§ 119. General Rule of Criminal Pleading Stated.--It is a general rule of criminal pleading that material allegations must be proved, and that if an allegation need not be proved, it is not material. State v. Porter, 38 Ark. 637. The proof must always correspond with the charge in the indictment (United States v. Darton, 6 McLean, 46) even though the offense is set out with greater particularity than is required; nothing connected with the offense can be disregarded as surplusage. United States v. Brown, 3 McLean, 233. Where an offense is susceptible of commission in more than one way, it must be proved to have been committed in the particular way charged, and in no other way. Kennedy v. State, 9 Tex. App. 399. The precise offense charged, and no other, must be proved. Rapalje, Crim. Proc. § 107.

§ 120. Illustrations of these Rules.-A distinction obtains as to those variances occasioned by the proof and the context or recitals of an enactment or even of a contract. Variance under such conditions must be regarded as fatal. Butler v. State, 3 McCord, L. 383.

Where the prosecutor states the offense with greater particularity than he is bound to do, the proof must correspond with the averments. That cannot be regarded as surplusage, which is connected with the offense. United States v. Brown, 3 McLean, 233.

Thus, in an indictment charging the defendant with having in his custody and possession, with intent to sell the same, "one pint of adulterated milk, to which milk water had been added," the allegation is descriptive, and is not supported by proof that the milk in question was adulterated by adding water to pure milk. Com. v. Luscomb, 130 Mass. 42.

The rules of pleading are the same in civil as in criminal actions. In Jerome v. Whitney, 7 Johns. 321, the court held that if the plaintiff in his declaration on a note for value received, instead of stating generally that it was given for value received, sets forth specially in what the value received consisted, he is bound to prove the particular value according to the averment, and the general knowledge of value in the note is not sufficient to support the declaration. So in United States v. Porter, 3 Day, 283, it was held, that where in an indictment for stopping the mail, the contract of the carrier of the mail with the postoffice department, was set out, it must be proved. And where an indictment for burglary

in the house of J. D. with intent to steal the goods of J. W. it appearing that J. W. had no property there, it was held material to state truly in whom the property of the goods was.

In 1 Chitty, Pl. 263, it is said, That if however the matter unnecessarily stated be wholly foreign and irrelevant to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage. If the prosecutor choose to state the offense with greater particularity than is required by the statute, he will be bound by the statement, and must prove it as laid. Rex v. Dawlin, 5 T. R. 311; United States v. Brown, 3 McLean, 233.

§ 121. Only Material Variance will be Regarded.-A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Abbott, Trial Brief, 680.

This entire subject of variance has received direct illumination from a recent decision of the New York court of appeals. Mr. Justice Earl, writing for affirmance and voicing the unanimous opinion of his associates says: "It is also claimed that there was a false variance between the indictment and the proof, in that the indictment alleges that Harris swore before the fire marshall that there were 60,000 cigars in the building at the time of the fire, whereas the proof showed that he swore that there were 65,000. This objection was in no form made at the trial, and therefore cannot avail here. If it had been made, the evidence as to that item could have been excluded or waived, or the judge could have instructed the jury to disregard the evidence and that there would have been still enough to uphold a conviction. The variance was as to the one of a number of distinct items as to which Harris was charged with swearing falsely, and if the jury had found that he swore falsely as to the other items, or as to any one of them, a verdict of guilty would have been proper. Where an indictment charges that the prisoner has stolen a number of articles, or has inflicted a number of blows, or has obtained goods by a number of false pretenses, or has sworn falsely in an affidavit as to several facts, it is not necessary to prove all that is charged. It is sufficient to prove enough to make out the offense charged. 3 Russell, Crimes (4th London ed.) 105; Reg. v. Rhodes, 2 Ld. Raym. 886; 3 Starkie, Ev. 860; Tomlinson's Case, 4 City Hall Rec. 125; Roscoe, Crim. Ev. (6th Am. ed.) 763.

"The strictness of the ancient rule as to variance between the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put injeopardy for the same offense." Harris v. People, 64 N. Y. 148.

122. When Variance between Indictment and Proof will Call for Amendment.-If there be a variance between the indictment and the evidence brought forward to sustain it, the courts, on application, will amend the indictment, as in the following instances: where the variance is in the setting out of any matter in writing, or in print, or in the name of any county, city, town, parish, etc., or in the name of the owner of any property which is the subject of the indictment, or in the name of any person injured, or intended so to be, by the offense charged, or in the name of any person mentioned in the indictment, or in the "name or description of any matter or thing whatsoever therein named or described," or in the ownership of property therein named or described.

