McCallister v. State

• Decision Date: 08 April 1940
• Docket Number: 27309.
• Citation: 26 N.E.2d 391,217 Ind. 65
• Parties: McCALLISTER v. STATE.
• Court: Indiana Supreme Court

26 N.E.2d 391

217 Ind. 65

McCALLISTER v. STATE.

No. 27309.

Supreme Court of Indiana

April 8, 1940

Appeal from Vigo Circuit Court; Martin L. Pigg Special Judge.

Jeffries Jeffries & Johnson, Ralph Brill, and Frank Hamilton, all of Terre Haute, for appellant.

Omer S. Jackson, Atty. Gen., and Rex A. Boyd, Deputy Atty. Gen for appellee.

FANSLER Judge.

The appellant was convicted of buying stolen goods. Error is assigned upon the overruling of appellant's motion for a new trial.

It is charged in the affidavit that at the County of Vigo the appellant bought certain specified articles of merchandise belonging to J. Edward Holler, knowing that the property had been stolen in said county. It is conceded that it was not necessary that the affidavit state the place at which the goods were stolen, but it is contended that, since the allegation is made, it is part of the description of the goods and must be proven as alleged. The evidence shows that the goods were stolen from the Holler store in Clay County. It is contended that there is therefore a fatal variance between the charge and the proof. The appellant relies principally upon Semon v. State, 1902, 158 Ind. 55, 62 N.E. 625, and Dennis et al. v. State, 1883, 91 Ind. 291, 294, 295, to support his contention. From the first case referred to the appellant quotes, not the conclusion of the court, but the contention of the appellant that, while it is unnecessary to allege the name of the thief in an affidavit for receiving stolen goods, or that his name is unknown, yet if it is alleged that it is unknown, it must be proved that it was unknown. The court decided against the contention, and that the allegation that the name of the thief was unknown is wholly immaterial and surplusage. The Dennis case was a prosecution for maintaining a public nuisance. The affidavit charged the crime to have been committed in Hancock County, and that the defendants operated a slaughter-house near the dwellings of three named persons. The evidence showed that it was near the residence of two of the persons, but there was no proof that it was near the residence of the third. The court said: 'Is the phrase 'near the residence of Joseph Loehr, Noble Warrum and Rufus Scott,' matter of description or matter of venue only? It can not be regarded as matter of venue, because the venue of the offence charged was previously alleged, in both the affidavit and information, to be 'at said county of Hancock and State of Indiana.' The phrase must, therefore, be regarded as matter of description, and although it was alleged unnecessarily, and was not a material averment in the affidavit and information, yet, having been alleged, it must be proved, under the decisions of this court, precisely as charged, and a variance will be fatal. Ball v. State, 26 Ind. 155; Wertz v. State, 42 Ind. 161, and authorities cited.' It is conceded that if the affidavit had not named the particular person in question it would have been good, and the proof would have been sufficient. The Wertz case was a prosecution for maintaining a soap factory, which was a nuisance, upon a particular tract of land described in the affidavit. It was held that the allegation describing the tract upon which the nuisance was erected and maintained was unnecessary, but that, since it was alleged, it must be proved as alleged. The Ball case, which was cited as authority in the Wertz case, was a prosecution for forcible entry and detainer. It was held that a variance between the charge and the proof in the description of the premises charged to have been entered and detained was fatal, but it was not held that the description of the premises was unnecessarily alleged, and therefore the case does not support the rule announced in the cases in which it was cited. It has always been recognized that where, in an affidavit for larceny, the property charged to have been stolen is particularly described, a material variance in the proof will be fatal. Thus where it is charged that the defendant stole a white horse, proof that a black horse was stolen will not suffice. The defendant is entitled to be informed of the particular charge against him. He might in his defense bring witnesses to show that he had never had a white horse, whereas he may have had black horses in his possession, and the witnesses would be useless to his defense. And where one is charged with maintaining a soap factory, which is a nuisance, upon a particular tract of land, he might prepare to defend himself by showing that he was not in possession of the land, or that he had never manufactured soap upon those premises, and his defense would be made ineffective by permitting proof that he maintained a soap factory at some other or different place within the county. In Carter v. State, 1851, 2 Ind. 617, 618, a murder case, it is said: 'The indictment did not name the particular poison administered. Had it, it would not have been necessary that the proof should correspond. 3 Chit.Cr.L. 734.' At the page cited, Chitty says, concerning the description of the offense charged: 'An allegation of one kind of death will not be supported by evidence of another essentially different, so that if it be alleged that the murder was committed by stabbing, and it be shown to have been by drowning or poisoning, the prisoner must be acquitted. * * * But if the act of the prisoner and the means of death proved, agree in substance with those which are alleged, the nature of the violence and the kind of death occasioned by it being the same, a mere variance as to the name or kind of instrument used, will not be material. * * * An indictment for assaulting with a staff, is supported by evidence that the violence was offered by a stone. * * * And an indictment for murder, occasioned by one description of poison, will be supported in evidence by proof of murder by a poison of another description. * * * And in an indictment for murder, by throwing stones at deceased, it is not necessary to state the number of stones thrown. * * * It is usual, where the death was occasioned by a blow from some instrument, to state that the defendant held it in his right or left hand, or in both his hands; and this is said to be essential, 2 Hale, 185, though Mr. East says, he finds no ground for this particularity, 1 East P.C. 341. In a late case against several defendants for murder with stones, an allegation that the stones were 'held by the defendants in their right hands,' was good, at all events, after conviction, 13 Price, 172.'

In Mergentheim v. State, 1886, 107 Ind 567, 574, 8 N.E. 568, 571, it is said: 'But the variance, if such it be, had reference only to a matter of unnecessary decription; and for a mere failure to prove, with technical exactness, an averment which was not necessary, nor of the essence of the offense charged, we would not, under the rules governing appeals in criminal cases, be authorized to reverse.' In Kruger v. State, 1893, 135 Ind. 573, 577, 578, 35 N.E. 1019, 1021, it is said: 'An approved modern author thus states the rule: 'A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused of the danger of being put twice in jeopardy for the same offense.' 3 Rice, Crim.Ey. § 121. It is very clear that the variance could not have misled the defense, and it is equally clear that this conviction will forever remain a complete bar to another prosecution against appellant for burning the same building. That being so, it would be a reproach to the law if he could obtain a reversal of a just conviction on...