In granting the writ, we specified that review would be limited to that part of the opinion of the Court of Appeals delivered on rehearing, wherein it was concluded that there was a fatal variance between the indictment and proof in that the indictment described one of the items stolen as "one piece of steel cable * * * a better description of which property is to the Grand Jury unknown otherwise than as indicated * * *," but the proof showed that the Grand Jury did know that the cable stolen was seventy-five feet long and, therefore, did know a better description of the property.
The rule is well established that conviction cannot be sustained when a material variance appears between averment and proof, and objection is properly made. Duvall v. State, 63 Ala. 12; Winter v. State, 90 Ala. 637, 8 So. 556; James v. State, 115 Ala. 83, 22 So. 565.
The rule also is that when the description of the stolen property in the indictment is sufficient, the further statement that a better description was unknown to the grand jury is surplusage and immaterial, and proof that the grand jury did know does not present a material variance which will prevent conviction. Carden v. State, 89 Ala. 130, 7 So. 801.
In the instant case, the description of the cable is in these words, "one piece of steel cable * * * a better description of which property is to the Grand Jury unknown, etc. * * *." The question is, do the words, "one piece of steel cable," standing alone describe that item with required definiteness and certainty? We are of opinion that the words, "one piece of steel cable," standing alone are not sufficiently definite and certain.
In 52 C.J.S. Larceny § 77, page 870, it is said:
* * * * * *
In State v. Murphy, 6 Ala. 845, a description of stolen property as: "sundry pieces of silver coin," was held not sufficiently particular, the court saying the indictment should have stated the number and denomination of the coins alleged to have been stolen.
In Croker v. State, 47 Ala. 53, a description as: "ten dollars in money of United States currency," was held "too indefinite."
In Grant v. State, 55 Ala. 201, a description as: "ten twenty-dollar gol pieces of American coinage," was held sufficient, the court saying again, if the larceny is of coin, the number and denomination must be stated, although when species and denominations are unknown, that fact may be averred.
In Noble v. State, 59 Ala. 73, a description as: "one hundred and eighty dollars, or other large sum of money," was held insufficient.
In Burney v. State, 87 Ala. 80, 6 So. 391, a description as: "two hundred dollars in gold coin of the United States," was held bad, the court through Stone, C. J., saying:
See also: Gady v. State, 83 Ala. 51, 3 So. 429; Owens v. State, 104 Ala. 18, 16 So. 575; Leonard v. State, 115 Ala. 80, 22 So. 564; Thomas v. State, 117 Ala. 84, 23 So. 659; Verberg v. State, 137 Ala. 73, 34 So. 848; Hamilton v. State, 147 Ala. 110, 41 So. 940; Montgomery v. State, 169 Ala. 12, 53 So. 991; Collins v. State, 14 Ala.App. 54, 70 So. 995.
According to the rule of the above cited cases, a description as "one piece of silver coin" would be insufficient. "One piece of steel cable" is no better. "Cable" has been defined as:
To inform a defendant that he is charged with stealing "one piece of steel cable," is to leave an innocent accused ignorant of the nature and cause of the accusation. One piece of steel cable, according to common understanding, can mean a great variety of lengths and diameters of steel rope, and in some circles in ordinary context can and does indicate a chain.
The reason for securing to an accused the right to demand the nature and cause of the accusation has been stated as follows:
One reason why an indictment should be definite has been summarized in the following language:
The description, "one piece of steel cable," standing alone being insufficient, the averment that a better description was unknown was necessary to make the indictment sufficient, and proof that a better description was known to the grand jury presented a material variance between allegation and proof. The Court of Appeals so held, and that holding is affirmed.
As we understand the Court of Appeals, in this case, averment and proof that the cable was included in the articles taken was essential to conviction for grand larceny as distinguished from petit larceny. Because of that understanding, no consideration has been given to the rule that conviction may sometimes be sustained by proof of taking some only, and not all, of the articles described in the indictment and alleged to have been taken.
When the dimensions are known to the grand jury, the prosecution suffers no hardship by stating the known facts. If the cable should be a chain, that fact should be stated. If the dimensions are unknown, that fact may be averred, and if the dimensions are partially known but are uncertain, then:
See also: Smith v. State, 142 Ala. 14, 39 So. 329; Harrison v. State, 144 Ala. 20, 40 So. 568.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.