State v. Brew

• Decision Date: 29 March 1892
• Citation: 4 Wash. 95,29 P. 762
• Parties: STATE v. BREW.
• Court: Washington Supreme Court

29 P. 762

4 Wash. 95

STATE v. BREW.

Supreme Court of Washington

March 29, 1892

Appeal from superior court, San Juan county; J. R. WINN, Judge.

Thomas Brew was convicted of grand larceny, and appeals. Affirmed.

Robertson & Jennings, for appellant.

R E. Moody, Pros. Atty., for the State.

DUNBAR J.

The only question that can be considered by the court in this case is the sufficiency of the indictment. No statement of facts has been settled or certified, and a certificate of the clerk of what occurred at the trial could not be notice to this court. The office of a statement of facts is to bring to the notice of this court the very questions sought to be brought to its notice by the certificate of the clerk. In this case the indictment, in substance, charges the crime of grand larceny, committed by stealing a lot of carpenter tools, respectively described, and estimated to have a lump value of $50; and it is contended by appellant that the indictment does not state facts sufficient to charge the appellant with crime under the laws of this state, but that it is necessary to allege the value of each separate article or thing charged to have been stolen. We think the extent to which the courts have gone on this proposition is that, where a lump value is given, and the proofs show that only a part of the articles alleged to have been stolen was stolen, the variance is fatal. It is true that it is stated as a general rule in section 206. Whart. Crim. Pl. & Pr., that "when as in larceny, or receiving stolen goods, personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated." But it is evident from the whole text and cases cited to sustain the proposition that it is stated only with reference to a question of variance between the indictment and the proof, for the learned author refers to Wharton's Criminal Evidence, §§ 121-126, which treat exclusively of the variance between the indictment and the proof; and the sufficiency of the indictment to charge a crime is not discussed at all. As to People v. Coon, 45 Cal. 672 cited by Wharton, it was decided that, where the indictment charged the defendant with stealing five certificates of shares of stock of a certain number, and the proof showed there was but one such certificate, there was a fatal variance. So in Hope v. Com., 9 Metc. (Mass.) 134, cited by the appellant, while the court states that the well-settled practice has been that of stating in the indictment the value of the articles alleged to have been stolen, the opinion as a whole shows conclusively that the application was to a question of variance; for the question decided is shown by the concluding language of the opinion, which is as follows: "Our statutes, it will be remembered, prescribe the punishment...