State v. Winder
| Decision Date | 10 July 1900 |
| Citation | 46 A. 1046,22 R.I. 177 |
| Parties | STATE v. WINDER, |
| Court | Rhode Island Supreme Court |
Appeal from court of common pleas, Providence county.
Frederick H. Winder was convicted of larceny, and appeals from an order denying a new trial. Affirmed.
Franklin P. Owen, for appellant. Willard B. Tanner, Atty. Gen., for the State.
TILLINGHAST, J.The only ground upon which the defendant asks for a new trial is that the common pleas division refused to quash the indictment because of a variance between the allegation and the proof, in this: The indictment alleges that the Gorham Manufacturing Company, the owner of the property stolen, was a corporation duly chartered and organized under the laws of the state of Rhode Island, while the certified copy of the act under which it was organized, which was offered in evidence, showed that it was chartered by the "state of Rhode Island and Providence Plantations." The variance, if such it can properly be called, was trivial, and not of such a nature as to warrant the court in granting the motion to quash. Moreover, the allegation in the indictment that the corporation named was "duly chartered and organized under the laws of the state of Rhode Island" was surplusage, and hence there was no occasion for proving it "All that is needed in an averment of ownership in a corporation is to state the fact of ownership in a corporate body, and to give the name of the corporate owner correctly." McCarney v. People, 83 N. Y. 408. In the case at bar it was necessary to prove that the owner was a corporation, and that it existed under the name alleged in the indictment; and, as this was done, everything was proved that was necessary to have been averred in the indictment regarding ownership. We are aware of the rule that no allegation, whether it be necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage. State v. Fitzpatrick, 4 R. I. 269. For instance, in an indictment for the larceny of a "black horse," the case cannot be made out by proof that the horse stolen was of some other color. And the same strictness of proof is required where a place is mentioned in an indictment, not as a matter of venue, but of local description. But it is evident that the exact technical name of the state by whose authority the corporation which owned the property that was stolen was created, is in no way descriptive of the identity of...
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