State v. Turnbaugh

Citations

• 79 Ohio St. (N.S.) 63

Syllabus

<p>Trial for burglary — Variance betiveen- indictment and evidence — No ground for acquittal, when — Section 7216, Revised Statutes — Indictment describes building as store-house• — Evidence as living-room — Criminal law.</p> <p>1. On the trial of an indictment charging the defendant with the crime of burglary, a variance between an allegation of said indictment and the evidence offered in support of it, in the name or description of the building alleged to have been broken and entered, is not ground for an acquittal of the defendant, unless such variance is material to the merits of the case, or prejudicial to the defendant. Section 7216, Revised Statutes.</p> <p>2. Where the allegation in an indictment is, that the accused maliciously and forcibly broke and entered the storehouse of B, and the evidence offered in support of such allegation establishes the fact that he thus broke and entered a certain room the property of B, built for, and by him occupied and used exclusively as a storehouse; which room adjoined another compartment or room in the same building, occupied by B and family as a living room, the two compartments however being separated by a permanent partition and the only means of communication between them being through a door in said partition which was kept locked at night, and which on the night of the burglary was shown to have been securely locked and fastened, the variance, if any, between the averment of said indictment and the proof, is not sufficient ground for an acquittal of the defendant.</p>