Miller v. Commonwealth
| Decision Date | 06 May 1930 |
| Parties | Miller v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Indictment and Information. — Generally, variances between indictment and proof are not regarded material, unless misleading accused in making defense or exposing him to danger of second conviction for same offense.
3. Larceny. — If indictment laid ownership of stolen property in corporation, and proof established owner to be same as corporation named, that name in indictment is not true name is not fatal variance.
4. Larceny. — Variance between indictment charging property was stolen from corporation and proof showing corporation with different name, but generally known as indictment designated, owned goods, held not material.
The indictment charged that copper wire and other articles taken were property of a named coal company, and the evidence showed that they were property of company by different name. The proof showed also that the technical name of corporation was as evidence proved, but that it was generally known as it was designated in indictment.
5. Criminal Law. — Error, if any, in admitting evidence not objected to, is not available on appeal.
Appeal from Bell Circuit Court.
W.J. STONE for appellant.
J.W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.
Affirming.
T.J. Miller appeals from a judgment convicting him of grand larceny and fixing his punishment at two years' imprisonment.
The facts are these: The Belvey Straight Creek Coal Company owns a mine on Four Mile creek in Bell county. The mine is operated by electricity, and copper wire is used for that purpose. William Lewis, who owned substantially all the stock of the company and operated the mine, had been missing some of the copper wire. Being convinced that it had been stolen, he offered a reward for the apprehension and conviction of the thief. With the view of apprehending the thief, Lewis, accompanied by his brother, Lon Lewis, and two deputy sheriffs, Cleveland Bailey, and Joe Manning, went to the mine. Manning remained at the mouth of the mine while the others went into the mine to the mouth of a cross entry, where they waited. About an hour and a half later they heard a mine car coming down the slope toward the mouth of the mine, and placed a cross-tie on the track to stop it. As the car approached the mouth of the cross entry, flashlights were turned on the car, and appellant Miller and Matt Shelton were seen riding in the car. Appellant and Shelton immediately drew their pistols, and about the same time the car struck the cross-tie and was wrecked. Shelton was thrown from the car, and appellant was either thrown out or jumped out. Appellant ran down the track and out of the mine as the Messers Lewis and Bailey called to him to stop and fired several shots in his direction. Shelton was arrested while in the mine, and appellant was arrested by Deputy Sheriff Manning as he came out of the mine. At the time of his arrest appellant was carrying a pistol in his hand. There were found in the car in which appellant and Shelton were riding four bundles of copper trolley wire cut into short lengths, and an old track adz. The bundles of wire weighed 204 pounds, and there was evidence that they were of the value of $56.
Shortly after he was arrested appellant stated that he was caught, but this was the first time he had ever taken any of the wire. On the other hand, appellant testified that on the night in question Shelton came to his house and asked him to go inside the mine, as he wanted to get some pliers and screwdrivers that his brother Tom had left in there and work on an automobile. They then went into the mine,...
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