
    John Goodall v. The State of Ohio.
    Where an indictment charged the defendant with stealing a silver teapot and other named articles of silver ware, and the evidence on the trial showed that the articles stolen were plated ware, consisting of only one twenty-fifth pait silver, and thero was no finding of the court, or evidence showing that the variance was material to the merits of the case, or prejudicial to the defendant:
    
      Held, that the variance was not fatal, and the defendant was properly convicted, there being a good legal description of the articles stolen after the false word “silver” is rejected.
    Motion for the allowance of a writ of error to the Court of Common Pleas of Hamilton county.
    The plaintiff' was tried and convicted on an indictment for larceny. The property charged to have been stolon, consisted of various articles of table ware, and were described in the indictment as being “silver” articles, as “one silver codec-pot, one silver tea-pot,” etc. On the trial, it appeared that the articles stolen were not silver ware, but such as are denominated plated ware, consisting of only about one twenty-fifth part silver. It is assigned for error, that this evidence did not support the indictment, and that the prisoner should have been acquitted on account of the variance.
    
      G. H. Blackburn, for the motion:
    That there was a material and fatal variance between the evidence offered at the trial and the allegations of the indictment, I think there can be no doubt.
    
      Hooker v. The State, 4 Ohio, 348; Com. v. Varney, 10 Cush. 402; Alkenback v. The People, 1 Denio, 80; Com. v. Butcher, 4 Grat. 544; Hart v. The State, 20 Ohio, 49; 1 Bish. Crim. Procedure, 235; United States v. Keen, 1 McLean, 429; The State v. Jackson, 30 Maine, 29; United States v. Brown, 3 McLean, 233; State v. Noble, 15 Maine, 476; United States v. Howard, 3 Sumner, 12; Dick v. State, 30 Miss. 631; 3 Phil. Ev. 668 (Hill & Cow. ed.); United States v. Porter, 3 Day, 286; 24 Miss. 578; Rex v. Owen, 1 Moody C. C. 118, 303; Rex v. Craven, 1 Russ. & Ry. 14; 2 Stark. Ev. 1531.
    No argument or brief against the motion was found among the files.
   By the Court.

At common law, this would have been a fatal variance, and the only question is whether the defect is cured by section 91 of the criminal code. 66 Ohio L. 301. It is there provided, that when there is a variance between the statement in an indictment, and the evidence offered in proof thereof, “in the name or 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.”

There being no such finding by the court, it seems to us that the case comes fairly within this provision of the code, and that the defect is cured by it. To what cases of defective description this provision of the criminal code can be constitutionally applied, or what is the exact line between a “ variance” within its meaning, and a failure of proof, we need not decide in the present case. We think it safe at least to give it effect in cases like this, where the false part of the description being rejected a perfect legal description remains, and where the court do not find, and it does not appear iu proof, that it was material to the merits of the case, or that the defendant was prejudiced thereby.

Motion overruled.  