Lowery v. Com.

• Decision Date: 27 May 1921
• Citation: 191 Ky. 657,231 S.W. 234
• Parties: LOWERY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

231 S.W. 234

191 Ky. 657

LOWERY v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 27, 1921

Appeal from Circuit Court, Daviess County.

Robert Lowery was convicted of feloniously breaking into a storehouse with intent to steal, and appeals. Affirmed.

Aud &amp Higdon, of Owensboro, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

CLARKE J.

The appellant, Robert Lowery, and another were charged jointly by indictment with the crime of feloniously breaking into a storehouse with intent to steal, which is a crime denounced by section 1164, Ky. Statutes.

Appellant upon a separate trial was convicted, and his punishment fixed at confinement in the penitentiary for five years. For reversal of that judgment he urges that the court erred: (1) In overruling his motion for a directed verdict; (2) in refusing to exclude the evidence of all of the commonwealth's witnesses; (3) in failing to properly instruct the jury; and (4) in the admission of incompetent evidence.

1. The right to a peremptory instruction is claimed because of an alleged fatal variance between the charge in the indictment and the evidence. The indictment in the accusatory part charges the commission of the crime in general language, and in the descriptive part alleges that:

"The said Robert Lowery and Ed Ervin and each of them, acting jointly and together, each aiding, assisting and abetting the other in Daviess county, Ky. on the ______ day of _____, 1920, and before the filing of this indictment, with force and arms willfully, unlawfully, and feloniously did break into and enter into a storeroom of Levy's, a corporation, duly created and existing by virtue of the laws of Kentucky," etc.

The evidence shows that the storeroom broken into was Levy's, a copartnership, and not a corporation; that Levy's had been a corporation, but that shortly before the robbery the corporation had been dissolved, and the store had since been operated under the same name, but as a copartnership. This is the variance that counsel for defendant insist is fatal, and entitled him to a directed verdict, but we are unable to agree with this contention. It is clearly shown by the proof that the store of Levy's referred to in the indictment was the store of Levy's broken into. The clause "a corporation duly created and existing by virtue of the laws of Kentucky" is merely descriptio personæ, and might have been omitted without affecting the validity of the indictment. The variance cannot possibly have misled the defendant in making his defense, nor can he again be placed in jeopardy for the same offense. It is therefore not a fatal variance.

This court in Commonwealth v. Brown, 123 Ky. 20, 93 S.W. 605, 29 Ky. Law Rep. 434, approved the rule as stated in 22 Encyclopedia of Pleading and Practice, 551, that--

"Variances are regarded as material in criminal cases only when they mislead the defendant in making his defense, and may expose him to the danger of being again put in jeopardy for the same offense."

To the same effect are Commonwealth v. Jarboe, 89 Ky. 143, 12 S.W. 138, 11 Ky. Law Rep. 344; Sutton v. Commonwealth, 97 Ky. 308, 30 S.W. 661, 17 Ky. Law Rep. 184; Sutton v. Commonwealth, 154 Ky. 799, 159 S.W. 589. The cases of McBride v. Commonwealth, 13 Bush, 337, Carter v. Commonwealth, 76 S.W. 337, 25 Ky. Law Rep. 688, and similar cases relied upon by appellant, are not applicable here. In those cases the defendant was charged with stealing the property of a named person, and the proof was that he had stolen the property of an entirely different person, whose name was not even idem sonans. Manifestly in those cases the variances were fatal because they were such as would have misled the defendant in making his defense, and he would have been in danger of again being put in jeopardy for the same offense. The precise question here involved was before this court in Commonwealth v. Vineyard, 118 Ky. 645, 82 S.W. 289. The indictment in that case charged that the defendant stole certain manila ropes from the Columbia Stave Company, and that same was a duly incorporated company. This court held that by reason of the provisions of section 128 of the Criminal Code the indictment was sufficiently certain without an averment that the Columbia Stave Company was an incorporated company, and that although the indictment averred that it was a corporation, this was an unnecessary allegation, and need not have been proved.

2. It is insisted that the evidence of each of the commonwealth's three witnesses was incompetent, and should have...