State v. Brozich ( 1923 )

WANAMAKER, J.

1. Variance in criminal trials is generally a conflict of disagreement between the pleading, to-wit, the indictment, information or affidavit, and the proof, in a matter essential to the charge.

2. Under the common law any such variance was fatal to conviction; but in most of the states, particularly in Ohio, this common law rule has been radically changed by statute.

3. Where the variance is complained of as fatal because of a difference “in the name or description of a matter or thing” set forth in the indictment, Section 13582 requires that before such variance can be ground for an acquittal of the defendant the court must find “that such variance is material to the merits of the case or may be prejudicial to the defendant."

4. An indictment charging larceny of nine “rungs” of the value of $360, in connection with and in the same count with a charge of burglary, is neither fatal to the charge of burglary nor larceny, where the evidence shows unquestionably that the personal property stolen was not nine “rungs” but nine “rugs” of the value of $360.

Judgment of the Court of Appeals reversed, and judgment of the Court of Common Pleas affirmed.

Marshall, C. J., Jones, Matthias, Day and Allen, JJ., concur.