State v. Brozich

WANAMAKER, J..

Epitomized Opinion

.' Brozieh was tried in Cuyahoga county on an indictment charging burglary and larceny. •He was found guilty, and sentenced to the penitentiary for a'period of not less than .two years.- The'indictment was-in the usual form charging that he'' entered a storehouse belonging to one Shainker. and that he stole and car-r'i'pd' away ;9 -:“rungs” to ■ the value of $360. ■Efroiv. was.-pros'ecuted td’-.the’Court of Appeals '■íflífen'the'gri’diihd"that thqre was a fatal vari-í'ahcei.hrtjíját 'the indictment charged the stealing of “rungs” instead of “rugs.” The Court of Appeals found- this variance fatal and error was then prosecuted to the Supreme Court. In reversing the judgment of the Court of Appeals, the Supreme Court held:

1. “Variance” in criminal trials is generally a conflict or disagreement between the pleading and.the proof in a matter essential to the charge.

2. Under the common law rule 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. Under GC. 13582 a variance must be material or prejudicial to the defendant before such variance can be ground for an acquittal.

4. The use of the word “rungs” instead of “rugs” in the indictment is not a fatal variance.