Horn v. State

• Decision Date: 03 April 1933
• Docket Number: 30551
• Citation: 147 So. 310,165 Miss. 169
• Court: Mississippi Supreme Court
• Parties: HORN v. STATE

147 So. 310

165 Miss. 169

HORN v. STATE

No. 30551

Supreme Court of Mississippi

April 3, 1933

Suggestion Of Error Overruled April 17, 1933.

(In Banc.)

1. INDICTMENT AND INFORMATION.

Variance between indictment and proof in name of owner of stolen cow was amendable at trial, where evidence clearly showed identity of offense charged would not have been thereby changed.

2. INDICTMENT AND INFORMATION.

Objections to variance between indictment and proof in name of owner of stolen cow was waived where not made before verdict.

3 LARCENY.

Where cow was in seller's possession either as owner or as security for unpaid purchase price, ownership in larceny indictment was properly alleged to be in seller.

ETHRIDGE J., dissenting.

HON. E M. LANE, Judge.

APPEAL from circuit court of Smith county HON. E. M. LANE, Judge.

Walter Horn was convicted of larceny of a cow, and he appeals. Affirmed.

Judgment reversed.

W. H. Hughes, of Jackson, for appellant.

The indictment against appellant plainly and unmistakably charged that the cow stolen and carried away by the appellant, Horn, was the property of "Walter" Brown.

An indictment, charging the violation of the statute, Section 1009, Code of 1930, must embrace the correct name of the person whose property has been stolen, and the proof must show that the property stolen belonged to the identical person named in the indictment.

There is not a word or line of proof in the record showing that the cow stolen was the property of "Walter" Brown.

The rule of law that requires the state to prove that the property stolen belongs to the identical person as charged in the indictment is well established.

Clark v. The State, 57 So. 209; Nichols v. State, 144 So. 374.

W. H. Hughes, of Jackson, and J. D. Martin, of Raleigh, for appellant.

A substantial misnomer of either the Christian name or the surname of a defendant charged with crime is good matter for a plea, and well pleaded in abatement to the indictment.

Weyms v. State, 69 So. 310.

Any attentive car would find no difficulty in distinguishing between the name "Walter" and "Walker." There is a perceptible difference in the sound as well as the spelling of the two names. It is only the careless and inattentive ear that would fail to distinguish the two names.

The indictment does not so charge that the cow is the property of "Walker" Brown. The indictment plainly charges that the cow is the property of "Walter" Brown.

The proof shows that at the time the cow was alleged to have been stolen she was running at large on all open range, and was not in the actual possession of any person. Lige McCollum had been living on "Walker" Brown's place for two years, and during this time had bought the cow, had her in his possession, milching her while she was (it seems) running with the cattle of Brown. When McCollum moved away he told Brown to retain a lien on the cow, and left her still running on an open range. When the cow was found by the sheriff of Jasper County and "Walker Brown," the latter carried the cow back and turned over into the possession of Lige McCollum to whom he had previously sold her. This latter fact, as told by Brown himself seems to be decisive as to who might have had the cow in possession at the time she was alleged to have been stolen. It rather conclusively shows that the cow was not in the possession of "Walker Brown" at the time she was alleged to have been stolen, and that the case could not be affirmed under this theory, even if the indictment had charged that the cow was the property of "Walker Brown."

Herbert Nunnery, Assistant Attorney-General, for the state.

It is not questioned and not disputed but what the owner's name of the cow is Brown. It is just a question of whether the difference between "Walter" Brown and "Walker" Brown would be fatal under the law of this state, or prejudice the interests of the appellant. We submit that "Walter" and "Walker" sound so much alike when pronounced that the distinction is hard to detect. There is also a difference, in our opinion, between the misspelling and mispronunciation of a given name and a surname, but certainly, a difference in the given name is less harmful.

Rooks v. State, 3 So. 720; Weyms v. State, 69 So. 310.

We submit that the names "Walter" and "Walker" are so similar and sound so much alike when pronounced that the rule laid down in the above cited Alabama case should apply here.

In the case of an indictment for burglary, allegations as to the ownership of the title to the property constitute surplusage, and, in so far as the burglary is concerned, the occupant of the property at the time is the owner, and no such particularization of description of property is required.

