#### The State of Ohio *v.*Turnbaugh.

*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.*

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.

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.

(No. 11398

Decided November 10, 1908.)

Exceptions by Prosecuting Attorney to decision of the Court of Common Pleas of Guernsey county.

At the May term, 1908, of the Court of Common Pleas of Guernsey county, the defendant, Earl Turnbaugh, was, by the grand jury . of said county, indicted for the crime of burglary and *64larceny. Said indictment, omitting the formal parts thereof, charged “that Earl Turnbaugh, late of said county, on the 4th day of December, in the year of our Lord one thousand nine hum dred and seven, at the county óf Guernsey aforesaid, in the night season of the same day, to-wit: about the hour of eleven o’clock at night, in the county of Guernsey aforesaid, into a certain storehouse of one George Butts, there situate, did unlawfully, maliciously and forcibly break and enter with intent then and there and thereby the personal property of the said George Butts in the said store-house then and there being, unlawfully to steal, take and carry away, and money of the value of twelve dollars ($12.00) of the personal property of the said George Butts in said storehouse then and there being found, then and there unlawfully did steal, take and carry away.” It being admitted in this case that the statement made by the prosecuting attorney in his brief touching the location, character, etc., of the building alleged to have been broken and entered, is a correct statement of the facts as proved by the state on the trial, we may for the purposes of the present inquiry adopt that statement, which is as follows: “The evidence showed the building to be situated on the corner of Harris avenue and Second street, Cambridge, Ohio. That there is no entrance to the building on. Harris avenue. That from Second street there are three entrances, — one into the north room which adjoins Harris avenue, in which room George Butts and his family reside; one into the grocery room south of and adjoining the living room; one into the *65other grocery room on the south, being the south part of. the building, each of said grocery rooms extending back the full extent of the building. The house as originally constructed, did not include the grocery room on the south, this south room being built about two years ago as an addition, and for the express purpose of being used as a meat and grocery room, in connection with the adjoining grocery room on the north, which said south room was connected with the other grocery room by means of an open archway about seven feet wide and reaching to the ceiling, and said two rooms were used as the grocery store of George Butts.

“There is a permanent partition between the grocery rooms and the living-room, extending from the floor to the ceiling, except there is a communicating door about ten feet from the rear of the storeroom, leading to the living-room, which communicating door was kept locked at night, and was locked on the night of the burglary herein. The building as it stood at the time of the burglary was as long on Harris avenue as it was wide on Second street, and besides the entrance or doorway to each of the storerooms from Second street, there was a door into the rear of the north storeroom from the out-, side. There was also a window on the south side of the south storeroom opposite the archway above mentioned, and it was through this last named opening or window that the burglar broke and entered, this south room into which he first entered, being the room built expressly for use as a store.

*66“The burglar passed from the south room through the open archway into the other grocery room, and it was in the north grocery room, near the archway, where the money was found. There was no way of entering the living-room or dwelling-house proper from the storerooms, except through the communicating door, and that door was securely locked. The burglar did not enter, or attempt to break or enter, the living-room or dwelling-house proper.”

On the trial, at the conclusion of the state’s evidence, counsel for the defendant, Turnbaugh, .moved the court to direct the jury to return a verdict of not .guilty and to discharge the accused, because of a claimed variance between the allegations of the indictment and the proof offered by the state, in this, to-wit: that the defendant was charged in said indictment with breaking and entering a storehouse, whereas the evidence, it was claimed, showed that the building broken and entered was not a storehouse, but a *dwelling-house.*Said motion was sustained by the court and the jury was directed- to, and did, return a verdict of not guilty, whereupon the court discharged the accused from custody. To all of which the state by the prosecuting attorney duly excepted. * The present proceeding is prosecuted to obtain the decision of this court as'to the law to govern in similar cases.

*Mr. Charles S.*Sheppard, prosecuting attorney, for plaintiff in error.

A room in a building may be a storehouse. *Bauer*v. *State,*25 Ohio St.,*70) Commonwealth*
      *67v. *Whalen,*131 Mass., 419; Section 16, N. Y. Burglary Act; Section 503, N. Y. Penal Code; *Quinn*v. *People,*71 N. Y., 561; *Moore*v. *People,*47 Mich., 639.

The use determines the character of the structure. *Ratekin*v. *State,*26 Ohio St., 420; *Barnett*v. *State,*38 Ohio St., 7; *Thalls*v. *State,*21 Ohio Ohio St., 233.

