
    Goodlove v. The State of Ohio.
    
      Allegations in an indictment — What is essential to the charge— Indictment charges accused as killing “one alias another” in names — Evidence against “another” will not sustain verdict against accused "one," when — Criminal law.
    
    1. An allegation in an indictment descriptive of that which is essential to the charge therein made is a material allegation and cannot be rejected as surplusage.
    2. Where an indictment charges 'the accused with having assaulted and killed one “Percy Stuckey alias Frank McCormick,” evidence that the defendant assaulted and killed a person commonly known as Frank McCormick will not sustain a verdict of guilty against the defendant unless it also be shown that the Frank McCormick assaulted and killed and Percy Stuckey were one and the same person.
    (No. 12255
    Decided June 28, 1910.)
    Error to thé Circuit Court of Wyandot county.
    . The facts of this case are sufficiently stated in the .opinion.
    
      
      Messrs. Sheets & West and Messrs. Meek & Stalter; for plaintiff in error.
    The indictment, as it ' stands, charges two offenses, one assault with intent to kill, the other shooting with intent to kill. But it does not charge homicide. The trial judge, however, construed the indictment as though it charged murder in the second degree. Upon what theory he arrived at this conclusion we cannot comprehend, and he did not undertake to enlighten us. In submitting the case to the jury the court submitted the question as to whether the accused was guilty of murder in the second degree and all the lesser offenses; and in that we confidently claim there was fatal error.
    If permitted to draw inferences, we might probably infer that the prosecuting attorney intended to draw an indictment for murder in the first degree, and that the grand jury intended to return such an indictment. But in criminal cases inferences are not permitted. That proposition is elementary. State v. Graham, 22 So. Rep., 807; 1 Bishop Crim. Procedure (4 ed.), Sections 518, 519; Fouts v. State, 8 Ohio St., 98; Hagan v. State, 10 Ohio St., 459; Drake v. State, 19 Ohio St., 211; Knight v. State, 54 Ohio St., 365; Jones v. State, 21 Tex. App., 349; State v. Daugherty, 30 Tex., 360; Littell v. State, 133 Ind., 577; State v. Hagan, 164 Mo., 654.; State v. Rector, 126 Mo., 328; State v. Keerl, 29 Mont., 508; Edmonson v. State, 41 Tex., 496; State v. Hutchinson, 26 Tex., 111; Cook v. State, 72 Miss., 517; State v. Halder, 13 Am. Dec., 378; Jester v. State, 9 S. W. Rep., 616; Parker v. State, 114 Ala., 690; Griffith v. State, 
      90 Ala., 583; State v. Caspary, 11 Rich. L. (S. Car.), 356.
    We wish to add also that the statutes of all these states with reference to variance, surplusage, formal defects, etc., are substantially the same as those of the state of Ohio.
    It is- charged in the indictment that the name of the person killed was Percy Stuckey, alias Frank McCormick. That means, of course, that the name of the person killed was Percy Stuckey, and that Frank McCormick was not his name but an alias under which he may have gone at some time in his life. The evidence in -the case shows that it was Frank McCormick who was killed, and not Percy Stuckey. We do not think it will be seriously controverted that the name of the person assaulted, as charged in the indictment, must correspond with the proof; otherwise the defendant is entitled to an acquittal. The reason for this rule is entirely plain. For should an accused be charged with killing John Brown and it appeared in evidence it was James Brown instead of John Brown that he killed, an acquittal would not be a bar to a prosecution for the killing of James Brown. If convicted and sent to the penitentiary, after serving his term he could be brought back and tried for the killing of James Brown. Section 10, Bill of Rights; 2 Bishop Crim. Procedure (4 ed.), Section 65; 1 Elliott on Evidence, Section 200; 4 Elliott on Evidence, Section 2714; Price v. State, 19 Ohio, 423; 1 Bishop Crim. Procedure (4 ed.), Section 683; 1 Archbold Cr. Pr. & PI. (8 ed.), 241; Griffin v. State, 14 Ohio St., 55; Moore v. State, 12 Ohio St., 387; Sykes v. People, 132 Ill., 32; McGary v. People, 45 N. Y., 153; Johnson v. State, 111 Ala., 66; State v. Gaffery, 12 La. An., 265; Rex v. Deeley, 1 Moody, 303; Hensley v. Commonwealth, 1 Bush, 11; State v. Taylor, 15 Kans., 420; Lewis v. State, 90 Ga., 95; People v. Hughes, 41 Cal., 234; Owens v. State, 20 S. W. Rep., 558; Humbard v. State, 21 Tex. App., 200.
    If it be claimed that failure to prove that the name “Frank McCormick” was an alias, and that Percy Stuckey was the true name of the deceased js merely a variance and is cured by the provisions of Section 7216, Revised Statutes, we will answer that in this case it is not a variance; it is a failure of proof, a total failure of proof.
    The purpose of Section 7216, Revised Statutes, is merely to cure any slight variance between the p'roof and the indictment; not to enable the state to charge a defendant with the homicide of one person, and then prove at the trial the homicide of another person. If such were the construction it would be clearly unconstitutional as it would be in conflict with Article I, Section 10, constitution.
    The. supreme court of Ohio has had occasion. to construe the provisions of Section 7216, to which we beg to call the court’s attention. Mead v. State, 26 Ohio St., 505; Pratt v. State, 35 Ohio St., 514; Barber v. State, 39 Ohio St., 660; State v. Johnson, 58 Ohio St., 417.
    
