Summary
In People v. Herrin (1938), 295 Ill. App. 590, 15 N.E.2d 598, the charge alleged the Christian name of the owner of the subject property and the proofs showed only his initials, whereas the defendant raised no question of the owner's identity at the trial; defendant there was not permitted to raise that question on appeal.
Summary of this case from People v. TuckerOpinion
Opinion filed June 6, 1938.
1. APPEAL AND ERROR, § 1014 — assignments of error laid in abstract, but not argued deemed waived. Where nine assignments of error were laid in abstract, but only two were argued, remaining seven were regarded as having been waived.
See Callaghan's Illinois Digest, same topic and section number.
2. CRIMINAL PROCEDURE, § 124fn_ — when conviction not set aside for variance between name alleged in indictment and proof. Conviction for petit larceny would not be set aside, because allegation in indictment alleged Christian name of owner of stolen property and proof showed only his initials especially where question of variance was not raised in trial court.
3. CRIMINAL PROCEDURE, § 141fn_ — variance may not be set up as ground for reversal for first time on review. In criminal prosecution, to be available as ground for reversal, matter of variance between allegation and proof must be raised upon original hearing, and cannot be set up for first time upon review of cause.
4. CRIMES AND PUNISHMENT, § 21fn_ — when intoxication defense to crime of larceny. Where proof shows that at time of taking defendant was so insane, whether from intoxication or other cause, as to be incapable of forming the criminal intent to steal, then he is not guilty.
5. CRIMES AND PUNISHMENT, § 21fn_ — when evidence insufficient to show defendant incapable of forming criminal intent to steal. Evidence in prosecution for petit larceny, that defendant, shortly before property was taken, had been imbibing whisky and beer to excess, and that he showed effects of such drinking, was insufficient to show that defendant was incapable of forming criminal intent to steal where there were other circumstances in testimony tending to show that he was more or less, at such time, conscious of his acts and conduct.
Error by defendant to the County Court of Saline county; the Hon. LYNNDON M. HANCOCK, Judge, presiding. Heard in this court at the February term, 1938. Affirmed. Opinion filed June 6, 1938.
SCERIAL THOMPSON, of Harrisburg, for plaintiff in error.
LLOYD H. MELTON, State's Attorney, and C. T. FLOTA, Assistant State's Attorney, for defendant in error.
Plaintiff in error was prosecuted by information in the county court of Saline county for the crime of petit larceny; the specific charge being that on March 13, 1937, he did steal, take and carry away one ham of the value of $1.40, the personal property of Charles V. Parker Company, a corporation. Trial by jury was waived and the cause submitted to the court, who, after hearing, found plaintiff in error guilty and sentenced him to imprisonment in the county jail for a term of 30 days and to pay a fine of $10 and costs, which, if not paid, was to be worked out at the rate of $1.50 per day.
Nine assignments of error are laid in the abstract; however, but two are argued, hence the remaining seven are regarded as having been waived; Lingle v. West Chicago Park Com'rs, 222 Ill. 384; Dumbeck v. Walsh, 179 Ill. App. 239.
It is contended that there is a failure to prove one of the material averments of the information, — that of ownership. The allegation is that the property was owned by Charles V. Parker Company, a corporation. The proof is that it belonged to C. V. Parker Company, a corporation, and it is argued that proof of ownership in C. V. Parker Company, a corporation, does not sustain the averment that it was the property of Charles V. Parker Company, a corporation.
In Little v. People, 157 Ill. 153, the court held that where the indictment alleged the Christian name of the owner of the stolen property and the proof showed only his initials, no question of identity being raised at the trial, the proof as made was sufficient; and to the same effect is People v. Ascey, 304 Ill. 404. We think there is nothing in this point. Moreover, in any event, it is not open to question upon this record for the sufficient reason that the question of variance was not raised in the trial court. To be available as ground for reversal, the matter of a variance between allegation and proof must be raised upon the original hearing, and cannot be set up for the first time upon review of the cause, People v. Ascey, supra; Dyer v. People, 84 Ill. 624.
Plaintiff in error insists that at the time of the theft he was so intoxicated as not to be conscious of what he was doing, and that he does not remember taking the ham. He contends that the gist of the offense of larceny is the intent to steal, and that he was, for the reason stated, unable to entertain such intent; hence not guilty of larceny, although, as a physical fact, he may have taken the ham.
The law is as stated. People v. Brislane, 295 Ill. 241; Crosby v. People, 137 Ill. 325. If the proof shows that at the time of the taking plaintiff in error was so insane, whether from intoxication or other cause, as to be incapable of forming the criminal intent to steal, then he is not guilty. There is evidence that he had, shortly before the property was taken, been imbibing whisky and beer to excess, and that he showed the effects of such drinking. There are also other circumstances in the testimony which tend to show that he was more or less, at such time, conscious of his acts and conduct.
The trial judge, with the witnesses before him, had opportunity superior to ours to determine their credibility and to find the facts, and upon the record as made we cannot say he was not warranted in finding plaintiff in error guilty.
We think the judgment was right and should be affirmed.
Judgment affirmed.