Variance, if any, not prejudicial. *Walters*v. *State,*39 Ohio St., 216; Section 7216, Revised Statutes.

A variance is not 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. Abbott’s Crim. Trial Brief, 583; *State*v. *Buechler,*57 Ohio St., 95; *Lytle*v. *State,*31 Ohio St., 196; *Tarbox*v. *State,*38 Ohio St., 581; *Mulrooney*v. *State,*26 Ohio St., 326; *Mead*v. *State,*26 Ohio St., 505; *Mitchell*v. *State,*42 Ohio St., 383.

*Mr. John F. Stockdale,*for defendant in error.

That there is a difference between the term storehouse and storeroom, we have but to examine the cases of *Hagar*v. *State,*35 Ohio St., 268; *State*v. *Williams,*90 N. Car., 724; *Quinn*v. *People,*71 N. Y., 561; *State*v. *Potts,*75 N. Car., 129; Hughes on Crim. Law & Pro., Section 703.

The court will find the same rule has been adopted by the Supreme Court of the State of Georgia, in *Ashton*v. *State,*68 Ga., 25, and again by the Supreme Court of Michigan, in the case of *People*v. *Dupree,*98 Mich., 26.

*68Crew, J.

While the objection raised by the defendant on the trial of this case in the court of common pleas, and relied upon by him in this court, namely: that there is a material variance between the allegations of the indictment and the proof offered by the state in support thereof, might perhaps have been properly sustained under the technical and rigorous rule of the common law, as formerly applied in criminal prosecutions, such objection, upon the undisputed facts in the present case, is without merit, and cannot avail the defendant as ground for acquittal, under the modern and more reasonable rule now almost universally recognized by the courts, and in many of the states declared by statute, that a variance is not to be regarded as material unless it is such as might prejudice or mislead the defense, or might expose the accused to the danger of twice being put in jeopardy for the same offense. In modern practice much of the strictness that formerly obtained in criminal proceedings under the rule of the common law, as to proof of matters of mere description, has been done away with, as tending to embarrass and defeat, rather than promote, the administration of public justice. In harmony with this modern rule, which, while it preserves and protects the substantial rights of the accused, disregards such matters of variance as are not material to the merits of the case or prejudicial to the defendant, the general assembly of the State of Ohio, by Section 7216 of our Code of Criminal Procedure has enacted that: “When on the trial of an indictment there appears to be any variance between the statement in such indictment and the *69evidence 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.” The manifest purpose, as well as the positive effect of this statute, was to modify or change the strict rule of the common law which made fatal any variance between the allegations of the indictment, as to matters of description, and the proof offered in support thereof. In *Lytle*v. *The State,*31 Ohio St., 196, Gilmore, J., in discussing the effect of the above provision of our Criminal Code, says: “This abrogates, in our state, the rule of evidence on the subject of variance, in matters of description, between the allegation and proof. Instead of looking to the rules of evidence to ascertain whether there .is a variance between the allegations of the indictment and the evidence offered, the court now looks at the case as it stands before it; and if there are variances between the allegations and the proof offered, the defendant, for that reason alone, must not be acquitted, unless, in the opinion of the court, the variance is material or may be prejudicial to the defendant. The opinion of the court, in this respect, is now substituted for the former rule of evidence on the subject.” And in *The State*v. Buechler, *57*Ohio St., 95, it was held that the decision of the trial judge on the question of the materiality of the variance, is not conclusive, but that such decision may be reviewed by *70this court on error, or upon exceptions presented by the prosecuting attorney. When we consider, in the present case, that the character and proper designation of the place or structure alleged to have been burglariously entered, must be ascertained and determined from the nature of the use to which it was appropriated at the time of the commission of the alleged *offense,*— Thalls v. *The State,*21 Ohio St., 233, — it would seem reasonably certain that such structure was not improperly or inappropriately designated in the indictment as a “storehouse.” But if it be conceded in this case that there is a variance between the allegations of the indictment and the proof offered by the state in support thereof, in the name or description of the building entered, such variance, under the facts and circumstances appearing of record, was neither material nor prejudicial, and could not therefore, because of the provisions of Section 7216, Revised Statutes, furnish ground for the acquittal of the defendant.

*Exceptions sustained.*

Price, C. J., Si-iaucic, Summers, Spear and Davis, JJ., concur.