      Mr. H. H. Newell, prosecuting attorney, and Mr.- D. C. Parker, for defendant in error.
    It is claimed by the accused that this indictment does not charge murder in the first degree, murder in the second degree, neither does the same charge manslaughter, and if it charges anything, according to the motion of the accused, it charges shooting with intent to kill or wound.
    And as we take it the law is that where one is indicted for murder in the first degree, under the section, it necessarily follows that the indictment includes all of the other degrees of murder down to assault.
    Section 7215, Revised Statutes, provides, among other things, that certain matters may be left out of an indictment and still the same shall be a good indictment. Section 7217 provides what is necessary to set forth in an indictment for manslaughter.
    But we fail to find any rule laid down by the statutes defining what formal language shall be placed in . an indictment for murder' in the first degree.
    There is no question but that this indictment fully complies with the statute charging malice, deliberation and premeditation. The fault found with it by the accused is that it does not disclose the manner and means by which the crime was committed.
    The facts of the indictment are sufficient to notify the defendant fully what he would be expected to meet at his trial.
    We find no authority in Ohio from our reports, and there is but little light thrown on this kind of an indictment, but in looking over the textbooks we think there is law to fully maintain the allegations of this indictment. Wharton on Homicide, 837, 850-856; 21 Cyc., 846; McDonnall v. 
      People, 168 Ill., 93; Jones v. State, 35 Ind., 122; Territory v. Godas, 8 Mont., 347; Caldwell v. State, 28 Tex. App., 566; Adams v. State, 28 Fla., 511; State v. Florenza, 28 La. An., 945; Veatch v. State, 56 Ind., 584; Washington v. Yandell, 34 Wash., 409; State v. Cronin, 20 Wash., 512; Green v. State, 154 Ind., 655; State v. Silk, 145 Mo., 240; State v. Freeman, 1 Spears, 65; State v. Vaughn, 26 Mo., 29
    On this question as to the sufficiency of the indictment we also call the attention of the court to Lamberton v. State, 11 Ohio, 282; Rufer v. State, 25 Ohio St., 464; DuBrul v. State, 80 Ohio St., 52.
    We are satisfied that the indictment in the case at bar charges murder in the first degree.
    Further it is claimed by the accused that the indictment is defective because that while it charges an assault upon one Percy Stuckey alias Frank McCormick, the name Percy Stuckey nowhere again appears in the indictment, but the deceased is constant^ referred to as the said Frank McCormick.
    In the case at bar it is abundantly proven that the man killed was known to the accused as Frank McCormick, and it is clear that the indictment does apprise him of the fact that he is charged with killing Frank McCormick.
    The trial court in this case made no such finding of material variance under Section 7216, Revised Statutes, as would be prejudicial to the accused. Nor can we conceive of any possible prejudice that could afise to the accused from such variance, unless it be on the question as to former jeopardy in case of a future indictment and hearing. Mead v. State, 26 Ohio St., 505; Commonwealth v. Hunt, 4 Pick, 252; Walter v. People, 32 N. Y., 147; Commonwealth v. Randall, 4 Gray, 36; Rye v. State, 8 Tex. App, 163; State v. Craighead, 32 Mo, 561; Commonwealth v. Desmarteau, 16 Gray, 1; Pyke v. State, 47 Fla, 93, 36 So. Rep, 577; People v. Woods, 65 Cal, 121, 3 Pac. Rep., 466; People v. Lake, 110 N. Y., 61, 17 N. E. Rep., 146; 6 Am. St., 344; Morsee v. State, 83 S. W. Rep, 1117; Kennedy v. People, 39 N. Y., 245.
   Crew, J.

