether the( alleged crime was committed with guilty knowledge and intent. Pigman v. The State, 14 Ohio, 555.

Either .by experience or observation, it has come to be generally known and understood, that the effects of intoxication is not the same upon all persons, and that while great intoxication renders some persons forgetful of the past, and oblivious, not only of what is passing a,round them, but also of their own acts while in that condition; it does not wholly incapacitate others, but is liable to render them incapable of seeing things in their true relations, and that they often conceive distorted, incorrect, or imperfect ideas, which to them are real, of what transpired around them or was done by them while in such condition.

In this case, the questions as to what effect great intoxication ' produced upon defendant, and whether it had the effect of rendering him incapable of remembering, or of correctly remembering, while on the witness stand, the previous occurrences in reference to which he was testifying, were questions that should have been submitted to the jury and considered by it in determining the knowledge or intent with which the defendant testified falsely.

The testimony offered, as to the greatly intoxicated condition of the defendant, immediately before and shortly after the assault and battery, in reference to which it was alleged the perjury was .committed, should, for the reasons above stated, have been submitted for the consideration of the jury as a fact, and the court erred in holding that in law it was inadmissible.

For this error the judgment of the court of common pleas is reversed, and the cause remanded to that court for a new trial.

Judgment accordingly.  