People v. Hughes

By the Court, Rhodes, C. J.: The defendant was indicted for stealing “ one gold watch of the value of two hundred dollars, * * * of the goods, chattels, and property of Stephen F. Merritt.” On the trial, in support of his plea of former acquittal, he offered in evidence an indictment charging him with the larceny of “ one gold watch of the value of two hundred dollars, * * * of the goods, chattels, and property of Samuel F. Merritt;” and offered to prove by the records of the County Court and oral testimony, that he was charged by that indictment with stealing the identical watch mentioned in the pending indictment; that.he was placed on trial upon such indictment; that Stephen F. Merritt, who, in this case is alleged to be the owner of the watch, testified that his true name was Stephen F. Merritt; that because of the variance between the allegation and the proof, as to the ownership of the watch, the Court instructed the jury to acquit the defendant on the ground of such variance; and that a verdict was rendered by the jury as directed by the Court, and the [236]cause was ordered to be resubmitted to the next Grand Jury. The Court excluded the evidence.

It is provided by section three hundred and five, Criminal Practice Act, that “ if the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or upon an objection to the form or substance of the indictment, it shall not be deemed an acquittal of the same offense.” If the variance be immaterial it should be disregarded; and if the defendant be in fact acquitted, on the ground of an immaterial variance, he cannot be again prosecuted for the same offense. The question under the plea .of former acquittal is: would the evidence which is necessary to support the second indictment, have been sufficient to procure a legal conviction on the first? The error of the Court or jury, in regarding as material, a variance between the allegations and proof) will not render the acquittal less available and conclusive as a bar to a subsequent prosecution.

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 the text books and the cases therein cited. But the statute of this State provides (Cr. Prac. Act, Sec. 243) 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 purposes of this case to define the meaning of the terms-“private injury ” and “person injured ;” for the offense,is not described in the indictment in this case with sufficient