Opinion
No. 38516.
November 17, 1952.
1. Indictment — variance — amendment — questions not raised in trial court.
An indictment for grand larceny which alleged that the stolen property was that of Hattiesburg Hardware Stores when the proof showed that the owner was a corporation of that name, was amendable to conform to the proof, and where there was a plea of not guilty, and no demurrer by the defendant, no request for a directed verdict and no suggestion at any time of a variance between the indictment and the proof, there will be no reversal on the ground of a variance or because the State's instruction followed the language of the indictment.
Headnote as approved by Lee, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
Wingo Finch, for appellant.
The indictment does not allege that the Hattiesburg Hardware Stores was owned by an individual, a partnership, or was a corporation.
We submit to the Court that the rule in cases of larceny, as to allegation and proving ownership of the property charged to have been stolen, is that the owner must be definitely set forth in the indictment and supported by the proof. Hampton v. State, 99 Miss. 176, 54 So. 22.
Indictment for larceny must allege ownership of the property claimed to have been stolen. McGaha v. State, 173 Miss. 829, 163 So. 442; Robertson v. State, 180 Miss. 774, 178 So. 588.
"Where affidavit for petty larceny was void for failing to allege ownership of property stolen, defect could be availed of for first time on appeal." McGaha v. State, supra.
In the case just cited there was no demurrer to the affidavit and no motion in arrest of judgment, and upon the contention that the affidavit was fatally defective, the Court properly held that it was a defect of substance and not form and could be taken advantage of on appeal for the first time.
In the case of Hughes v. State, 74 Miss. 368, 20 So. 838, it was held that the failure to show ownership for property stolen is a defect of substance and not form and may be taken advantage of by motion and arrest of judgment as well as by demurrer before trial.
In the case of Reed v. State, 171 Miss. 65, 156 So. 650, it was held that a fatal defect in an indictment where affidavit may be availed of on appeal for the first time. The Court further held: "It is necessary for an indictment or affidavit to allege ownership of the property stolen, that being the essence of the offense, and a conviction upon such an affidavit is void, and the defect may be availed of here for the first time. The judgment of conviction will therefore be reversed, and the appellant will be held upon his appearance bond to await the action of the next Grand Jury of the County. Reversed and remanded." Sec. 931, Wingo, Mississippi Criminal Law and Procedure.
We therefore earnestly submit to the Court that since the indictment failed to designate whether the Hattiesburg Hardware Stores was owned by an individual, a partnership, or a corporation, the indictment was totally defective, even though no demurrer was filed thereto, nor no motion in arrest of judgment filed.
J.T. Patterson, Assistant Attorney General, for appellee.
Appellant cites several cases in support of his contention, relying principally upon the holding of this Court in the case of McGaha v. State, 173 Miss. 829, 163 So. 442, and other cases holding to the same effect.
A reading of the indictment herein clearly shows that the case at bar does not come within the rule announced in the McGaha case, supra. In the McGaha case, the affidavit charging the defendant with the crime of petty larceny wholly failed to allege ownership of the property stolen to be in any person and, therefore, a conviction under such charge was properly held by this Court to be void for the well-stated reason that the allegation of ownership of the property stolen is the essence of the offense, and the Court further held therein that, "The defect may be availed of here for the first time."
Such is not the case at bar.
This case finds parallel in the case of Horn v. State, 147 So. 311, (not reported in State Reports), wherein questions identical to the questions presented here were before this Court. In passing thereon this Court held: "The variance between the indictment and the proof in the name of the owner of the cow was amendable at the trial, it being clear from the evidence that the identity of the offense charged would not have been thereby changed. Objections to variances of this character must be made before verdict and, if not, are waived. Consensus tollit errorem." (Citing authorities in support thereof.) To the same effect is Jackson v. State, 189 Miss. 672, 198 So. 625.
In the Jackson case, supra, this Court held: "There was no doubt as to the witness, May, being the owner of the stolen property, under the testimony. He was fully examined by both the district attorney and the attorney for appellant as to his name, it clearly appearing that he was the identical person whose property was stolen. The district attorney, however, so far as the record shows, did not amend the indictment; but the trial proceeded to conviction and sentence, and at no stage of the trial was the specific objection made that there was a variance in the given name of the witness, May. Had such objection been made, the indictment could have been amended under Sec. 1289, Code 1930, (Sec. 2532, Code 1942), and the appellant not having raised the objection specifically, but having only sought to do so by peremptory instruction, is to be considered as having waived that objection." (Citing Horn v. State, supra, and other authorities.)
