Ohio Revised Code

Ohio Rev. Code § 2941.26 (2026)

Variance between indictment and evidence

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Effective:

October 1, 1953

Latest Legislation:

House Bill 1 - 100th General Assembly

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When, on the trial of an indictment or information, there appears to be a variance between the statement in such indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or other description of a person therein named or described, or in the name or description of a matter or thing therein named or described, such variance is not ground for an acquittal of the defendant unless the court before which the trial is had finds that such variance is material to the merits of the case or may be prejudicial to the defendant.

Notes of Decisions

Cited in 6 cases, 1956–2013 · leading case: State v. Moten, 2012-Ohio-6046.

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State v. Moten, 2012-Ohio-6046. · cites it 2× “33(E)(2) is consistent with R.C. 2941.26, which provides that a variance between an indictment and the evidence offered in proof thereof “in the name or description of a matter or thing therein named or described” is not a ground for acquittal unless the court finds “that such…”

State v. Lewis, 257 N.E.2d 59 (Ohio 1970). · cites it 2× “222 , which construed what is now Section 2941.26, Revised Code. That statute states in part that a “variance is not ground for an acquittal * * * unless such variance is material to the merits of the case or may be prejudicial to the defendant.”

State v. Bryant, 2012-Ohio-3909. “{¶19} Generally, if specific times and dates are not essential elements of a charged offense, the omission of specific dates and times in an indictment or bill of 6 OHIO FIRST DISTRICT COURT OF APPEALS particulars or the stating of the time “imperfectly” is without prejudice or…”

State v. Harper, 2013-Ohio-3897. “THE TRIAL COURT COMMITTED ERROR IN FAILING TO ACKNOWLEDGE THE APPELLANT-DEFENDANT’S PRESENTATION OF A PARTICULARIZED NEED FOR THE GRAND JURY TRANSCRIPTS PURSUANT TO O.R.C. 2941.26.” Pro se Appellants {¶15} We understand that Harper has filed this appeal pro se.”

State v. Porcaro, 141 N.E.2d 482 (Ohio Ct. App. 1956). · cites it 2× “30, Revised Code), is in pari materia with Section 13437-25, General Code (Section 2941.26, Revised Code). This latter section modifies the common-law rule relating to variance, and in construing this section, the courts appear to establish the rule that unless the variance is…”

State v. Smith, 159 N.E.2d 248 (Ohio Ct. App. 1958). “The question of variance is set forth clearly by statute in Ohio in §2941.26 R. C. A variance must be material to the merits or prejudicial to the defendant.”

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