We pause to acknowledge our distaste for undoing the conviction of a defendant twice found guilty of forgery, whose actions undoubtedly violated numerous fraud and embezzlement statutes, and whose conduct before the district court included the brazen fabrication of evidence and attempted bribery of a witness. It is our unhappy duty, however, to reverse the conviction of any defendant charged under the wrong statute. As the Nebraska Supreme Court noted in one of the leading common-law forgery cases, "even a knave is protected in prosecutions under legislative enhancements authorizing punishments for different species of fraudulent acts such as forgery, obtaining money by false pretenses, larceny and embezzlement." Goucher, 204 N.W. at 968. It found, as we do: "There is no escape from this conclusion." Id. at 969.
Such cases are pretty common in state court, too. You know, prosecutors go to law school and have virtually limitless charging discretion. So I wouldn't think it cause such apoplexy to impose clear legal circumstances when a prosecutor can't get the charge right. I guess that's what I know.