But there are some cases of variance where an amendment is not necessary. Upon an indictment for embezzlement, if the evidence prove a larceny, the jury may acquit the prisoner of the embezzlement and find him guilty of simple larceny, upon an indictment for obtaining goods or money under false pretenses; if the evidence prove a larceny, the defendant, notwithstanding, may be convicted of false pretenses; upon an indictment for a misdemeanor, if the evidence prove a felony, the defendant shall not, on that account, be acquitted, unless the court think proper to discharge him from that indictment, and order him to be prosecuted for the felony. Archb. Crim. Pr. & Pl. 124.

123. The Doctrine of Idem Sonans Stated.-There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common law technicalities, and hold rather to substance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem sonans has been much enlarged by modern decisions, to conform to the above salutary rule. The law does not treat every slight variance, if trivial, such as the omission of a letter in the name, as

fatal. The variance should be a substantial and material one to be fatal. Harris, Identification, § 139; Trimble v. State, 4 Blackf. 435; Stevens v. Stebbins, 4 Ill. 25.

Courts are not fastidious in enforcing absolute precision in regard to orthography. Names admitting of the same pronunciation are often made up of very different letters. In these cases, a mistake of one mode of spelling for another is unimportant, even in an indictment. The public prosecutor is not bound to ascertain the particular letters used by the accused in writing his name, for this might often be impracticable. But where the orthography of the indictment composes a name which by the ordinary rules of pronunciation produces a different sound from the true one, the mistake will be fatal.

The doctrine of idem sonans is too well established to be disregarded. If the name as laid in the indictment, and the name proven on the trial, were of the same sound, then there is not a fatal variance, although the two names may have been spelled slightly different. Donnel v. United States, 1 Morris (Iowa) 141, 39 Am. Dec. 457; Parchman v. State, 2 Tex. App. 228; Schooler v Asherst, 1 Litt. (Ky.) 216; Barnes v. People, 18 Ill. 52; Rex v. Tannett, Russ. & R. 351; Rex v. Shakespeare, 10 East, 83; Com. v. Gillespie, 7 Serg. & R. 479; Swails v. State, 7 Blackf.

324.

$124. Instances of Immaterial Variance in Name.-It is held to be an immaterial variance where the words may be sounded alike, without disturbing the power of the letters found in the variant orthography. Adams v. State, 67 Ala. 89. See Rice, Annotated Colo. Code, Civ. Proc. title Idem Sonans.

In a recent Texas case Judge Willson says: "Hix Nowels" and "Hicks Nowells" are idem sonans, and the court did not err in its charge to the jury in disregarding the difference in the orthography of the name, and in omitting to submit to the jury for their determination whether or not the name as spelled in the indictment was the same as that proved on the trial. There was no room for doubt upon this question, and the court might well assume that the names were identical. If there had been any doubt as to whether the names were idem sonans, it would have been proper, and perhaps essential, to have submitted the question to the jury. Henry v. State, 7 Tex. App. 388; Spoonemore v. State, 25 Tex. App. 358.

The law does not treat every slight and trivial variance, such as the omission of a letter, as fatal. The variance should be a substantial and material one, such as would render the instrument offered in evidence a different and distinct instrument from the one described in the petition, to authorize the court to exclude it from the jury on the ground of variance. The rule of idem sonans, when strictly adhered to, is considered too rigid, and has been much relaxed in modern practice. Stevens v. Stebbins, 4 Ill. 25.

It is claimed that mere identity of sound is a surer method of designating the names of persons than that of depending upen mere identity in the orthography. Ahitbol v. Beniditto, 2 Taunt. 401; Myer v. Fegaly, 39 Pa. 429.

If the sound of a name idem sonans be not affected by a misspelling which occurs, such error is immaterial, and any two names being alike in original derivation and used interchangably, though different in sound, do not, by the use of either, constitute a material variance. 2 Rolle, Abr. 135; Bacon, Abr. title Misnomer. The doctrine of idem sonans should not be too rigidly enforced. The principal question in all cases should ask as to the materiality of the variance. Belton v. Fisher, 44 Ill. 32. And this is always a question of fact, to be determined by the jury. In the case of foreign names, courts are reluctant to pronounce that a variance which in most instances is a simple misspelling, or the result of a mispronunciation shall affect vested rights honestly acquired. In an early case the supreme court of Illinois has held, where material variance was claimed in the names of a conveyance that Michael Allen, named in a deed as grantor was, presumptively, Michael Allaine, grantee of the same property as, also, that Otoine Allaine was, presumptively, Antoine Allaine. Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148.

The misspelling of a defendant's name in a summons is no excuse for non-appearance to defend, especially where it appears that the name "Butler" was written "Bulter." Knowing there is a suit against himself, defendant is held bound to appear. Hermann v. Butler, 59 Ill. 225.

The rule is, that if the distinction in the pronunciation of the names is indistinguishable in ordinary conversation, the doctrine of idem sonans applies. Barnes v. People, 18 Ill. 52. The position contended for is sustained by a Maine decision which holds