Roberts v. State

• Decision Date: 01 April 1964
• Docket Number: No. 30424,30424
• Parties: James Leo ROBERTS and Robert Darwin Board, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 304

197 N.E.2d 304

245 Ind. 185

James Leo ROBERTS and Robert Darwin Board, Appellants, v. STATE of Indiana, Appellee.

No. 30424.

Supreme Court of Indiana.

April 1, 1964.

James W. Bradford, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., Frederick J., Graf, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellants were charged with armed robbery 'forcibly by violence and putting Melvin Calvert in fear' and taking from his possession money 'then and there the property of Walt's South Side Market, Inc., a corporation.' The defendants were both found guilty as charged and sentenced accordingly. By a motion for a new trial they asked for a reversal on the ground that there is a material variance in the evidence in that there was no rpoof that the money taken was the property of 'Walt's South Side Market, Inc.' as alleged, although there was testimony with reference to Walt's South Side Super Market, Walt's Super Market, Walt's Market, and various other somewhat similar names; and that there is not sufficient evidence showing that the appellant-Board participated in the alleged crime.

It is urged by the State that the essential element of the offense is the allegation of the taking of the money with force and violence from the person of Melvin Calvert, and that the allegation that the money was the property of Walt's South Side Market, Inc. was surplusage and at most, went to show that the money was not the property of the accused. Welch v. State (1924), 195 Ind. 87, 143 N.E. 354; 25 I.L.E., Robbery, § 3.

A review of the evidence shows that two witnesses stated they were cashiers at 'Walt's Southside Market' at the time of the alleged robbery, and recited the events with reference to the alleged robbery at the time. Both witnesses identified appellant-Roberts. They testified that the money belonged to 'Walt's South Side Market'. A third witness, Gilbert Silverman, testified that he was a customer in 'Walt's Southside Market' at the time of the holdup. Lowell Lynn stated that he was an employee of 'Walt's Southside Supermarket' on the night in question and observed the events which were the same as those referred to by the other witnesses. The police referred to 'Walt's Southside Supermarket' when they were called to the scene of the holdup. Melvin Calvert referred to 'Walt's Supermarket' located at 1053 South West Street, and recited the same events as taking place at the same time, and referred by name to the cashiers who testified as witnesses. We therefore have witnesses interchangeably using these names for the same location of the store, market, or supermarket in question and referring to the same place, the same date and the same events. Anyone listening to this testimony would conclude that these names were used interchangeably and were names by which the place, store or market was commonly known.

It seems to us the principle of idem sonans is applicable here. At most, it can be said that the place was identified, as alleged in the affidavit, as 'Walt's Southside Market', omitting the 'Inc'. This is a similar situation to that where a defendant is named and the word 'Junior' or 'Senior' is affixed thereto. It has been held that such an abbreviation and description need not be proved. Allen v. The State (1876). 52 Ind. 486; Ross v. State (1889), 116 Ind. 495, 19 N.E. 451; State v. Simpson (1906), 166 Ind. 211, 76 N.E. 544, 1005.

A somewhat similar case is that of Headlee v. State (1929), 201 Ind. 545, 168 N.E. 692, 170 N.E. 433, in which the evidence of the ownership of the automobile alleged to have been taken varied from 'American Security Company', 'American Security Company, a Corporation' and 'American Security, a Corporation'. The evidence actually showed the ownership to be in the 'American Security Company of Rushville', a corporation. The court held this was not a material variance and stated:

'* * * Throughout the evidence, the owner of the automobile which was taken was referred to as 'American Security Company.' The evidence was conclusive that this company was located in Rushville, Indiana. Although the corporate name of the owner was 'American Security Co. of Rushville,' it can be inferred from the evidence that it was generally known as 'American Security Company.' There is no doubt as to what corporation was meant when that name was used in the indictment and was used in the evidence. Although the 'American Security Company' was named in the...