Commonwealth v. Gavin

Ames, J.

As the evidence wholly failed to show any larceny of the bottles, the only question was as to the right to convict the defendant of the larceny of the liquors which were carried away in the bottles. The difficulty in so doing is that the offence proved does not correspond with the offence charged. It was unnecessary to allege that the liquors were contained in bottles, but the language of the indictment admits of no other construction than that it charges the larceny of bottles containing, or filled with, the liquors described. The effect of present *55 ing the charge in this form is to render that averment a matter of description, requiring to he proved with exactness, as in the illustration, given by the text-writers, that the charge of stealing a black horse is not supported by proof of the stealing of a white one. 1 Greenl. Ev. §§ 56, 65. Every allegation, whether it be necessary or unnecessary, and whether it be more or less particular, which is descriptive of the. identity of that which is legally essential to the charge in the indictment, must be proved strictly and with exactness. Commonwealth v. Wellington, 7 Allen, 299 . United States v. Howard, 3 Sumn. 12 . State v. Noble, 15 Maine, 476. The authorities are numerous, and many instances of the application of the rule are collected in 2 Archb. Crim. Práct. (7th Am. ed.) 356, and in 2 Russell on Crimes, (7th Am. ed.) 788. Perhaps the most extreme case of the kind is that of Alhenbraek v. People, 1 Denio, 80 , in which the charge was for stealing one white woollen flannel sheet, and the evidence was that it was made partly of cotton and partly of wool. A case more nearly resembling that now before us is State v. Moore, 11 Ired. 70 , in which it was held that a charge of larceny of two barrels of turpentine required proof that the turpentine was in barrels.

It was suggested in the argument that the larceny of a bottle of whiskey means merely the larceny of the whiskey contained in the bottle. But as bottles are not of a uniform size, the term bottle has no recognized and established meaning as a measure of quantity. In this view of the case, the indictment would be reduced to a mere charge of stealing a quantity of whiskey, and a quantity of brandy, without naming any definite quantity of either. We hardly need say that such an indictment could not be sustained. 2 Hale P. C. 182. Exceptions sustained.