Underwood v. State

72 Ala. 220 | Ala. | 1882

BRICKELL, O. J.

An indictment for larceny must state, the ownership of the property charged to have been stolen, or excuse the omission by proper averments. When the ownership is alleged, a variance between the allegation and the proof entitles the accused to an acquittal, though it will not bar a new indictment describing or averring the ownership properly. In this case, the name of the owner of the thing stolen is averred to be Ann Fooley, while the evidence was that the true name of the owner was Ann Foley, so spelled and pronounced by her, and never spelled or pronounced as Ann Fooley.

The mere mis-spelling of the name of the accused party, or of the name of a third person whom it may be necessary to mention, itself will not vitiate an indictment, or produce a fatal variance, unless it is apparent that the mis-spelling causes a material change in the pronunciation or sound of the two names. Whether one name is idem sow ms with another, is not a question of orthography, but of pronunciation, “depending less upon rule than upon usage; ” and when it arises in evidence on the general issue, is a question of fact for the determination of the jury, not for the decision of the court. 1 Whart. Or. Law, § 597; Commonwealth v. Donovan, 13 Allen, 571. The motion to exclude the evidence, and the instruction requested, were but efforts to withdraw the inquiry from the consideration of the jury, and were properly overruled.

The recent, actual, unexplained possession of stolen goods, is a fact from which the jury may infer the complicity of the defendant in the larceny. Whether it is sufficient evidence of guilt, is a question for their determination. There may be cases in which it would stand alone, unconnected with any other criminating fact, and from it the jury would not probably infer guilt. Whether the inference is just and reasonable — • whether the fact satisfies the minds of the jury as reasonable men, beyond all reasonable doubt, of the guilt of the accused — - the court can not determine. The charge requested upon this point assumes to declare the sufficiency of the evidence, and was an invasion of the province of the jury. There was no error in its refusal.

Affirmed.