Pitsnogle v. Commonwealth.1

• Citation: 22 S.E. 351, 91 Va. 808
• Case Date: June 20, 1895
• Court: Supreme Court of Virginia

22 S.E. 351
91 Va. 808

PITSNOGLE.
v.
COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

June 20, 1895.

Indictment—Description of Person—Larceny —Evidence.

1. An indictment alleged the larceny of a watch belonging to "Edmond Bolden, " while the evidence showed it to be the property of "Ed Bolen." Meld, that the names were idem so-nans.

2. Where an indictment alleged the larceny of a "gold watch, " evidence of the owner that he gave $30 for it and that when he purchased it it was represented to he gold, is sufficient to sustain conviction.

3. By Code 1887, § 3716, embezzlement is larceny.

4. Upon an indictment simply charging larceny, the commonwealth may show either that the subject of larceny was received knowing it to be stolen, or that it was obtained by a false token or pretense, or that it was embezzled.

5. The defendant lent B. six dollars on his watch, as security, and gave a receipt correctly showing the transaction, but, by fraudulently substituting another paper for the one he gave, attempted to convert the transaction into a sale. Held, that a verdict of guilty of larceny was sustained.

Error to hustings court of Roanoke; John H. Woods, Judge.

E. B. Pitsnogle was found guilty of larceny, and brings error. Affirmed.

Jas. T. Hinton, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

KEITH, P. E. B. Pitsnogle was indicted in the hustings court of the city of Roanoke for the larceny of a gold watch of the value of $30, the property of Edmond Bolden. For this offense he was, at a subsequent term, tried before a jury, found guilty as indicted, and his punishment fixed at 15 days in jail and a fine of $15.

The first assignment of error is that the court erred in overruling the demurrer of petitioner to the indictment. The indictment is in the usual form, and this objection cannot be sustained.

The second error assigned is that the court erred in overruling the defendant's motion to set aside the verdict on the ground that it was contrary to the law and evidence. First, because, as it is alleged, there is a variance between the allegations of the indictment and the proof, inasmuch as the indictment states that the watch was stolen from "Edmond Bolden, " while the evidence is that the party whose property was stolen was named "Ed Bolen." The rule, as stated in 1 Bish. Cr. Proc. § 689, is that "if the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial." In the 16th volume of Am. & Eng. Enc. Law, p. 126, it is said that "whether or not two or more names are idem sonans may be determined by the court upon a mere comparison, where the issue is free from doubt; but the modern...