State v. Perkins ( 1900 )

Whether the jurors were indifferent was a question of fact to be determined at the trial term. State v. Pike, 49 N.H. 399, 406; State v. Jones, 50 N.H. 369, 381; State v. Sawtelle, 66 N.H. 488. The court having found they were indifferent, upon evidence which warranted that conclusion, the finding will not be revised. The fact that some of the jurors had sat in a similar case against another person was no disqualification.

The record of the birth of a child whose name was spelled "Menter" was properly admitted to show the age of the child upon whom the assault was alleged to have been committed, and whose name was set out in the indictment as "Manter." Absolute accuracy in spelling names is not necessary in legal proceedings. Difference in the mode of spelling names does not necessarily show a variance. It is a question of fact whether the name proved and the one alleged are idem sonans. It was for the jury to determine, from the evidence of the record, and the testimony of the child that her name should be spelled "Menter," whether she was the person referred to in the record, and also whether the name in the record had the same sound as that alleged in the indictment. Tibbets v. Kiah, 2 N.H. 557; Melvin v. Marshall, 22 N.H. 379; Commonwealth v. Gill, 14 Gray 400; Commonwealth v. Donovan, 13 Allen 571; Commonwealth v. Jennings,121 Mass. 47; Commonwealth. v. Warren, 143 Mass. 568.

The date upon the ticket to the deer supper, taken in connection with the evidence that it truly stated the date of the supper and that the assault was on the Friday before that day, would aid the jury in determining the date of the assault, and was competent evidence on that question.

The instruction to the jury, that if they found the respondent committed the assault on any day before the finding of the indictment and within two years he was guilty of the offence charged, was sufficiently favorable to him. It is not necessary to prove the precise day on which the crime was committed in a case like this, where time is not an essential and material element. It is sufficient to show that the offence was committed before the indictment was found and within the period of limitation, when any time is limited. State v. Rundlett, 33 N.H. 70; State v. Havey, 58 N.H. 377; 1 Bish. Cr. Pr., s. 400; Heard Cr. Pl., s. 91.

Exceptions overruled.

PEASLEE, J., did not sit: the others concurred.