29-1502. Variance in name or description; effect.

Whenever on trial of any indictment for any offense there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof in the given name or surname, or both given name and surname, or other description whatever of any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.

Source

Annotations

1. Sufficiency of complaint

2. Fatal variance

1. Sufficiency of complaint

Information charged offenses in language of statute; reference to complaining witnesses as three teenage girls, without using their names did not deceive, mislead, nor prejudice defendants in any particular. Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).

In prosecution for sodomy amendments to information as to name of complaining witness and as to date of crime, time not being an ingredient, were not prejudicial. Sledge v. State, 142 Neb. 350, 6 N.W.2d 76 (1942).

Immaterial variance between purported maker's name as set out in information charging forgery and as it appeared in note offered in evidence was not ground for reversal. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).

"Adolph" and "Adolf" are idem sonans, when both are used as Christian names in information. Bunge v. State, 87 Neb. 557, 127 N.W. 899 (1910).

In prosecution for malicious killing of animals, difference between information and proof as to number of animals killed and date of killing was not a fatal variance. Carson v. State, 80 Neb. 619, 114 N.W. 938 (1908).

On charge of forgery of receipt which referred to and incorporated another instrument, both must be set forth correctly. Sutton v. State, 58 Neb. 567, 79 N.W. 154 (1899).

Where time is not an ingredient of the crime, variance in proof is not fatal, if within statute of limitations. Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894).

There was no variance between information charging crime was committed with bludgeon and proof showing club or bolt. Long v. State, 23 Neb. 33, 36 N.W. 310 (1888).

2. Fatal variance

Variance in names to be fatal must be such as to be material to merits of case or prejudicial to defendant. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927); Goldsberry v. State, 66 Neb. 312, 92 N.W. 906 (1902).

There was a fatal variance where information charged false entry in an account of an individual with bank, and proof showed account with person as public official. Williams v. State, 51 Neb. 630, 71 N.W. 313 (1897).

In prosecution for perjury, variance between information and proof as to name of witness was fatal. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).

Where information charged obtaining money by false pretenses through use of draft, there was a fatal variance where instrument offered in evidence was not payable in money. Prehm v. State, 22 Neb. 673, 36 N.W. 295 (1888).

On indictment for forging of note, there was a fatal variance where information charged interest was payable semiannually and note offered in evidence called for interest payable annually. Haslip v. State, 10 Neb. 590, 7 N.W. 331 (1880).