People v. Poucher

Inasmuch as the jury found a verdict of guilty, the prisoner was convicted of grand larceny, and sentenced for such offense, as for the offense of grand larceny in the second degree, section 534 of the Penal Code. Therefore, it is important to inquire whether the conviction of the defendant of grand larceny in the second degree, was regular and in accordance with law.

The indictment charged the defendant ■ with obtaining one ring of the value of $8, and certain coins. There was proof that,he obtained the ring, under.such circumstances as to bring the case within the provisions of section 528 of the Penal Code. There was no proof of obtaining the coin named and described in the indictment, or of any other coin, which would amount to more than $8.25. There was, therefore, no proof of obtaining the things named in the indictment, of a value beyond $8.25, and hence the proof sustained the indictment only to the extent named, and that valuation would carry the degree of the defendant’s crime within the definition of petit larceny.

But the respondents were allowed to substitute for the coin named another thing. They did not ask to make an amendment to the indictment which would change the description of the thing named. The name of the thing described in a general sense was coin; in a specific sense, eagle, half eagles, silver dollars. Mo proof was furnished that the name of the thing described was erroneous or imperfect.

But it turned out in proof that the defendant did not obtain the things named and that he did obtain currency, an entirely different thing. Section 293 of the Code of Criminal Procedure, has lodged with the court a new power in respect to indictments, and authorized their amendment in certain cases where there is a “ variance between the allegation therein and the proof in respect to time, or in the name or description of any place, person, or thing.” . If there had been an erroneous description of the coins named in the indictment, doubtless the description might have been amended and been made to conform to the proof. But we do not see how one thing named, to wit, *547coin, can be stricken out, and another thing, to wit, currency, be substituted in place of the thing stricken out, under the guise of amending the description of the thing named.

In short, we are of the opinion that the section does not authorize an amendment of an indictment which charges the larceny of coin enumerated, by inserting an allegation of currency, or of “ bank-bills, lawful money of the United States of a kind, number and denomination unknown, and upon a bank unknown.”

Therefore we say the amendment was not warranted by sec-» tion 293 of the Criminal Code, and its allowance was error, prejudicial to the defendant. If the amendment had not been allowed, the grade of the offense would have been that of petit larceny; with the amendment allowed, the general verdict established an offense of the grade of grand larceny in the second degree.

Numerous other exceptions were taken in the course of the trial, which need not be examined, as we are of the opinion that a new trial should be granted for the error we have pointed out.

Judgment and conviction, and order amending the indictment, and the order denying a new trial reversed, and proceedings remitted to the Court of Sessions of Onondaga county, with directions for a new trial.

Smith, P. J., and Barker, J., concur.