The question whether jurors are indifferent is one of fact for the trial term, and is not reviewable when determined upon sufficient evidence. In the trial of an indictment for felonious assault, a juror is not disqualified as matter of law by reason of service in a similar prosecution against another respondent. A record of birth in which the surname is spelled "Menter" may be admitted in evidence to prove the age of a person whose name is set out in an indictment as "Manter"; and the question whether the names are idem sonans is one of fact for the jury. A supper ticket which is shown to truly state the date of the occasion for which it was issued is competent evidence to fix the date of an offence committed on a certain day prior thereto. In a criminal prosecution, the respondent may be found guilty upon evidence that the offence was committed on any day prior to the finding of the indictment and within the time prescribed by the statute of limitations.
WALLACE, J.
Whether the jurors were indifferent was a question of fact to be determined at the trial term. State v. Pike, 49 N.H. 399, 406; State v. Jones, 50 N.H. 369, 381; State v. Sawtelle, 66 N.H. 488. The court having found they were indifferent, upon evidence which warranted that conclusion, the finding will not be revised. The fact that some of the jurors had sat in a similar case against another person was no disqualification.
The record of the birth of a child whose name was spelled "Menter" was properly admitted to show the age of the child upon whom the assault was alleged to have been committed, and whose name was set out in the indictment as "Manter." Absolute accuracy in spelling names is not necessary in legal proceedings. Difference in the mode of spelling names does not necessarily show a variance. It is a question of fact whether the name proved and the one alleged are idem sonans. It was for the jury to determine, from the evidence of the record, and the testimony of the child that her name should be spelled "Menter," whether she was the person referred to in the record, and also whether the name in the record had the same sound as that alleged in the indictment. Tibbets v. Kiah, 2 N.H. 557; Melvin v. Marshall, 22 N.H. 379; Commonwealth v. Gill, 14 Gray 400; Commonwealth v. Donovan, 13 Allen 571; Commonwealth v. Jennings, 121 Mass. 47; Commonwealth. v. Warren, 143 Mass. 568.
The date upon the ticket to the deer supper, taken in connection with the evidence that it truly stated the date of the supper and that the assault was on the Friday before that day, would aid the jury in determining the date of the assault, and was competent evidence on that question.
The instruction to the jury, that if they found the respondent committed the assault on any day before the finding of the indictment and within two years he was guilty of the offence charged, was sufficiently favorable to him. It is not necessary to prove the precise day on which the crime was committed in a case like this, where time is not an essential and material element. It is sufficient to show that the offence was committed before the indictment was found and within the period of limitation, when any time is limited. State v. Rundlett, 33 N.H. 70; State v. Havey, 58 N.H. 377; 1 Bish. Cr. Pr., s. 400; Heard Cr. Pl., s. 91.
Exceptions overruled.
PEASLEE, J., did not sit: the others concurred.