83 Minn. 432 | Minn. | 1901
The defendant was indicted of the crime of grand larceny in the first degree. The crime consisted in unlawfully, feloniously, and in the nighttime stealing and carrying away from the person of Tony Barrom $240, his personal property. At the close of the state’s case defendant rested without the introduction of any testimony, and requested the court to instruct the jury to return a verdict in favor of defendant, upon the ground of variance between the name of the prosecuting witness and the person alleged in the indictment as the owner of the property, whose true name appeared in the evidence to be “Antonio Barone.” The court refused the request, and the cause was submitted to the jury, who returned a verdict of guilty of grand larceny in the second degree. Thereupon defendant moved in arrest of judgment, and the motion was denied. Appeal comes to this court from the judgment entered on the verdict.
The state relies mainly upon G-. S. 1894, § 7245, which reads as. follows:
“When the offense involves the commission of, 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, is not material.”
We are of the opinion that this section is not applicable in a case of this kind, but, since there is some uncertainty as to how it has been regarded by this court in former decisions, an examination of them seems necessary. The first instance in which this statute was reviewed is in the case of State v. Boylson, 3 Minn. 325 (438). In that ease a person was indicted for an assault with intent to kill M., but from the evidence it appeared doubtful whether the assault was upon M. or T. The court charged the jury to the effect that, if they believed the defendant committed the assault upon either M. or T., they might convict. It was held by this court that the section referred to had no application to that case, and that decision rests upon the principle that the offense would not be described without setting out the name of the person upon whom the assault was committed; that is¿ the name of the injured person was a necessary part in defining the offense. This case is referred to, and doubted, in State v. Ruhnke,
But a distinction is to be made between the offense described in State v. Grimes, supra, and the offense set forth in the indictment in the case now under consideration. In the former case the essence of the offense was the burning of the barn, and, as descriptive of the barn, ownership and possession were alleged. Possession and ownership were not necessary to a description of the crime charged, and consequently, in that instance, the variance was immaterial. In a case of larceny, however, the crime itself is defined by the statute as the taking of property from the true owner thereof with intent to deprive or defraud him of it, and grand larceny in the first degree is such taking from the person of another in the nighttime. The state has so described the offense in this indictment. It was the taking of personal property belonging to Tony Barrom from him in the nighttime. It follows that the name of the person whose property it was, and from whom it was taken, is a necessary part of the description of the offense. Had it appeared from the evidence that the property belonged to some other individual, or was taken from some one other than the person described in the indictment, there would have been a clear failure of proof, and a fatal variance, because there would have been proof of an offense other than the one described in the indict
But it is by no means conclusively shown that the witness in this case, who testified and gave his name as “Tony Baron,” was not the same person described in the indictment as “Tony Barrom.” When called by the name of “Tony Baron,” he responded to it. The only difference between the two names is in the last syllable, and the sound of the final letters “m” and “n” is so similar that one might very easily be taken for the other. His baptismal name is not decisive of the question. The spelling and pronunciation of a person’s name may vary in different localities, and with different individuals, especially of foreigners, whose native names are not readily adjusted to the English language. In this respect the case is similar to that of State v. Johnson, 26 Minn. 316, 3 N. W. 982, where a prosecuting witness was described in the indictment by the name of “Mary Kurkwiski,” and upon the trial it was found that her name was pronounced as if spelled “Kurkowski.” With reference thereto the court said that judicial notice could not be taken of the orthography or proper pronunciation of names in a foreign language. To this effect,' see also Johnson v. State, 46 Ga. 269, and Gahan v. People, 58 Ill. 160. We conclude, from the fact that the prosecuting witness was commonly known as “Tony,” and answered to the name of “Tony Baron,” that such name was so similar to “Tony Barrom” a.s to be easily mistaken for it, and was sufficient to sustain a finding that they were indicative of the same person.
Judgment affirmed.