Alkenbrack v. People

1 Denio 80

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: May 15, 1845
• Status: Published

Opinion

By the Court, Beardsley, J.

A sheet—an article of bed furniture—may be composed of various substances, as linen, cotton or wool, singly or in combination. The word has reference to the form and not the material of which the article is made; had this therefore been described by the term sheet alone, it would have been sufficiently certain. (3 Chit. Cr. Law, 947 ; 3 Maule & Sel. 547, 452.)

But the accused was put on her trial for stealing a sheet composed wholly of wool, for it is described as “ one white woollen flannel sheet;” and she was convicted of stealing an article, part cotton and part wool, called a cotton and woollen blanket.

The quality and description of the property stolen must be shown with accuracy and certainty. The general rules on this point are stated by Chitty and other elementary writers, and need not here be repeated. (3 Chit. Cr. Law, 946, 947; 1 id. 335 to 338.) If the property is described as a cow, and proved to be a heifer, the variance is fatal: so it is if described as a sheep, and proved to be a lamb. And where a party was indicted for stealing one bushel of oats, one bushel of chaff and one bushel of beans, and the proof was that they were mixed together when stolen, the variance was held to be fatal. [Rex v. Kettle, 3 Chit. Cr. Law, 947.)

Here the property was described with unnecessary minuteness and particularity, but, being so described, the proof must correspond with it. A charge for stealing an article composed wholly of wool, is not, in my opinion, sustained by proof of stealing one which was part wool and the residue cotton.

Conviction reversed.