22 S.D. 30 | S.D. | 1908
On July 9, 1906, when the information in this case was filed in the circuit court, Gay Grant’s name was not indorsed thereon. On January 16, 1907, when the cause was called for trial, the state’s attorney asked leave to indorse Grant’s name, stating that it was not known to him when the info*, mation was filed. Defendant objected on the ground that it appeared from the papers on file in the case that a subpoena was issued by the state’s attorney for the witnesses, before the then present term of court; that the witness was known to> the state’s attorney before the commencement of the then present term, and that no notice was given to defendant or his counsel that the stare’s attorney would ask to have the witness’ name endorsed or that* his testimony would be used, before the cause was called for trial. The objection was overruled and the witness’ name endorsed. When Grant was called as a witness, defendant objected to his testimony, on the ground that his name had not been endorsed in the manner required by law, and that the files in the case showed that the witness was known to the state’s attorney before the latter asked permission to make the endorsement. This objection also was overruled, and the witness gave testimony prejudicial to'the defendant. _ When these objections were overruled, there was in the files of the case a subpoena issued December 24, 1906, for Grant and others as witnesses in the case, which was endorsed by the judge, requiring the attendance, of the witnesses named therein, and which, was returned by the sheriff as having been served upon each of such witnesses and filed with the clerk January 14, 1907, but neither the subpoena nor files was offered in evidence or called to the attention of the court otherwise than by the objection first above stated. Defendant’s objections did
The defendant was convicted of grand larceny. The property alleged to have been stolen wais described in the information before the examining magistrate and in the circuit court as “four horses,” of tire value of $300, the property of W. A. Porch, v.hile the evidence at the preliminary hearing and on the trial disclosed the taking of four geldings, of the value of $300 the property of W. A. Porch. Dn the hypothesis of a fatal variance between the pleadings and proof, it is contended the court erred in overruling defendant’s motion to ¡set aside the information, his demurrer to the information, and his objection to the introduction of any evidence. If there had been a variance, the proper procedure would have been a request to charge that the defendant could not be convicted under the allegations of ,the information for the larceny of geldings; but there was no material variance. Tarceny is
The contention that the judgment in this case would not bar a prosecution for the larceny of the same animals if they were alleged to be geldings in the second information is untenable. The rule would be the same in one case as the other If, for the purposes of this action, the word “horse” should be taken in its genei'ic sense, it would have the same meaning when this record would be introduced in evidence in support of the pica of former conviction. Then, as now, it would include geldings.
And, Bough the description of the property might have been more definite, defendant’s conviction was not invalid, for the reason that he was informed by the proceedings before the examining magistrate as to the particular animals involve/!, and could not have been prejudiced in respect to any substantial right. Rev. Code Cr. Proc. § 569. But there was no departure from prescribed forms of pleading. The information was 'sufficient, in that the act charged as the offense was clearly and distinctly set forth in ordinary and concise language, in such a manner as to enable a person of common understanding to know what was intended (Id. § 229), and its allegations, giving to the word “horse” either its ordinary or legal meaning, included the property shown by the evidence to have been stolen.
The judgment of the circuit court is affirmed