Page:Stewart v. State.pdf/17

Rh disregard. It is true a fair and reasonable interpretation must be given to it, and not a strained and literal construction, which would encourage frivolous objections. Upon the facts stated in regard to this exception, the question is whether a list of the jurors was furnished to the prisoner. The only part of the exception entitled to consideration is that relating to ihe juror, Newton A. Ewing. His name was put down in the list furnished to the prisoner as William A. Ewing. That list is designed to be the guide of the prisoner. If the sheriff, in his return to the venire, should make a mistake as to the name of any juror smnmoned to be of the panel, but in the list furnished the prisoner should describe such juror by his true name, the prisoner would have no cause to complain, or right to object for the variance. Because the return is under the direction of the court, and, according as the fact may be, susceptible of amendment, but without his consent a mistake, which the law would regard as prejudicial to the prisoner in the list furnished him, can only be obviated by serving him with a new list. Upon this record, it seems to be conceded that the proper name of the juror in question was Newton A. Ewing; and the true inquiry is, whether the variance was one calculated to deceive or mislead the prisoner. Although the variance is a material one, we may suppose that, in point of fact, the prisoner was not prejudiced by it. When the mistake was brought to the notice of the court, the utmost fairness was manifested toward him by the attorney for the State and the court. His knowledge of the variance appears to have been derived from a reference to the return of the sheriff upon the venire, and in a subsequent portion of that return, as amended, the variance is explained. So that upon a motion for new trial in the court below, or if the cause came up on error from the decision of that court in overruling the motion for new trial, there are abundant authorities for refusing to disturb the verdict. But such is not the case. The prisoner made the objection upon the calling of the cause for trial, and before the jury were empannelled. The question comes up on a strict construction in point of law, which the prisoner did not waive by any application for new trial