At the October term, 1908, of the court of common pleas of Wyandot county, the. grand jury of said county found and presented against James F. Goodlove, the plaintiff in error herein, a certain indictment of which the following is a copy:

“The State of Ohio, Wyandot County, ss.:
“In the court of common pleas, Wyandot county, Ohio, of the term of October, in the year of our Lord one thousand nine hundred.and eight.
“The jurors of the grand jury of the county of Wyandot and state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their said oaths, in the name and by the authority of the state of Ohio, do find and present that James F. Goodlove, late of said county, on the 6th day of August, in the year of our Lord one thousand nine hundred and eight, at the county of Wyandot aforesaid in and upon one Percy Stuckey, alias Frank McCormick, then and there being, did unlawfully, purposely, and of deliberate and premeditated malice, make an assault, in a menacing manner, with intent, him, the said Frank McCormick, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder; and that the said James F. Goodlove, a certain pistol then and there charged with gunpowder and leaden bullets, which said pistol he, the said James F. Goodlove, then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said Frank McCormick, with the intent aforesaid, and that the said James F. Good-love, with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said James F. Goodlove then and there discharged and shot off as aforesaid, him, the said Frank McCormick in and upon the upper right side of the back of him, the said Frank McCormick, then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, and wound, with the intent aforesaid, so as aforesaid discharged, and shot out of the pistol aforesaid, by the said James F. Goodlove, in and upon the upper right side of the back of him, the said Frank McCormick, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal wound he, the said Frank McCormick, then and there died: and so. the jurors aforesaid, upon their oaths and affirmations aforesaid, do say. that the raid James F. Goodlove him, the said Frank I.':cC:;r-mick in .the manner and by the names aforesaid, unlawfully, purposely, and of deliberate and premeditated malice, did kill and murder contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Ohio.
“H. H. Newell,
“Prosecuting Attorney, Wyandot county, Ohio.” .

The defendant, James F. Goodlove, being duly arraigned upon this indictment pleaded thereto not guilty. Thereafter and during said October term, 1908, the defendant was put upon trial upon said indictment and by the verdict of the jury was convicted of the crime of manslaughter. A motion for new trial was made and overruled and thereupon the defendant was sentenced by the court to imprisonment in the Ohio penitentiary at hard labor for the period of fifteen years. This judgment of the court of common pleas was affirmed hy the circuit court. To obtain a reversal of the judgments below James F. Goodlove now prosecutes error in this court. While the petition of plaintiff in error in this case contains numerous assignments of errors alleged to have occurred on the trial of this cause in the court of common pleas the only one of these assignments material to be noticed or considered in this opinion is the alleged error of the trial court in overruling the motion of defendant, made at the close of all the evidence, to direct the jury to return a verdict of not guilty, for if this claim of error be resolved in favor of the accused, as upon this record we are of opinion it must be, it is necessarily fatal and the. other errors assigned become wholly imm'aterial. That in every indictment for injury to the person the law imperatively requires that the name of the injured party shall, if known, be stated, is too well settled to admit of controversy, and it follows therefrom as d logical and necessary sequence that the name of the person injured, if known, being indispensable matter of allegation is essential matter of proof and when stated must be proved as laid unless such proof is excused by statute. The indictment in the present case charged the accused, James F. Goodlove, with having assaulted and killed one “Percy Stuckey, alias Frank McCormick.” Plehce, under the charge so made the name of the party assaulted becomes and ¡ is essential matter'of description and identification, and to warrant conviction upon such charge it was incumbent upon the prosecution to establish by the evidence beyond a reasonable doubt that the person assaulted and killed was in fact Percy Stuckey. This indictment1 does not charge, nor was it intended thereby to charge, that James F. Good-love assaulted and killed both Percy Stuckey and Frank’ McCormick, but the charge is that he assaulted and killed one Percy Stuckey, called, or otherwise known as Frank McCormick. The names therein mentioned were intended to be and are, but different designations or descriptions of the same person, namely, Percy Stuckey, and the rule being well settled that no allegation in an indictment descriptive of that which is essential to the charge can be disregarded or rejected, the crime thus charged in this indictment is not made out or established by proof only that the accused assaulted and killed one Frank McCormick, there being no evidence whatever to show that said Frank McCormick and Percy Stuckey were one and the same person. In the case now before us not only is there a total absence of evidence that Percy Stuckey and Frank McCormick were one and the same person, but there is not in this case from beginning to end a scintilla of evidence even tending to show, or that would suggest, that any such person as Percy Stuckey ever had an existence. There was, therefore, in this case a total failure of proof as to an essential allegation and material part of the offense charged in the indictment, and such defect not being one of mere variance that is excused” or rendered harmless'by the curative provisions of Section 7216, Revised Statutes, it was and is necessarily fatal and the motion to direct a verdict in this case should have been sustained. The conclusion reached by us finds abundant support in the reasoning of the authorities cited in the briefs of counsel.

Judgments of the circuit court and of the court of common pleas reversed, and plaintiff in error discharged.

Summers, C. J., Davis, Shauck and Price, JJ., concur.  