25 N.M. 224 | N.M. | 1919
OPINION OP THE COURT.
Appellant was indicted at the May term, 1916, of the district court of San Miguel county, charging him with unlawfully buying and receiving stolen property. The property was alleged to be that of the Atchison, Topeka & Santa Fe Railroad Company, a corporation. At the following June term he was acquitted. At the same term he was reindicted by the grand jury for the same offense, but the property was charged to be the property of the Atchison, Topeka & Santa Fe Railway Company. Upon this indictment the appellant was tried and convicted and sentenced to the penitentiary, from which judgment this appeal was taken.
In this action the district court was evidently correct. A former acquittal under an indictment for buying and receiving stolen property charged to be the property of “A” is no bar to a prosecution for buying and receiving the same property charged to be the property of “B.” The allegation of ownership is an essential allegation in indictments for buying and receiving stolen property, and a departure in the proof from the allegations in the indictment is necessarily fatal to the proceedings. The difference in the name between “railroad” and “railway” is as great a difference as between “Jones” and “Smith.”
In United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L. R. A. (N. S.) 1181, the first indictment charged the defendant with the embezzlement of a letter containing an article of value, under the federal statute, and charged the article to be a draft for $31. The second indictment charged the article to be a war settlement warrant for $31.57. The court held that the trial upon the first indictment was not a bar to the second indictment, trial, and conviction, because he could not have been convicted under the first indictment upon the proof adduced in the second trial. The court said:
“We consider tbis case within the principles just quoted and within the well-recognized rule in cases of this kind that the plea will not lie where there is material variance, so that proof of the material fact charged in the second indictment would not have been admissible to secure a conviction under the first.”
Just so in the present ease. The appellant could not have been convicted in the first case upon the proof of the correct name of the railway corporation. The district court relied upon this case in determining the plea, as appears from the transcript. See in this connection 16 C. J. 243, § 380, where it is said:
“The effect of a material variance between the allegations of the indictment and the proof is to entitle the defendant to an acquittal on the particular indictment, but he is still liable to be tried for his crime.”
See, also, as to the materiality of the averment of ownership, Aldrich v. People, 225 Ill. 610, 80 N. E. 320; Commonwealth v. Billings, 167 Mass. 283, 45 N. E. 910; People v. Struble, 275 Ill. 162, 113 N. E. 938.
We find no error in the record and the judgment should be affirmed, and it is so ordered.