Pitsnogle v. Commonwealth.1

• Decision Date: 20 June 1895
• Parties: PITSNOGLE. v. COMMONWEALTH.1
• Court: Virginia Supreme Court

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 and approved practice is to submit the question to a jury whenever there is opportunity to do so, and where the correct sound appears at all doubtful or dependent upon particular circumstances." In our judgment, the court might very safely have disposed of this objection without the assistance of the jury, but as it seems to have taken the even more unexceptionable mode of determining the question (that of leaving it to the jury), the result is still less the subject of complaint or of error.

It is alleged in the indictment that a gold watch was stolen, and it is claimed that there is no proof that it was of gold. Bolen, its owner, testifies that he gave $30 for the watch; that it was represented, when purchased by him, as a gold watch; and while there was no analysis or chemical test as to the metal of which it was made, this evidence would seem to be sufficient to justify the verdict of the jury upon this point.

The petitioner, however, relies more particularly upon the fact that the commonwealth has failed to show the essential elements which constitute the crime of larceny. Much of the oral argument was devoted to the...