Clinton v. State, 142 So. --; Lewis v. State, 85 Miss. 35, 37 So. 497.

This court holds that "possession is enough against burglars," and it is our position that the same rule would apply in the case of grand larceny.

Smith, C. J., Ethridge, J.

OPINION

Smith, C. J.

This is an appeal from a conviction of the larceny of a cow. The indictment described the cow simply as the "property of Walter Brown" and set forth that a more perfect description thereof was to the grand jurors unknown. The evidence discloses that the cow while owned by Walker Brown was sold, or agreed to be sold, by him to another, who made him a partial payment thereon and left the cow in his possession for delivery to the purchaser when the balance of the purchase price should be paid. The cow was in Brown's possession when stolen.

The appellant's complaints are: First, that there is a variance between the indictment and the proof in two particulars: (1) In the name of the owner of the cow, the indictment alleging that name to be Walter Brown and the evidence disclosing that it was Walker Brown; and (2) in the ownership of the cow, the evidence disclosing that the cow was not owned by Brown, but by another.

The variance between the indictment and proof in the name of the owner of the cow was amendable at the trial, it being clear from the evidence that the identity of the offense charged would not have been thereby changed. Objections to variances of this character must be made before verdict and, if not, are waived. Consensus tollit errorem. Foster v. State, 52 Miss. 695; Unger v. State, 42 Miss. 642; Wood v. State, 64 Miss. 761, 2 So. 247; Smith v. State, 112 Miss. 248, 72 So. 929; Slade v. State (Miss.), 119 So. 355. Compare White v. State, 95 Miss. 75, 48 So. 611; Hudson v. State, 73 Miss. 784, 19 So. 965.

The appellant relies on Clark v. State, 100 Miss. 751, 57 So. 209, 38 L.R.A. (N.S.) 187, Ann. Cas. 1914A, 463, wherein the appellant was convicted of murder on an indictment charging him with the murder of Tobe Wallace. The evidence disclosed that the name of the person killed was Tobe Hollis. No objection thereto was interposed at the trial. The court held that, (1) the objection could be raised in the Supreme Court for the first time, and (2) that the variance, though curable by amendment, was fatal, and therefore reversed and remanded the case. This decision is in conflict with the construction theretofore put on the statute, is erroneous, and must be and is hereby overruled.

In Davis v. State, 150 Miss. 797, 117 So. 116, an amendment to cure a similar variance between the indictment and the proof was authorized by the court at the trial, but the statute providing how the amendment should be made was not complied with, for which reason the judgment of the court below was reversed and the cause remanded. That case is not in point here. The district attorney having attempted to amend the indictment to conform to the proof, it was not necessary for the appellant to interpose an objection to the variance.

The cow was in Brown's possession either as owner or as security for the unpaid purchase price thereof. In either case its ownership for the purpose of this prosecution was properly alleged to be in Brown. 3 C. J. 832; 2 Bishop, Crim. Procedure (4 Ed.), section 72.

Affirmed.

DISSENT BY: Ethridge

Ethridge J., delivered a dissenting opinion.

As I understand the case, the majority of the court does not contend that the doctrine of idem sonans applies to "Walter Brown" and "Walker Brown." In other words, it is not contended that that doctrine would make the proof consistent with the indictment. The description of the ownership of the cow in Walter Brown is an essential element of the offense; it is the only thing the grand jury placed in the indictment by which the stolen cow could be identified at all. There was no other description known to the grand jury, and none was undertaken to be added by amendment in the indictment. The proof, therefore, must conform to the indictment as found by the grand jury. If the grand jury had otherwise described the stolen cow, so as to make the indictment point with certainty to the property stolen, and to its owner, an amendment could have been made.

In this record we have a case where a party was indicted for stealing property belonging to another, the proof showing that the property belonged to yet another person; and, consequently, that it did not belong to the party alleged to be the owner in the indictment. It is a clear case, therefore, of charging one offense, and proving another, and affirming such conviction.

Under section 26 of the Constitution one accused of a criminal offense must be informed by the indictment of the nature and cause of the accusation against him. By section 27 of the Constitution, no person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave...