
    No. 86
    BROZICH v. STATE
    Cuyahoga County Court of Appeals
    No. 4386,
    Dec. 18, 1922
    CRIMINAL LAW — (1) Prejudicial variance offense charged and evidence different, 13581 GC., 13582 GC.
    Error to Cuyahoga County Common Pleas Court.
    Attorneys — C. V. Liggett and Jesse Stephens, for Brozich; E. C. Stanton, for State.
   SULLIVAN, P. J.

Epitomized Opinion

The Grand Jury returned an indictment against Brozich, charging larceny for stealing nine “rungs” of the value of $360. On the trial the evidence was that he stole nine rugs of the value of $360. Brozich was convicted, the trial court overruled a motion for new trial, and sentenced Brozich.

Brozich counsel contended there was such a variance between “rungs” and “rugs” that 13581 and 13582 GC. did not apply or cure the variance. The Court of Appeals held:

1. That where the property described in the indictment is an entirely different chattel in use, purpose and meaning from the chattel which the evidence shows to have been the subject of the larceny, and the names have no relation to each other, and there is such a variance as to be prejudicial to the accused, for if the accused was convicted on an indictment, charging the larceny of nine “rungs” and he were again indicted for the larceny of nine “rugs,” he would have no record sufficient to bar a prosecution, and the variance is not cured by those sections of the code.  