Pacelli v. State
| Decision Date | 04 June 1929 |
| Docket Number | No. 25280.,25280. |
| Citation | 201 Ind. 455,166 N.E. 649 |
| Parties | PACELLI et al. v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
Frank Pacelli and another were convicted of burglary, and they appeal. Affirmed.
William O. Thomas, of Gary, and George E. Hershman, of Crown Point, for appellants.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
Appellants were charged with committing the crime of burglary in the nighttime (section 2447, Burns' 1926); by unlawfully, feloniously, and burglariously breaking and entering into the storehouse of Miller-Whol Company, with the intent to unlawfully, forcibly, feloniously, and burglariously take, steal, and carry away goods of the value stated. No issue of law was presented upon the charge of the crime. The trial of the issue of fact upon appellants' pleas of not guilty resulted in a verdict of guilty by the jury, upon which judgment was rendered. This appeal from the judgment is predicated upon the ruling of the court, overruling appellants' several motions for a new trial, for the reasons that the verdict is not sustained by sufficient evidence, and is contrary to law, and upon the court's refusal to give certain tendered instructions, and the giving by the court, on its own motion, of certain instructions.
[1][2] All questions under the assigned errors arise upon the evidence. Appellants claim there is a fatal variance between the name of the owner of the storehouse and the goods which appellants intended to steal as pleaded, and the proof of the name of such owner. The name as pleaded is M-i-l-l-e-r hyphen W-h-o-l Company; and the name proved is the M-i-l-l-e-r hyphen W-o-h-l Company, Incorporated. The witness who testified to the name as last given testified that he is “assistant manager of the Miller-Wohl Company,” and used the latter name throughout his testimony. If the two names pleaded and proved us the name of the owner of the store and goods are not idem sonans, there is a variance between the pleading and the proof, and it is fatal to the judgment. The question whether or not the two names were as pleaded and proved is one of fact; and, being of fact rather than of law, it was for the jury to determine. Evans v. State (1927) 199 Ind. 55, 155 N. E. 203;Siebert v. State (1884) 95 Ind. 471, 478; Smart v. State (1883) 88 Ind. 504, 506, 507;Commonwealth v. Brigham, 147 Mass. 414, 18 N. E. 167; 1 Bishop's New Criminal Procedure (4th Ed. 1895) § 688 (2), p. 408. The question is not one of law, because the law does not regard orthography in the spelling of proper names. Pinney v. State (1901) 156 Ind. 167, 168, 59 N. E. 383; 1 Bishop's New Criminal Procedure (4th Ed. 1895) § 688. The question of idem sonans is usually submitted to the jury with proper instructions by the court. Instructions on this question were not requested, and none were given by the court's own motion. The evidence is sufficient to sustain the verdict, upon the question of the identity of the owner by the name as pleaded and the name as proved, that the two names are idem sonans.
[3] Appellants assert that a necessary element of the offense was that the articles taken or intended to be taken had value. There is an entire lack of evidence concerning the value of any of the goods which appellants intended to take as pleaded. The evidence is not insufficient to sustain the verdict on this point, for the reason that, to charge burglary with intent to commit a larceny, it is not necessary to allege the value of the goods intended to be stolen. Furthermore, the evidence does not show that appellants took, stole, and carried away any goods, but it is sufficiently proved that they intended to do so. The value here does not aid in establishing the degree of the crime. Farley v. State (1891) 127 Ind. 419, 26 N. E. 898;Hunter v. State (1867) 29 Ind. 80.
[4][5] The value of the goods intended to be stolen not being an element of the crime of burglary, the allegation of such value is surplusage. Surplusage of allegations in charging a crime need not be proved as alleged.
Error is predicated upon the ruling of the court refusing to give tendered instruction No. 3 to the jury, which was refused by the court. The instruction is as quoted, viz.: ...
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