Summary
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.
Summary of this case from Wiggins v. StateOpinion
No. 34129.
November 1, 1940.
INDICTMENT AND INFORMATION.
In trial for grand larceny, defendant, making no specific objection to variance between indictment and prosecuting witness' testimony as to his given name before moving for peremptory instruction to acquit on such ground, "waived" such objection (Code 1930, sec. 1289).
APPEAL from the circuit court of Lamar county; HON. J.C. SHIVERS, J.
Earle L. Wingo, of Hattiesburg, for appellant.
We take the position that there was a fatal variance between the allegation of the indictment and the proof offered by the state. Moreover, because of this fatal variance the conviction should not be sustained.
The state must allege in the indictment the name of the true owner of the property claimed to have been stolen, and the proof must show with absolute certainty the name of the alleged owner set forth in the indictment.
When name of owner is stated in indictment for larceny proof must show that thing allegedly stolen was property of person named as owner.
Robinson v. State, 178 So. 588.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
There appears to be a variance as between the allegations and the proof. However, the record fails to disclose that this matter was ever called to the attention of the trial court. Hence, it cannot be raised here.
Horn v. State, 165 Miss. 169, 147 So. 310; Hale v. State (Miss.), 176 So. 603; Hoskins v. State, 106 Miss. 368, 63 So. 671; Thomas v. State, 103 Miss. 800, 60 So. 781.
The appellant was tried on a charge of grand larceny in the Circuit Court of Lamar County, convicted and sentenced to serve three years in the state penitentiary, from which judgment he took this appeal.
The only assignment of error is that the Court erred in refusing appellant a peremptory instruction to find him not guilty. The argument is based upon the fact that the indictment charged that the owner of the stolen property was Amos May, whereas, in the trial of the cause, May, testifying as a witness, gave his name, not as Amos, but as Amburs, commonly called Ambus. There was proof by this witness that he was summoned before the grand jury under the name of Amos May, that he appeared, was examined and testified without disclosing the variance between Amos and Amburs.
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 the 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 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. See Horn v. State, 165 Miss. 169, 147 So. 310; Hale v. State, (Miss.), 176 So. 603; Hoskins v. State, 106 Miss. 368, 63 So. 671; Thomas v. State, 103 Miss. 800, 60 So. 781.
It follows from what we have said that the judgment is affirmed.
Affirmed.