that, although the surname of a party defendant has been spelled in seven different ways in the course of a judicial proceeding, the names were all idem sonans and sufficiently identified the defendant. Millett v. Blake, 81 Me. 531. § 125. Extended Tabulation of the Cases from Rapalje's Criminal Procedure.-Mr. Rapalje in his well known work on Criminal Procedure at Section 83, tabulates a series of cases that have been decided upon this interesting topic. The section is reproduced in this connection as affording by far the most luminous exposition of this subject to be found in any of the text-books early or late. The rule as to the materiality of variances between the name as stated in the indictment and as proved on the trial, is that the mere misspelling of a name, whether of the accused or of a third person, is not fatal to the indictment, unless the difference causes a material change in the pronunciation of the name; whether it does or not is, on the trial of the general issue, a question for the jury and not for the court (Underwood v. State, 72 Ala. 220. But see as to the last point, Com. v. Riggs, 14 Gray, 376, 77 Am. Dec. 333) or where the court does pass upon it, a stringent construction will not be applied. Foster v. State, 1 Tex. App. 531. Thus "Mary Etta" is idem sonans with "Marietta," Goode v. State, 2 Tex. App. 520; "Hutson" with "Herdson," State v. Hutson, 15 Mo. 512 (a strange conclusion); "Owens D. Havely" with "Owen D. Haverly," State v. Havely, 21 Mo. 498; "Blankenship" with "Blackenship," State v. Blankenship, 21 Mo. 504 (one judge dissenting); "George Washington Bank” with “Geo. Washington Bank,” Patterson v. People, 12 Hun, 137; "Chin Chan" with "Chin Chang," Wells v. State, 4 Tex. App. 20; and "McLaughlin" with "McGlofin," McLaughlin v. State, 52 Ind. 476. On the other hand, the following among others have been held not to be idem sonans: "Spintz" and "Sprintz," United States v. Spintz, 18 Fed. Rep. 377; "Clements Turner" and "Turner Clements," Clements v. State, 21 Tex. App. 258; "Tarpley" and "Tapley," Tarpley v. State, 79 Ala. 271; "Kinney" and "McKinney,” Kinney v. State, 21 Tex. App. 348; "Donald" and "Donnell," Donnell v. United States, 1 Morris (Iowa) 141, 39 Am. Dec. 457; "Mincher" and "Minshen," Adams v. State, 67 Ala. 89; "Abie Burgamy" and "Avie Burgamy," Burgamy v. State, 4 Tex. App. 572; and "Wood" and "Woods," Neiderluck v. State, 21 Tex. App. 320. Some of these decisions are unsatisfactory, notably a North Carolina case, where "Willis Fain" was held to be idem sonans with "Willie Fanes," State v. Hare, 95 N. C. 682; but no doubt "Chatam Bank" is idem sonans with "Chatham Bank." Roth v. State, 10 Tex. App. 27. Where the name "George J. Farley" appeared four times in an indictment which went on to allege an intent to kill said "Frank I. Farley," it was held proper to instruct the jury that if this was clearly a clerical error and not prejudicial to the accused, it was not a fatal variance. State v. McCunniff, 70 Iowa, 217; State v. Ford, 38 La. Ann. 797. So, where on the separate trial of one for a joint offense with one "Land," it appeared the latter's name was "Lance," but there was no doubt as to his identity, the variance was deemed immaterial. Davenport v. State, 38 Ga. 184. But where an indictment gave the name of the injured person as "McKasky," "McKlaskey," and "McKloskey," and the proof showed its proper spelling to be "McCoskey," the conviction was set aside. Black v. State, 57 Ind. 109. So an indictment charging a trespass upon land in possession of A, is not supported by proof of a trespass upon land in possession of B. State v. Sherrill, 81 N. C. 550. And a charge that an affidavit was sworn to by J. N. P. is not supported by proof that J. P. signed it. Pickens v. State, 6 Ohio, 274. But a misnomer is fatal only when it is of a party whose existence is essential to the offense charged. United States v. Howard, 3 Sumn. 12. 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. Citing inter alia Earl, J., in Harris v. People, 64 N. Y. 148. CHAPTER XXI. VIEWING THE PREMISES. § 126. View Regulating the Statute. 128. New York Code Provisions. 129. The Views of the New York Supreme Court. § 126. View Regulated by Statute.-In criminal cases it appears that the jury are not permitted to view the premises where the crime was alleged to have been committed, unless it is authorized by statute. It was not permitted by the common law, because the jury could not or should not act on the case except upon information received by the evidence given in court. The question was presented in a murder trial in Massachusetts in 1839, and it was refused, though moved for by the prisoner and and consented to by the attorney general. But on the second trial of the same case, the jury made the request that they be permitted to see the place of the murder, and both parties consented, and the court hesitated, but finally granted the request, "Because," the court said, "this course was without precedent, and if it should turn out to be incorrect, they had doubts whether they could hold the prisoner to his consent." And in this case, the court directed that no person should