Crosky v. State

ShackreEord, J. The plaintiff in error, Jacob Crosky, was indicted, tried and convicted in the Circuit Court of Dade county of the crime of breaking and entering “the store-house and bar-room of one W- N. Woods with intent to commit a felony, to-wit: with intent to steal, take [123] and carry away certain goods and chattels therein being, of the value of twenty-five dollars, of the property, goods and chattels of the said W. N. Woods.” The plaintiff in error was sentenced to confinement at hard labor in the State penitentiary for a period of five years, and seeks reversal here by writ of error. Three errors are assigned, but all present the single question as to whether or not the testh mony was sufficient to support the verdict, and hence they may be considered together. Setting forth the testimony in detail would be profitless. Suffice it to state that there is considerable conflict therein, but it plainly appears therefrom that, although the building alleged to have been broken into and entered by defendant was the property of the said W. N. Woods, as charged in the indictment, the goods and chattels therein contained were not the property of the said Woods. Does this fact constitute such a variance between the crime charged in the indictment and the evidence as to make it fatal and warrant a reversal? As was said by this court in Charles v. State, 36 Fla. 691, 18 South. Rep. 369, “It is not necessary in an indictment under our statute for breaking and entering a building in the night time with intent to commit a misdemeanor, by stealing, to allege that the property intended to be stolen was actually in the building at the time of the breaking and entry thereof.” In Jones v. State, 18 Fla. 889, it was held that “in an indictment for burglary in the night time with intent to commit larceny of money, goods and chattels, it is not necessary to aver what specific money, goods or chattels were intended to be stolen, or the name of the owner thereof.” In Pells v. State, 20 Fla. 774, it was held that “the rule is well-settled that the ownership of the building so burglariously entered must be alleged in the indictment.” Also see Givens v. State, 40 Fla. 200, 23 South. Rep. 850; Leslie v. State, 35 Fla. 171, 17 South. Rep. 555; Kennedy v. State, 31 Fla. 428, 12 South Rep. 858. While in an indictment for the crime charged in the indictment in the case at bar it was not necessary to [124] allege the name of the owner of the articles which the defendant intended to steal, yet where the said articles were alleged therein to be the property of a certain named person we are of the opinion that it was incumbent upon the State to prove said ownership as laid. Having failed so to do constitutes a fatal variance, for which the judgment must be reversed. See Commonwealth v. Moore, 130 Mass. 45; Neubrandt v. State, 53 Wis. 89, 9 N. W. Rep. 824; 2 East’s Pleas of the Crown, 514; 1 Bish. Crim. Proc., secs. 488, 581, 582; Underhill’s Crim. Ev., secs. 32 and 33; Wharton’s Crim. Ev., sec. 94;.l Russell’s Crimes (7th Am. Ed.), 825. For an interesting discussion of the question of variance, also see Burrett v. Doggett, 6 Fla. 332. As the case will have to be reversed upon this point, it becomes unnecessary for us to consider or discuss the evidence any further or to express any opinion thereon. For the error found the judgment of the Circuit Court must be reversed and a new trial awarded, and it is so ordered. The costs of this appellate proceeding are to be taxed against the county of Dade. Tayror, C. J., and Hocicer, J., concur. Carter, P. J., and Maxwerr and Cocicrerr, JJ., concur in the opinion.