Opinion
6 Div. 449.
June 30, 1969.
Appeal from the Circuit Court, Fayette County, Strawbridge, J.
David M. Enslen, Louis P. Moore, Charles W. Nolen, Fayette, for appellants.
In order to sustain a conviction for grand larceny, State must establish ownership of property, taking of property, value of property, felonious intent, that defendant did the taking or aided or abetted and time and venue. Buffington v. State, 38 Ala. App. 370, 83 So.2d 606. An allegation in an indictment for larceny as to possession and ownership must be met by proof. Matthews v. State, 18 Ala. App. 222, 90 So. 52. The question of sufficiency of evidence to sustain conviction of defendant of offense of grand larceny is properly presented by refusal of Court to give affirmative charge requested by him in writing. Stuckey v. State, 28 Ala. App. 83, 180 So. 116; Id. 235 Ala. 530, 180 So. 119; Green v. State, 68 Ala. 539; Jackson v. State, 178 Ala. 76, 60 So. 97. When an injury to the person on the property of another is the offense charged, a material averment of the indictment is the identity of such person. If the name of such person is stated, a variance between the allegation and proof as to such name is fatal. The allegation and proof must correspond. McClendon v. State, 23 Ala. App. 425, 126 So. 418; Parks v. State, 21 Ala. App. 177, 106 So. 218.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
A variance will be regarded as immaterial where the indictment sufficiently describes the offense, and the circumstances are such as not to mislead the accused in making his defense or to expose him to the peril of double jeopardy. Vol. 52A C.J.S. Larceny § 99, p. 572; Davis v. State, 33 Ala. App. 68, 29 So.2d 877.
These appellants were charged by indictment with the crime of larceny, specifically, with the theft of a "Shaw-Walker Safe of the value of two hundred forty-two and no/100 dollars, the personal property of The Housing Authority of the City of Fayette, Alabama, a Corporation."
We are of opinion the State's evidence conclusively established the guilt of the defendants. The defendants presented no testimony.
Counsel argues in brief that the State failed to establish the ownership of the property alleged to have been stolen and to prove its value.
On the question of ownership and value, the State called Mr. Howard Stanley, who testified he was the Executive Director of the "Fayette Housing Authority, located on Spring Street in Fayette; that in his capacity as such Executive Director he bought all the equipment used in the "Housing Authority," subject to the approval of the board; that he saw the invoices on every item purchased, and based on such invoice for the safe he would say its value was $242.00; that the safe was used in the office of the Fayette Housing Authority and had a tag on it showing it was the property of the "Housing Authority of the City of Fayette" and that when he saw it at the City Hall after the theft the tag was still on it.
The argument in brief is that it would appear from the evidence that the safe was purchased by Mr. Stanley and was his own personal property. A further argument is that the evidence failed to show that the Housing Authority was a corporation, as shown in the indictment, "or that the Housing Authority or Fayette Housing Authority as mentioned in the testimony is the same as the Housing Authority of the City of Fayette, Alabama, a Corporation, as alleged in the indictment, hence, it is the appellant's contention that there is a fatal variance between the allegations in the indictment and the proof offered in support thereof."
We disagree. The testimony of Mr. Stanley was sufficient to prove the value of the safe. The import of his testimony was that he purchased the safe for the Housing Authority.
It is unnecessary for the State to prove corporate existence unless the defendant files the sworn plea required by Title 15, Section 315, Code of Alabama 1940. West v. State, 168 Ala. 1, 53 So. 277; Johnson v. State, 42 Ala. App. 611, 173 So.2d 817. No such plea was filed here.
To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to accused in making his defense, or to expose him to the danger of a second trial on the same charge. Johnson v. State, 34 Ala. App. 623, 43 So.2d 424; Helms v. State, 40 Ala. App. 622, 121 So.2d 104.
The defendants could not have been misled by the use of the terms Housing Authority and Fayette Housing Authority. It is clear from a reading of the statute creating municipal housing authorities that there shall be only one such authority for each municipality. Title 25, Section 7, Code of Alabama 1940.
The judgment is affirmed.
Affirmed.