McAlpin v. State

Reoejvikg stolen goods. Ownership must he proven as laid in indictment. In a prosecution for receiving stolen property, the ownership of-the property alleged to have been stolen must be proven as laid in the .indictment. .

Appeal from circuit court of Jones county. Hon. R. S. Hall,- Judge. A. N. McAlpin was convicted of receiving stolen property, and he appeals. The learned attorney-general in Ms brief states that the first assignment of error of appellant can avail him nothing for the reason that the American Railway Express Company and the American Express, Company are one and the same corporations. I assume from his argument, therefore, that if these companies be separate and distinct legal entities, then the proof is insufficient to warrant a conviction of the charge in the indictment. Of course, fairness would impel counsel to admit that the record is Avholiy silent as to the identity of the “American Railway Express Company, a corporation” and the “American Express Company, a corporation” and when he makes the statement that they are the same he is going out of the record to state it. If we were permitted to go out of the record to state the facts upon this point, we could state that these are two separate and distinct companies each performing its ovm business. This court is presumed to know what its own records disclose and avüI take judicial knowledge of such facts. Reed v. Watertury National Bank, 135 111. App., 165, 83 N. E. 188,. In the case of Hampton v. Plate, 54 So. 722, at page 728, this language Avas used by this court: “The indictment charges the appellant Avith embezzling the funds of the American Express ¡Company,, ‘which is duly incorporated’ while the. evidence for the state slioAved that the American Express Company was not a corporation but a partnership.” This is tantamount to an adjudication by this court that the American Express Company is a partnership or was so at the time of the rendition of this opinion. However, this is beside the question. There is no proof that the companies are one and the same. Appellant assigns three errors upon which a reversal is sought. It is first urged that there was a fatal variance in the indictment, and in the proof in that it was not proved that the stolen tires Avere the property of the American Railway Express Company, a corporation. The indictment averred that the tires Avere the property of the American Railway Express Company, a corporation, but the proof shoAved that the tires were stolen from the American Express Company, a corporation. This assignment of error, if submitted, can avail the appellant nothing for the reason that the American Railway Express Company and the American Express Company are one and the same corporation. Ownership' of the stolen property Avas sufficiently proved in accordance Avith the allegations of the indictment. That the proof Avas sufficient in this case to sustain the allegations of the indictment as to the oAvnership of the stolen property is sustained by the folloAving cases from this court: Foster v. State, 52 Miss. 695; Blumenberg v. State, 55 Miss. 528; Hayiooocl v. State, 47 Miss. 1; Garvin v. State, 52 Miss. 207, Knight v. Sftate, 64 Miss. 802; 2 So. 152; MaeJcguire v. State, 91 Miss. 151, 44 So. 802. It is immaterial from whom stolen goods are received, provided only they are stolen goods AAdien they are received. 34 Cyc. 518. In Vaughan v. State (Alabama), 81 So. 417, the court held that there Avas no fatal variance where the stolen goods were alleged to be the property of the railroad, Avhere the proof shoAved that the railroad Avas under Federal control. The reason upon Avhich assignment of error under discussion is based is this: That the accused is entitled to know the nature of the crime with Avhich he is charged so that he may prepare his defense at the trial. The accused in this case was sufficiently informed of the charge against him "by the language of the indictment. He kneAV that he would haAre to defend himself .on the charge of receiving property Avhich Avas stolen from the American Express Company. He kneAV that the American Express Company and the American Railway Express Company Avere one and the same corporation. There could be no confusion in his mind nor in tlie mind of his counsel as to the exact nature of the crime with which he was charged. If the indictment had alleged that the stolen property had belonged to a corporation, and the proof had shown that the stolen property had belonged to an individual or an entirely different corporation from that alleged in the indictment, the case would be different but indictment and proof showed no such variance. The Second assignment of error brings forward a complaint that the proof did not show that the American Railway Express Company was a corporation. The proof did show, however that the American Express Company was a corporation (see testimony of W. R.- Grant, record p. 21). This was sufficient. No complaint was made by the defendant when proof was offered that the American Express Company was a corporation and that the stolen goods were the property of the American Express Company. If complaint had been made, the court would have allowed an amendment under section 1266, Hemingway’s Code. Identity of name is not essential. Identity of the offense and of the .person is essential. Plumingberg v. State, supra.