182 N.W. 693 | N.D. | 1921
Lead Opinion
In July, 1920, in the district court of Sioux county, defendant was convicted of the crime of grand larceny and sentenced to imprisonment in the penitentiary for two years. Then, it seems, on December 30, 1920, the court made an order that the verdict and judgment be set aside and a new trial granted, subject to the ruling of the supreme court on the question of variance, which is certified to the court. From said order the state appeals. The motion for a new trial was based on a statement of the ease and on assignments of error, and this court is requested to pass upon and determine the following question: When the information charges the theft of one two-year old red cow, branded PP on left ribs, and one two-year old red muley steer, branded in the same way on the left ribs, and the proof shows that the property lost was one yearling heifer, branded on the right side, and one yearling bull calf, with horns, branded on the right side, was the variance prejudicial to the rights of defendant and fatal to the judgment so as to warrant the granting of a new trial?
The answer to the question is, “No.” It was not a fatal variance.
Of course the age and the exact description of the animals varied from day to day. The yearling heifer became a two-year 'old cow, and the bull calf became a steer, but each retained the Peter Blackhawk brand, and, aside from the brand, the animals were well identified by several witnesses, and it was conclusively shown that the defendant had twice branded each of the animals, and had done the branding so as to blur or obliterate the original branding. Clearly defendant has not been misled to his prejudice by any variation between the information and the proof. The jury was not misled and the court was rot misled.
The order for a new trial must be reversed and the judgment of conviction affirmed.
Concurrence Opinion
(concurring specially). The sole question presented in this case is whether, by reason of the difference between the description of the cattle contained in the information and that given in the evidence on the trial, there was a fatal variance.
After careful consideration of this question, I have come to the conclusion that, upon the record here, there is, under our statute, no such variance. Shortly after the commencement of the trial, the complaining witness was called as a witness for the prosecution. Almost at the outset of his testimony he was asked to, and did, describe the animals which he claimed the defendant had stolen from him. No objection was offered to such testimony on the ground that it was variant from the information, or upon any other ground. Later, when counsel for the prosecution suggested that the jury be taken down to the corral to view one of the animals which the defendant was charged with having stolen, and which the complaining witness had identified as one of those stolen from him, defendant’s counsel stated that he had no objection to the jury viewing such animal. So far as the trial is concerned there is nothing to indicate even the remotest chance that the defendant was prejudiced by the variance between the property de
Concurrence Opinion
I concur in the result.