Davenport v. State

Warner, J.

It is a general rule in the trial of criminal cases, that the material allegations in the indictment must be substantially proved, as charged therein. Upon looking into the indictment in this case, we find that the defendant is charged with having committed a riot with one Land, and also with one Lance; that is to say, the name of one of the defendants is spelt “Land” in one part of the indictment, and “Lance” in another. It is insisted that, in as much as the defendant, Davenport, was charged with having committed a riot with one Land, and the evidence showed upon the trial that his name was Lance, the variance was fatal, and the defendant should have been acquitted, and that the Court below erred in not granting a new trial in the case upon that, as well as the other grounds stated in the record. It appears that the defendant, Wm. Lance, was arraigned upon the aforesaid indictment, and plead “guilty” without raising any objection as to the name by which he was indicted. The defendant, Davenport, when arraigned, plead “not guilty,” without raising any objection to the form of the indictment, or the name of the party with whom he was accused of having committed the riot. There is no doubt of the identity of the man who was engaged in the riot with the defendant, whether he was called by the name of Land, or Lance, and as his name is spelt both ways in the indictment, the verdict was right under the evidence. It is not the policy of our law, as manifested by the Code, to shield defendants from punishment for violations thereof, upon mere technical grounds alone, when the substantial rules of the law have been complied with.

It was contended, in this ease, that under the evidence, the defendant was guilty of an assault and battery, and not a riot. The 4441st section of the Code declares, “If any two or more persons, either with or without a common cause- of quarrel, do an unlawful act of violence, or any other act in a violent and tumultuous manner, such persons so offending, shall be guilty of a riot.” We think the evidence in the record brings the defendant within this provision of the Code, and that there was no error in the Court below in refusing the new trial upon any of the grounds taken therefor. Let the judgment of the Court below be affirmed.