
    The State v. Buechler.
    
      Allegation of indictment— Variance between indictment and evidence , —Decision of trial judge as to same may be reversed, when.
    
    1. The allegation of an indictment that the accused feloniously broke and entered the poultry house of P., is supported by evidence, that he thus entered one of several compartments under a continuous roof, that entered being completely separated from the others and being in the exclusive possession of P. as a tenant, and used by him as a poultry house. ■ '
    2. A decision of the trial judge on a question as to the materiality of a variance between an allegation of an indictment and the evidence offered in its support, may be reversed, if erroneous and prejudicial to the accused, and it may be the subject of an exception by the prosecuting attorney with a view to obtaining a decision which shall determine the law for the goverriment of similar cases.
    (Decided November 23, 1897.)
    Exceptions to the ruling of the Common Pleas Court of Fairfield county.
    Buechler was placed on trial upon an indictment which charged that he in the night season, “feloniously and forcibly broke and entered, “with intent to steal, into a certain building, to-wit: A poultry house of one Jonas Pickens, * * * and seven turkeys, of the value of seven dollars, the personal property of said Jonas Pickens, in said building, to-wit: in said poultry house, then and there being found, then and there unlawfully did steal, take and carry away.”
    The evidence showed that Pickens was lessee of one of several rooms in a business block, using his room for the purposes of a restaurant; that in the rear of the block were three rooms under a continuous roof, for use in connection with the business rooms, the three rooms being separated by permment partitions extending- from floor to roof that Pickens occupied two of these rooms to the entire exclusion of one Bauman, who was tenant of the other compartment, and that one of the rooms, so occupied by Pickens, was entered by the accused.
    The court charged the jury, “if you find from the evidence, that one or more of the compartments of said building were owned and occupied separately by Pickens, and that another compartment of the same was used exclusively by Bauman, that there would be a fatal' variance, between the allegation of ownership in the indictment and the proof, and the defendant could not be convicted of burglary, ” to which the prosecuting attorney excepted.
    
      John M. Wright, Prosecuting Attorney, for plaintiff.
    1. We claim the court erred in its charge in sustaining the motion for a new trial, and that the variance, if any existed, was trivial and non-prejudicial to defendant. Section 7216, Revised Statutes.
    2. The law of Ohio recognizes the occupant of a building, or a part of a building, in burglary cases, as the owner, whether he have full legal title, or is a mere tenant for years, or even by sufferance. 18 Ohio, 300; 17 Ohio St., 583.
    Any title is good as against a burglar. Wharton’s Cr. L., 8th ed., secs. 787, 798, 802, 804 ; 2nd East P. C., 499, 500; 38 Ga., 165.
    3. A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Abbot’s Trial Briefs in Cr. Cases, sec. 680.
    
      This defendant was charged with the unlawful breaking and entering of the building of Jonas Pickens, and the larceny of his property. The proof shows that it was the property of Pickens that was broken and entered, and that the property of Pickens, therein found, was unlawfully carried away. He was not charged with any offense against the building or property of Bauman, nor had he committed any such offense. He was fully apprised of the charge against him by the indictment in this case and came to trial on the issue made by his plea of not guilty, to the charges- in the indictment. We can see, that if the proof had shown, that it was the part of the building occupied and controlled by Bauman that had been broken and entered, or that it was the property of Bauman that was stolen, there would have been a material variance. But Bauman is an alien to this case. Defendant could not be put on trial again upon the same proofs, charged with burglarizing the building of Bauman because the actual breaking, having been in Pickens’ building, and the proof showing it, a material variance would exist.
    