Such is the case at bar. There is no doubt as to the Hattiesburg Hardware Stores, Inc. being the owner of the property herein alleged to have been stolen. Had the district attorney moved to amend the indictment at any stage of the trial to conform with the proof, such motion would have been granted by the trial court under Sec. 2532, Code 1942. Such variance was not material to the merits of the case, and the defendant could not have been prejudiced thereby in his defense on the merits. It cannot be said that the appellant herein has been prejudiced in his defense by the indictment failing to show that Hattiesburg Hardware Stores is a corporation. Moreover, the proof in this record clearly shows that "Hattiesburg Hardware Stores," as alleged in the indictment, is one and the same as "Hattiesburg Hardware Stores, Inc."
No objection whatsoever was made by the appellant at any stage of the trial to the variance in the indictment and the proof as to the Hattiesburg Hardware Stores being a corporation organized under the laws of the State of Mississippi.
Appellant, having failed to object to the variance between the indictment and the proof before verdict was rendered, thereby waived such objection.
From a conviction for the crime of grand larceny and a sentence of two years in the state penitentiary, Robert Lee Wiggins appeals.
Two errors are assigned: (1) The indictment is totally defective because the property stolen was alleged to be "the personal property of Hattiesburg Hardware Stores"; and (2) the instruction for the State, which followed the language of the indictment, was erroneous.
The proof showed that the Hattiesburg Hardware Stores is a corporation, existing under the laws of Mississippi.
On arraignment, the appellant plead not guilty. No demurrer to the indictment was filed. There was no request for a directed verdict either after the State rested, or when both sides rested. There was no suggestion at any time of a variance between the allegations of the indictment and the proof.
If the District Attorney had sought to amend the indictment in order to show that the Hattiesburg Hardware Stores is in fact a corporation, or if a demurrer had challenged the sufficiency of the allegation as to ownership, or if attention had been called to the variance between the allegations of the indictment and the proof, the trial court, under Section 2532, Code 1942, had authority to order the amendment of the indictment accordingly.
In Jackson v. State, 189 Miss. 672, 198 So. 625, the larceny indictment alleged that the owner of the stolen property was Amos May, whereas May, in his testimony, gave his name as Ambers or Ambus. The District Attorney did not ask to amend, but the case proceeded to conviction and sentence without any specific objection that there was a variance in the name of the owner. The Court there said: "Had such objection been made the indictment would have been amended under Section 1289, Code of 1930; and the appellant, not having raised the objection specifically, but having only sought to do so by peremptory instruction, is to be considered as having waived that objection. This is specifically held in former decisions of this Court."
In Thomas v. State, 103 Miss. 800, 60 So. 781, the accused was indicted for, and convicted of, embezzling property of Henry Jamerson, when the proof showed that the property belonged to Henry and James Jamerson. No question was raised in the trial court. It was first assigned in this Court, and the Court responded as follows: "The error complained of was not made a ground for special exception in the trial court, and it cannot be made here. Section 4936, Code 1906." (Now Section 1987, Code 1942.) See also Horn v. State, 165 Miss. 169, 147 So. 310; Hoskins v. State, 106 Miss. 368, 63 So. 671.
Appellant cites Hampton v. State, 99 Miss. 176, 54 So. 722; McGaha v. State, 173 Miss. 829, 163 So. 442; and Robinson v. State, 180 Miss. 774, 178 So. 588.
In the Hampton case, supra, the accused was charged with the embezzlement of funds of the American Express Company, a Corporation, whereas the proof showed that the express company was a partnership. The question of variance was properly raised in the trial court. The opinion pointed out that the American Express Company, a Corporation, was a materially different concern from the American Express Company, a Partnership, and that "an indictment for embezzling the funds of one cannot be sustained by proof that the funds belong to the other."
In the McGaha case, supra, the affidavit failed to charge that the property, which was stolen, belonged to anyone. The Court held that ownership of the property stolen is the essence of the offense, and, without such allegation, a conviction upon such an affidavit is void.
In the Robinson case, supra, the State simply failed to prove that the recovered brass was in fact stolen from the E.L. Bruce Lumber Company as charged in the indictment.
Hence, it will be seen that the foregoing cases on which appellant relies do not constitute authority to sustain the position which he contends for here.
Affirmed.
McGehee, C.J., and Alexander, Kyle and Ethridge, JJ., concur.