206 S.W.2d 805 | Tenn. | 1947
These two defendants were convicted of housebreaking and larceny, with their maximum punishment fixed at five years in the penitentiary.
The defendants do not make any question as to the facts but contend that the trial judge erroneously overruled a plea ofautrefois acquit.
It appears that at the October term, 1946, the defendants were indicted in the circuit court of Hamblen County by an indictment charging them with housebreaking and larceny. The building claimed to have been broken into was set out in the indictment as the business house of Leon Clifton, and the property claimed to have been taken was alleged to be that of the said Leon Clifton.
At the trial it developed that there was a variance between the proof and the indictment with reference to the ownership of the building, as well as that of the personal property, and a verdict of not guilty was returned. *598
At the same term of court, and on the following day, another indictment was returned against the defendants containing two counts and charging them with breaking into the storehouse of Clifton's, Inc., a corporation. The State concedes that the building broken into and the property alleged to have been taken were the same in each of the indictments. The trial judge overruled the plea.
In Hite v. State,
". . . But, if the variances are in those things which are material, autrefois acquit cannot be pleaded in bar — either the first indictment was ineffectual, and therefore the acquittal of no avail, or the record will prove not applicable to the evidence, and therefore the objection is needless; . . ."
Thus, if there be a material variance between the averments, the two prosecutions are separate as a matter of law.
In 22 C.J.S., Criminal Law, sec. 268, the author states in substance that if the accused be acquitted upon the ground of material variance he cannot plead the acquittal as a bar, for he has never been in jeopardy, and when tried on a new indictment the crime alleged is not the same crime as in the former indictment.
In the present case the first indictment placed ownership in an individual, and the second indictment placed ownership in a corporation in which the individual is a stockholder.
In Parker v. Bethel Hotel Co.,
In Chapple v. State,
The case of Lowry v. State,
The only other contention is that the trial court should have granted a new trial on account of an alleged variance between the owner of the building entered as averred in the indictment and the proof. The ownership of the building was averred in the indictment to be in "Clifton's, Inc." The evidence shows that the building belonged to an individual but that it was occupied by Clifton's, Inc., under a lease contract. *600
It is well settled that burglary or housebreaking is not an offense against the ownership and legal title, and that ownership of the building alleged to have been burglarized not only may but should be laid in the actual occupant. 9 C.J., Burglary, sec. 80, pp. 1044, 1045; 12 C.J.S., Burglary, sec. 38.
It results that the assignments of error are overruled and the judgment is affirmed.
All concur. *601