People v. Cummings

California Supreme Court Jul 1, 1880 No. No. 10,524Published

Before: Sharpstein

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Holding. The court held that minor spelling variances in a forged document do not constitute a material variance if the word's meaning remains clear, and that allowing a jury to take refused instructions into deliberations is error but not reversible if it does not prejudice the defendant.

Issues

Whether spelling variances between a forged document and its copy constitute a material variance.
Whether the trial court erred in allowing the jury to take refused instructions into the deliberation room.
Whether the defendant demonstrated sufficient diligence to warrant a new trial based on newly discovered evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule appears to be, that where a word is so misspelled as to preclude the possibility of its being mistaken for any other word in the English language, the import of it is a proper question for the jury to pass upon.”

Synopsis

Vabiaitce.—In the copy of the forged instrument set forth in an indictment for forgery, a word was spelled shipped, and in the instrument offered in evidence as the original, the same word is spelled shiped. Held, that the variance was not such as to exclude the instrument from the jury.

In.—The rule in such cases appears to be, that where the word is so misspelled as to preclude the possibility of its being mistaken for any other word in the English language, the import of it is a proper question for the jury to pass upon.

Juby Tbial—Instbuctioks—Pbactice—Immatbbial Ebbob.—It is error to allow the jury to take with them instructions refused by the Court; but a party cannot complain of the error, if the instructions be those asked by himself.

Sharpstein, J.: The evidence in this case tends to prove that the defendant, about the 1st of October, 1878, went to one Asa Eisk, at San Francisco, and asked him to advance $300 to pay the balance due on a purchase of ten tons of broom-corn, by the defendant, of Hong Po & Co. of Marysville, as evidenced by their bill of sale to him. Fisk declined to advance the sum applied for, without an absolute transfer of the property to him by the defendant; and thereupon he signed a certificate on the back of [89]the bill of sale of the broom-corn from Hong Po & Co. to him, to the effect that he had sold said broom-corn to Fisk. Fisk deposited with Wells, Fargo & Co. $300, to be paid Hong Po & Co. upon presentation by them to the agent of Wells, Fargo & Co. of a bill of lading, stating that ten tons of broom-corn had been shipped to Fisk by San Joaquin steamer, Captain Dwyer.

It is charged in the indictment, that the defendant, with intent to obtain the money which Fisk had given to Wells, Fargo & Co. to pay the balance due upon said broom-corn upon the conditions above stated, forged a receipt in writing, of which the following is a copy:

“ Mohan’s Ferry, October 5th, 1878.

“ Received of Hong Po & Co. (10) ten tons of broom-corn, all in good order, to be shipped to A. Fisk, San Francisco, said Fisk to pay freight. I will take said corn on my next trip.

“P. Dwyer, Captain.”

An instrument was offered in evidence, as the original of the foregoing, and its introduction was objected to, on the ground that some of the words were not spelled alike in the copy and the original. In the latter, the word “ shipped ” is spelt “ shiped,” and the word “ said,” “ saide ”; but we are unable to discover that ferry is spelt “ ferrey,” as specified in the objection. The objection was overruled, and the defendant excepted. Under the familiar rule as to idem sonans, the variance between ferrey and ferry or saide and said is immaterial; but we are not aware of any rule of pronunciation by which shiped could be pronounced shipped, and yet the variance between them is no greater than it is between undertood and understood, which Lord Mansfield held to be immaterial. (Rex v. Beach, 1 Leach, 158.) The rule appears to be, that where a word is so misspelled as to preclude the possibility of its being mistaken for any other word in the English language, the import of it is a proper question for the jury to pass upon. (Rex v. Hart, 1 Leach, 172.) The ruling of the Court seems to have been in accordance with this rule, and it follows, that the exception to that ruling is not well taken.

People v. Cummings

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