State v. Ham

• Citation: 21 S.D. 598,114 N.W. 713
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. JOHN HAM, Plaintiff in error.
• Decision Date: 07 January 1908
• Court: Supreme Court of South Dakota

21 S.D. 598

114 N.W. 713

STATE OF SOUTH DAKOTA, Defendant in error, v. JOHN HAM,

Plaintiff in error.

South Dakota Supreme Court

Error to Circuit Court, Charles Mix County, SD

Hon. E. G. Smith, Judge

Reversed

S. H. Wright

Attorney for plaintiff in error.

S. W. Clark, Attorney General

Cloyd D. Sterling, Asst., Attorney General

John E. Tipton, State’s Attorney

Attorneys for the State.

Opinion filed January 7, 1908

CORSON, J.

Upon an information duly filed by the state’s attorney of Charles Mix county the defendant was tried and convicted of the crime of grand larceny. The information, omitting the preliminary allegations, is as follows:

“That John Ham, late of said county, Yeoman, on the eleventh day of August, in the year of our Lord one thousand nine hundred and six, at the county of Charles Mix, and state of South Dakota aforesaid, did willfully and unlawfully and feloniously, and by means of fraud and stealth, and with the intent to deprive another thereof, take, steal, and carry away certain personal property; to wit, twenty-two head of cattle, the same being neat, and which cattle were then and there all steers two and three years old, and which cattle were then and there of the value of seven hundred dollars, and were then and there owned by and in possession of C. F. Coppersmith and C. Reid, copartners as Coppersmith & Reid, and not the property of the said John Ham, with intent then and there to deprive the said Coppersmith & Reid thereof, and did thereby commit the crime of grand larceny, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of South Dakota.”

On the trial it was disclosed by the evidence of Charlton Reid that one Louis Comer was also interested in the partnership, and was a part owner of the property alleged to have been stolen. Upon this fact appearing by the evidence of Reid, the plaintiff in error, who will hereinafter be designated the defendant, moved to strike out the evidence pertaining to the ownership and possession of this property, on the ground that the proof of ownership was at variance with the allegation in the information. The motion was by the court overruled, and the defendant excepted.

It is contended by the defendant that the ruling of the court in denying defendant’s motion constitutes reversible error; for the reason that it is alleged in the information that the property alleged to have been stolen was owned by and in the possession of C. F. Coppersmith and C. Reid, copartners as Coppersmith & Reid, and that the evidence discloses the fact that the property was owned by Coppersmith, Reid, and Comer. It is insisted on the part of the Attorney General in support of the trial court’s ruling that the learned circuit court properly overruled the motion of the defendant on the ground that section 226 of the Revised Code of Criminal Procedure rendered such a variance immaterial, and by that section the common-law rule requiring that the ownership of the property alleged to have been stolen must be correctly stated has been changed, and that the variance was immaterial. The section referred to reads as follows: “When the offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured is not material.” It will be observed that by the provisions of this section, if the offense involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the property, an erroneous allegation as to the person injured or intended to be injured is not material. It will be observed, however, that in the information the only allegation descriptive of the property alleged to have been stolen is the ownership; that the 22 head of live stock are only described as steers two and three years old of the value of $700. Clearly such description independently of the ownership might be applied to any 22 head of steers two and three years old found in any herd of live stock in the state, and does not serve to identify any particular steers, and consequently that without the allegation of the ownership of the property there is nothing by which the same can be identified.

It will also be observed that the steers are not described by marks or brands upon them, or by any other signs by which they could be selected from any herd of live stock. It is quite clear, therefore, that there is no such description of the property “in other respects to identify the act.” We are clearly of the opinion that the provisions of the Criminal Code before quoted do not apply to this case, and that the variance between the allegations in the information and proof clearly constitute a material variance. The Criminal Code of Procedure of California, § 956, is identically the same as section 226 of our Code above quoted. In the case of People v. Hughes, 41 Cal. 234, it was held an allegation of the ownership of the stolen property is essential in an indictment for larceny, unless the offense is otherwise sufficiently described, and it was there held that the failure to correctly describe the ownership of the property was a fatal variance. In that case the learned Supreme Court of California in discussing this question says:

“The question, therefore, on which the case turns, is whether the allegation of the ownership of the watch is material—whether the averment that Samuel F. Merritt is the owner of the watch is descriptive of the offense, and must be proven as laid. There can be no doubt that at common law such an averment was both material and essential. The citation of authorities is unnecessary, for that is the doctrine of all text books and the cases therein cited. But the statute of this state provides … that when the offense involves the commission, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured shall not be deemed material. It is unnecessary for the purpose of this case to define the meaning of the terms ‘private injury’ and ‘personal injury,’ for the offense is not described in the indictment in this case with sufficient certainty, without the averment as to the ownership of the watch to identify the criminal act as required by that section. Omitting that averment the description of the property is: ‘One gold watch of the value of $200.’ That description is manifestly insufficient to distinguish the watch from any other gold watch of that value. … It was held in People v. Myers, 20 Cal. 79, that the allegation of the ownership of the building which was burned was a part of the description of the offense of arson with which the defendant was charged. See also, People v. Vice, 21 Cal. 344. It would seem that the ownership of the stolen property is equally essential in an indictment for larceny. The court, therefore, did not err in excluding the evidence offered by the defendant.”

And in People v. Wallace, 94 Cal. 497, 29 Pac. 950, it was held, where a complaint filed before a committing magistrate charging the defendant with the larceny of three steers, the property of one Joseph Wright and E. G. Jones, upon which he was held to answer, and the information charged him with stealing two steers, the property of “one Joseph Wright,” the variance was fatal, and a motion to set aside the...