State v. Moss
| Decision Date | 03 January 1984 |
| Citation | 662 S.W.2d 590 |
| Parties | STATE of Tennessee, Plaintiff-Appellant, v. James L. MOSS, Defendant-Appellee. |
| Court | Tennessee Supreme Court |
Gordon W. Smith, Asst. Atty. Gen., Nashville, for plaintiff-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
Leslie I. Ballin, Ballin & Ballin, P.C., Memphis, for defendant-appellee.
The defendant was convicted of the offense of petit larceny and received a sentence of 11 months and 29 days incarceration in the Shelby County Correctional Center. The Court of Criminal Appeals concluded that a fatal variance existed between the allegations of the indictment and the proof at trial respecting the ownership of the money stolen, and, accordingly, reversed the judgment and dismissed the indictment. We granted the State's application for permission to appeal from that judgment.
The indictment charged that the defendant:
"... did unlawfully and feloniously steal, take and carry away the sum of five hundred and eighty and no one hundreds ($580.00) dollars, good and lawful money of the United States, a more particular description of which is to the grand jurors aforesaid unknown all of the value of five hundred eighty and no one hundreds dollars, of the proper goods and chattels of MATT'S PIZZA, a Business Owned and Operated by Charles W. Oswalt and Robert Furlotte, a Partnership, with intent feloniously to convert the same to his own use, to deprive the true owner thereof against the peace and dignity of the State of Tennessee." (Emphasis added.)
The State's evidence at trial was to the effect that Jonathan Blane Elledge was an employee of Matt's Pizza located at 2055 Frayser Boulevard in Memphis on February 6, 1981, when he left a bank bag containing $580.00 cash on the seat of his automobile while he went into a restaurant to get supplies. This money belonged to Matt's Pizza and was to constitute a "change fund" for use over the ensuing week end. As Elledge came out of the restaurant and proceeded toward his car he saw the defendant entering a car parked at the rear of his own car. He observed the Matt's Pizza money bag lying on the seat beside the defendant as the defendant drove away. Elledge committed the defendant's vehicle license number to memory and this information led to the arrest of the defendant. The license number was indeed that of the defendant's car and the witness Elledge also identified the defendant as the thief when shown several photographs by the police.
The proof respecting ownership of the money consists of the testimony of Mr. Elledge as follows:
It will be noted that both the indictment and the proof state that the money was owned by Robert Furlotte and Charles Oswalt; the variance is that the indictment states that Furlotte and Oswalt operated as a partnership, whereas, the proof states that the same two owners operated their business in corporate form.
To the extent that it can be said that a variance exists between the indictment and the proof respecting the owner of the money stolen, we hold that it was not a material one and amounts to nothing more than harmless error. Some of our cases have followed the early common law rule that very strict conformity was required between the allegations of the indictment and the proof, even in minor and immaterial respects. Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923); Chapple v. State, 124 Tenn. 105, 135 S.W. 321, 323 (1911); State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491, 493 (1970); Martin v. State, Tenn.Cr.App., 542 S.W.2d 638 (1976). However, the old common law rule has been relaxed in modern times so that substance rather than form is now determinative of such questions.
The policy now followed in this and in most other jurisdictions is that before a variance will be held to be fatal it must be deemed to be material and prejudicial. A variance between an indictment and the proof in a criminal case is not material where the allegations and proof substantially correspond, the variance is not of a character which...
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State v. Bush
...the defendant with protection against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991). Moreover, in State v. Moss, 662 S.W.2d 590, 592 (Tenn.1984), the Tennessee Supreme Court held that a variance between the proof and the indictment did not prejudice the defendant's rights ......
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State v. McCary
...between an indictment and the evidence could be considered fatal, it must be deemed to be material and prejudicial. State v. Moss, 662 S.W.2d 590 (Tenn.1984). So long as the defendant is not misled at trial, any variance is not considered to be a basis for reversal. Johnson v. State, 596 S.......
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State v. Huskey
...fatal unless it is both material and prejudicial." State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984)). A variance is not material if the allegations and evidence at trial substantially agree. Moss, 662 S.W.2d at "Unless sub......
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State v. Maritime
...between the indictment and the proof will be considered fatal if the variance is both material and prejudicial. See State v. Moss, 662 S.W.2d 590, 592 (Tenn.1984). A defendant suffers no harm from the variance unless it affects his substantial rights. Id. “[A] variance does not prejudice th......