      George Ewing, for defendant.
    I. There is a variance in this ease between the necessary allegation of ownership, and the proof, in that the title is laid in Pickens, whereas the proof shows it to have been in Pickens and Bauman. 34 Ohio St., 203; 25 Ohio St., 388.
    The question of variance does not come under section 7224, Revised Statutes. This section must, of course, receive a strict construction, affecting, as it does, the administration of penal statutes. But under the most liberal view,'it could not be taken to extend to separate possessory owners of parts of the same building, for that class of ownership has no logical association with joint ownership ; the separate owners having no community of interest, title, or possession.
    The question of variance in this case must be passed upon under section 7216. The trial judge, i.n the exercise of his statutory power of discretion, under this section, found such variance to be material and prejudicial.
    The discretionary action of a trial court should not be interferred with, unless there appears to have been a gross misuse of discretion. This discretion is invoked upon the hearing of the facts in the case; and it finds its chief function in weighing all the conditions and subtle influences that bear upon the question that calls it forth. It, therefore, acts upon that which canno't be fully reproduced, by record or otherwise, before the reviewing court. 1 Ohio St., 286; 4 Ohio, 420; 9 Ohio St., 397.
    The record does not disclose the facts which were produced in evidence, either supporting or controverting thé material and prejudicial character of the variance.
    As far as the record shows to the contrary, defendant whs misled, and was put upon his defense under his .plea of not guilty, for one crime, and then tried, under the evidence of the state, for an entirely different one.
    II.' Separate occupancy of the same building does not create separate buildings for the purposes of burglary, except where such separate occupancy is for domiciliary purposes.
    Where a burglary is committed in one of a number of office rooms in a building, it would not be proper to lay the ownership of the building in the occupant of that one room. Neither would it be logical to allege the occupant of a store-room below, in case the entry were made there, to be the owner of the building.
    III. The exercise of discretionary powers by trial courts can be reviewed only for the purpose of relieving individuals who might otherwise suffer from an abuse of the power vested in such courts. No precedent can be established, which shall govern the trial courts in the exercise of their discretionary powers ; for, evidently, to do so would be to usurp the legislative power, by binding the trial courts in that which the legislature has seen fit to leave directly to their discretion.
    IV. The state can prosecute no alleged error which may have occurred prior to the rendering by the jury of their verdict; for the record shows that the verdict of the jury was in compliance with the full demand of the state. The prisoner was found guilty of burglary and larceny as charged in the indictment; ■ and there could, therefore, have been nothing in the rulings or charge of the court, prior to said verdict, which has worked an injury to the state.
   Shauck, J.

The separate character of the two compartments occupied t>y Pickens, and his exclusive possession of them, were not affected by the fact that under the same continuous roof was another compartment which was used exclusively by Bauman. The trial judge correctly held that the case does not come within the provisions of section 7224, Revised Statutes, because there was not a joint use by Pickens and Bauman of the corm partment entered.. For the • same reason, it was correctly charged as the separate property of Pickens.

It is provided in section 7216, Revised Statutes, that “when, on the trial of an indictment there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, * * * *, in the name or description of any matter or thing therein named, or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had, find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” It is clear that the defendant could in no way have been prejudiced by the contiguity of the compartments occupied by Pickens and that occupied by Bauman. It would not have been practicable to allege the ownership of the building with more certainty or particularity. Indeed, the instruction that there was a fatal variance if the compartment broken and entered was used exclusively by Pickens, considered in connection with the instruction, that as there was no evidence showing a joint use by Pickens and Bauman, there could be no conviction under section 7224, was tantamount to holding that a compartment thus related to another cannot be unlawfully broken and entered.

It cannot be maintained that section 7216, Revised Statutes, vests in the trial judge a conclusive discretion to determine what is a fatal variance. That section is subject to the general provisions of the statutes as to the review of the proceedings of the common pleas by the circuit and supreme courts. That an erroneous decision in that regard in the court of common pleas, is subject to reversal, if prejudicial to the accused, is shown by all the numerous cases in which such decisions have been reviewed. For equal reasons such decision is contemplated by section 7305, Revised Statutes, under whose favor exceptions are taken by the prosecuting attorney, not with a view to obtaining a reversal of the judgment, but to secure a decision which shall determine the law to govern in any similar case.

The exception is sustained.  