
    John Evans v. The State of Ohio.
    1. On the trial of E., charged, under the act of March 20, 1860, with causing a building owned by him to be burned, with the intent to defraud the insurer of such building, H., called as a witness on behalf of the state, having testified that he burned the building in question, and that he was hired to do so by B., the court was requested, on behalf of the accused, to instruct the jury that H. was guilty of no crime if he burned the building at the instance of E., and was therefore interested in procuring the conviction of E. Held, that this instruction was properly refused. The criminal liability of H. for his participation in the transaction, whatever it was, was in no way affected by the result of the prosecution against E.
    2. Under section 91 of the criminal code, a variance, on the trial of such case, between the allegations of the indictment descriptive’ of the in surer of such building, and the proof given in support thereof, unless such variance is found to be material to the merits of the ease, or to have the effect to prejudice the accused, does not entitle him to an acquittal.
    
      3. The mere fact that leading questions are improperly allowed on the examination of a witness, although allowed as of right, is not error for which the judgment will be reversed.
    Motion for the allowance of a writ of error to the Common Pleas of Cuyahoga county.
    Evans was convicted, at the February term of the Common Pleas of Cuyahoga county, of the crime of arson. The indictment was framed under the act of March 20, 1860 (S. & C. 457a), and charged the accused with causing a then unfinished dwelling-house belonging to him to be burned, with intent, as alleged in the indictment, to “ defraud the Royal Insurance Company, a corporation doing business in the State of Ohioby which company it was further, in substance, alleged, said property was insured to said Evans against loss or damage by fire, in the sum of $1,500. ,
    Upon the trial of the case, the prosecutor, after having given evidence tending to prove that the value of the building burned was more than fifty, and did not exceed eight hundred dollars, called one Sherman as a witness.
    On his direct examination he gave no testimony in relation to the character or value of the building. On cross-examination he was asked what the building was worth, and stated that, if finished, it would have been worth from $1,500. to $2,500. On examination, the prosecutor was allowed, against the objections of the defendant, to put leading questions to the witness in relation to the condition and value of the building. This was allowed on the ground that the defendant, 'by introducing that subject on the cross-examination, had, so far as related thereto, made the witness his own. The only testimony disclosed by the bill of exceptions, as having been given in answer to such leading questions, was to the effect following: That shingles which had been once used, when used the second time, ought to be laid with reference to their condition, as affected by the former user; that the value of the building would depend, in some degree, upon whether the lumber used in its construction was new, or lumber which had been used; and that the building, at the time it was burned, was lathed, but the kitchen had not been built.
    One Hover was also called as a witness for the state, and testified that the accused hired him to burn the building in question, in order that he might obtain the “ insurance money,” and that he did accordingly burn it, at the instance and by the procurement of the accused.
    Further testimony was given on behalf of the state, tending to prove all the allegations of the indictment, and on behalf of the accused, tending to show that he was not guilty of the offense charged.
    On the close of the testimony, counsel for the accused requested the court to instruct the jury: “1. That before the accused could be found guilty, it was necessary that the jury should be satisfied, beyond a reasonable doubt, that the Royal Insurance Company, mentioned in the. indictment, was an incorporated company. 2.” That if the testimony of the witness Hover was true, the act of setting fire to said dwelling was not a criminal offense on the part of said Hover, and that he was interested in sustaining the fact that he was hired to burn said building, as it would result in his own acquittal, if tried for setting said building on fire.”
    The court declined to give these instructions, and the defendant excepted. The alleged errors now relied upon are: 1. That the court erred in permitting the prosecutor to put leading questions to witness, Sanford; 2. And in refusing to give the requested instruction to the j ury.
    
      S. Burke and S. JE. Williams, for the motion.
    
      William Robinson, prosecuting attorney, contra.
   By the Court.

The instruction to the jury first requested on behalf of the accused, was properly refused. Whether the witness, Hover, if he purposely and willfully burned the building in question, although he did so at the request of the general owner, with intent to aid him to defraud the insurer of the building, would nevertheless not be liable to indictment and conviction, under section 12 of the crimes act, for maliciously burning the building of another, is a question which need not now be determined. However that may be, it is clear that his liability could be in no way legally affected’by the .result of the prosecution in the present case. Upon the trial of Hover upon such charge, the fact that Evans had been convicted of the crime with which he is here charged, would be wholly immaterial; and if it be conceded that it would be material for him to show that he did the act at the instance of Evans, it is clear that the record in the present case could not be used by him as evidence of that fact. The question of his guilt or innocence would not depend upon whether Evans had been prosecuted for the crime here imputed to him, nor could the determination of that question be legally affected by the result of such prosecution.

The second instruction requested on behalf of the accused was also properly refused. The failure on the part of the state to prove that the insurance company named in the indictment was an incorporated company, presented at most a case of variance between the allegations of the indictment and the proof. It was a variance which, it may be admitted, would have been fatal at common law. Whether such particularity of description was necessary or not, the averment being made, and being descriptive of the alleged insurer of the building, as well as of the party it was alleged the accused intended to defraud, a failure to sustain such averment by sufficient proof would, at common law, have resulted in the ’defeat of the prosecution. But the rules of the common law relating to this subject have been essentially modified by the criminal code. Section 91 is as follows: “ Whenever, on any indictment for any offense, there shall appear to be any variance between the statement in such indictment and the evidence offered in support thereof, in the Christian name or surname, or in both Christian name and surname, or other description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case, or may be prejudicial to the defendant.”

The jury, under the instructions of the court, must have found that the insurance company named in the indictment was a party capable of entering into a contract of insurance, and that there was, at the time the building was burned, a valid and subsisting contract of insurance between that company and the accused, of the character charged in the indictment. These facts being established, it was wholly immaterial to the merits of the case whether the company named was a corporation or not. The guilt or the innocence of the accused did not at all depend upon that question. The variance referred to, therefore, if there was such variance, did not touch the merits of the case; and it does not appear, and the court before which the case was tried has not found, that it operated, in any way, to the prejudice of the accused.

Nor does the action of the court, in allowing leading questions to be put to the witness Sherman, constitute ground for reversal. The state had, by other witnesses, given evidence to show' that the value of the building burned was more than fifty, but not to exceed eight hundred dollars. The defendant, on the cross-examination of Sherman, who had given no testimony in chief as to the value of the building, elicited evidence tending to show the value of the building burned to have been greater than the amount insured.

The purpose of this evidence was to show that the defendant had no motive to commit the ofiense. The testimony of Sherman on the cross-examination was, that, if the building had been finished, it would have been worth from $1,500 to $2,500. The testimony elicited by the questions objected to was calculated to show how this valuation ought to be affected by the character of the materials used in the building.

■Without conceding the correctness of the ruling, that the defendant, by his examination, had made the witness his own, so as of right to entitle the state to put leading questions, yet the questions allowed, and the evidence thereby elicited, show no cause for reversing the judgment. The allowing or refusing of leading questions in the examination of a witness must very largely be subject to the control of the court, in the exercise of a sound discretion. While we do not say that a case may not arise in which there may be such an abuse of discretion as to deprive the party of a fair trial, and thus call for the interference of this court, it is plain that the present one is not of that character.

Motion overruled.  