The defendant William Nelson and Joseph Sutter were jointly indicted for burglary and larceny. Sutter was acquitted, and Nelson was found guilty of both offenses.
While exceptions were taken to the instructions given by the court, no complaint was made of them in the motion for anew trial. Error in giving instructions must be made a ground for new trial in the motion filed for that purpose, and if this is not done the instructions cannot be reviewed by this court. It is not enough that exceptions are saved at the time the instruc.tions are given. The reason of the rule is, that the trial court must be called upon to correct its own errors made during the progress of the trial, and this is done by sрecifying the grounds upon which a new trial is asked. It is manifest from an inspection of this bill of exceptions that it was preparеd with a view of presenting only the questions of variance, and it would be gross injustice to the state to review the instructions under such circumstances.
The substance of the charge in the indictment is, that the defendants broke into the dwelling-house of Elizabeth P. Van Duzer, аnd stole therefrom one lot of jewelry of the value of forty dollars, and one gold watch of the value of fifty dollars, all the property of
Elizabeth P. Yan Duzer being a married woman living with her husband in a house rented by him, there can bе no doubt but the house was the dwelling-house of her husband, and the ownership should have been so laid in the indictment. It is equally clear that Gertrude Van Duzer was the owner of the property stolen, and that Elizabeth P. Yan Duzer was neither the general nor speciаl owner of it. There is, therefore, a variance between the indictment and proof, both as to the ownership of the dwelling-house, and as to the ownership of the property stolen therefrom. At common law such a variance would be fatal. 1 Russell on Crimes [ 7. Am. Ed.] 826. “Ownership,” says Bishop,' “must be proved as laid, because it is descriptive of the identity of the offense, ' distinguishing it from . all other instances.” ‘1 Bishop Crim. Procedure [3 Ed.] sec. 488 5. “ If a burglary be alleged to have been committed in the dwelling-house of J. G., and the faсt is that it is the dwelling-house of J. S., the defendant must be acquitted for the variance.” Whart. Crim. Ev. [8 Ed.] sec. 94. So, too, to sustain an indictment for larceny, the goods alleged to have been stolen must be proved to be either the absolute or special property of
These citations are sufficient to show that the variance would be fatal at common law, both as to the charge of burglary and as to the charge of larceny, and it only remains to be seen whether the defect in the proof is curеd by section 1820 of the Revised Statutes, 1879, which is the same as section 4114, Revised Statutes, 1889, and which provides: “Whenever, on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname or both Christian name and surname * * * of аny person whomsoever therein named or described, * * * or in the ownership of any property named or described therеin, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall bе had shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendаnt.”
Under this statute it has been held on indictments for murder^ rape and larceny that a variance in the Christian name or surname of the person killed, assaulted, or the owner of the property stolen, would not work an acquittal of the defendant, unless the triаl judge found that 'the variance was material and prejudicial to the defense. State v. Sharp,
In reaching this conclusion we have not overlooked State v. Horn,
The judgment is affirmed.