go with the jury except the officers having them in charge, and that no person should speak to them under penalty of a contempt. Plans were exhibited and explained to the jury in court, and they were permitted to take them with them to aid them in making the view. Harris, Identification, § 581; Com. v. Knapp, 9 Pick. 515, 20 Am. Dec. 491. See Mass. Rev. Stat. chap. 137, § 10. The rule still holds that in criminal trials a view of the premises will seldom be permitted in the absence of statutory enactment authorizing it. § 127. Theory of Mr. Wharton. Mr. Wharton says: "The practice which obtains in civil suits, in permitting the jury to visit the scene of the res gesta is adopted in criminal issues whenever such a visit appears to the court important for the elucidation of the evidence. The visit, however, should be jealously guarded, so as to exclude interference by third parties, and should be made under sworn officers. Such view may be granted after the judge has summed up the case. But where only a part of the jury visited the premises, and this after the case was committed to the jury for their final deliberation, this was held ground for a new trial. The visit also must be made in the presence of the accused, who is entitled to have all evidence received by the jury, taken in his presence." 3 Whart. Am. Crim. Law (7th ed.) p. 151, § 3160. § 128. New York Code Provisions.-When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. The officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time. Cook's N. Y. Code, Crim. Proc. §§ 411, 412, citing Abbott, Trial Brief, 72-74, 26 Cent. L. J. 436; People v. Johnson, 110 N. Y. 143, 46 Hun, 673; People v. Buddensiek, 103 N. Y. 501, 57 Am. Rep. 766; People v. Oyer & Terminer, 36 Hun, 279, 3 N. Y. Crim. Rep. 215; People v. Tyrrell, 3 N. Y. Crim. Rep. 142; People v. Palmer, 43 Hun, 407, 5 N. Y. Crim. Rep. 106, disapproving Shular v. State, 105 Ind. 289, 55 Am. Rep. 211. § 129. The Views of the New York Supreme Court.-The vigorous contention that has serged around a very recent case admonishes me to illustrate this topic by a careful reference to what that case decides. The defendant had been indicted for an assault, and the substance of the charge was, that he had shot at and wounded one Ira Gray, at a saloon in the town of Catskill, N. Y. The trial was before the Green county oyer and terminer, and upon the application of the defendant's counsel, the county judge decided to allow a view of the premises by the jury, the judge and two officers of the court; but refused to allow the defendant or his counsel to accompany them. To this extraordinary ruling, the defendant's counsel naturally excepted. On a review had in the general term, the opinion written by the presiding justice states the conclusions of the court in language that is apt to crystallize itself as the law governing such cases for the future. In view of the importance of this subject and the frequency with which the jury are asked to inspect the premises where crime is alleged to have been committed, I shall make an extended quotation from the opinion which was concurred in by Judge Bockes. The case will be found reported in 43 Hun, 397, under the title of People v. Palmer: "Was evidence given to the jury in this case, in the absence of the prisoner? One member of the court and two officers, went out from the court room. The two other members of the court and the prisoner and his counsel remained. The prisoner asked to accompany the jury, but this was refused. On returning, the member of the court who had gone with them stated that the jury had been up to the saloon; that the jury had not been allowed to communicate with one another, or hold any conversation with any person outside. "The view of the place was itself evidence. It might be very important for the jury to know the size of the room. For instance, the defendant might have testified that the room was not more than ten feet long, and that the complainant, standing at one end, had struck with a stick the defendant, standing at the other. The jury may have been shown a room twenty feet long. And the length of the room would tend to discredit defendant's testimony, and would be material evidence whether the affray arose as defendant claimed. "It is not an answer to this argument to say that there could be no doubt as to the size of the room by those who were allowed to see it; because the principle is not that no evidence, true or false, shall be so given. Hence, if the size and appearance of the room tends in any way to bear upon the question of the defendant's guilt or innocence, it is evidence, and must not be given to the jury in his absence. Bullet holes and splashes of blood might be in the room, and their position might wear strongly on the guilt or innocence of the prisoner. In this very case importance seems to have been attributed to the existence, or non-existence, of a bullet hole at a certain place in the room. If it would have been evidence to testify that there was such a bullet hole, then it was giving evidence to show to the jury the bullet hole itself. "But again, either by words, or by gestures, or by the mere fact |