POHNPEI SUPREME COURT REPORTS
VOL.2
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YOSTER ARON,
Appellant
v.
POHNPEI STATE,
Respondent
Pohnpei Criminal Appeal No. 3-85
Appellate Division of the Pohnpei Supreme Court
October 2, 1987
Appeal following conviction of two criminal offenses of malicious mischief and petit larceny. The appellant's ground of appeal was that there was insufficient evidence as a matter of law and tact to support the convictions. There was a disagreement (variance) between the allegations in the complaint and the proof at trial, but the prosecutor failed to seek the Trial Court's permission to correct the defect. Also the complaint did not specify the value or the owner of the property alleged to have been stolen in the charge of pent larceny. The Appellate Division of the Pohnpei Supreme Court, per EDWEL H. SANTOS, Chief Justice reversing the conviction of malicious mischief and affirming the conviction of petit larceny, held : (1) the failure of the prosecutor to correct a technical detect in the complaint should not be used to penalize the accused in a criminal trial; and (2) the failure of the prosecutor on a charge of petit larceny to specify in the complaint the value of the property stolen, and to identify the owner of the property was not fatal as it must be presumed that the value was within the statutory limit and must be proved by evidence; and larceny was committed where the property stolen was property of some person other than the accused even though the owner was unknown.
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1. Criminal Law - Malicious Mischief - Definition
Every person who shall unlawfully destroy, damage, or otherwise injure property belonging to another, including the property of the Trust Territory or any district or municipality thereof, or shall unlawfully throw, discard, or scatter upon any public road, street or ground or other land owned, reserved, controlled or maintained, for any purpose other than a public dumping ground, by the government of the Trust Territory or any district, municipality or other subdivision thereof, or otherwise carelessly or willfully litter such places, shall be guilty of malicious mischief, and upon conviction thereof shall be imprisoned for not more than six months, or fined not more than one hundred dollars, or both. (11 TTC 951.)
2. Criminal Law - Petit Larceny - Definition
Every person who shall unlawfully steal, take and carry away personal property of another of the value of less than fifty dollars, without the owner's knowledge or consent, and with the intent to permanently convert it to his own use, shall be guilty of pent larceny, and upon conviction thereof shall be imprisoned for a period of not more than six months, or fined not more than one hundred dollars, or both (11 TTC 851.)
3. Appeal and Error - Evidence - Courts - Practice
Where a criminal appeal is based on the ground of insufficiency of evidence the essential question that the appellate court must first address is whether there was sufficient evidence to justify the trial court's making the finding which it made considering primarily the evidence most favorable to the decision of the lower court.
4. Appeal and Error - Evidence - Courts - Practice
All the appellate court is obliged to do when an appeal is taken on the ground of insufficiency of evidence is to determine whether or not there is any reasonable evidence to support the verdict of guilty.
5. Criminal Law - Complaints - Correction of Technical Defects
The failure of the prosecutor to seek the trial court's permission to correct before finding a technical defect on fife face of the charge
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should not be used to penalize the defendant.
6. Criminal Law - Evidence - Degree of Proof
The due process clause of the Pohnpei Constitution requires proof beyond reasonable doubt as the condition for criminal conviction.
7. Criminal Law - Evidence - Burden of Proof
To demand the defendant to rectify a technical defect on the ground of the old doctrine of variance would amount to shifting the burden of proof from the prosecutor to the defendant.
8. Criminal Law - Criminal Prosecutions - Constitutional Guaranties Presumption of Innocence of Accused Persons
In all criminal prosecutions the accused shall be presumed innocent until proven guilty beyond a reasonable doubt. (Pohnpei Constitution, Article 4, Section 9 (1) )
9. Criminal Law - Peat Larceny - Evidence - Ownership or Possession of Stolen Property
The definition of the offense of petit larceny does not require that the owner of the property be particularly described, but it is sufficient that the ownership or the possession of the property stolen is in some person other than the thief. (50 Am Jur. 2d,Larceny, Section 22):
10. Criminal Law - Pent Larceny - Ownership or Possession of Stolen Property
Although the ownership of stolen property must be in a person other than the thief in a case of pent larceny, it is not necessary that the owner shall be known.
11. Criminal Law - Petit Larceny - Evidence - Proof of Ownership of Stolen Property
In a petit larceny prosecution under the Trust Territory law (11 TTC 851) the Government need not prove the actual owner of the property stolen, so long as the record is clear that the property stolen is not the property of the thief.
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12. Criminal Law - Evidence - Burden of Proof - Degree of Proof
It is a general principle of criminal law that the burden of proof rests upon the prosecution to prove every essential ingredient of its case, and the connection of the accused with the crime, so that the guilt of the accused may appear to the satisfaction of the court beyond a reasonable doubt.
13. Criminal Law - Evidence - Degree of Proof
In order for one to be convicted of a crime of larceny, it is necessary that the prosecution prove beyond a reasonable doubt all of the essential elements.
14. Criminal Law - Petit Larceny - Evidence - Proof of Value of Stolen Property
Though the value of the property involved in the offense of petit larceny is one of the ingredients in the offense which must be proved beyond a reasonable doubt, the proof of the value of the stolen property is primarily for the purpose of grading the offense, and the value proved need not be the real or actual value; it may be the market value.
15. Criminal Law- Petit Larceny- Evidence - Proof of Value of Stolen Property.
So long as the prosecution leads sufficient evidence to satisfy the trial judge that value of the property stolen falls within the statutory limit that should discharge the government's burden of proof of value.
16. Criminal Law - Petit Larceny - Evidence - Presumption
Where the prosecution in a complaint namesthe offense committed as pent larceny but fails to specify the value of the property stolen,it must be presumed that the value is within the statutory limit, and thefactthat the value was not set forth in the complaint is not fatal.
Counsel for Appellant: loanis Kanichy
Office of the Public Defender,
Pohnpei State
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Counsel for Appellee: Harold Henry
Office of the Public
Prosecutor, Pohnpei State
CORAM: EDWEL H. SANTOS, Chief Justice
YOSTER CARL, Associate Justice
JUDAH C. JOHNNY, Associate Justice
EDWEL H. SANTOS, Chief Justice, delivered the opinion of the Court.
The appellant was tried on May 3,1985, and was found guilty of one count of malicious mischief and one count of petit larceny under the Trust Territory (T.T) Criminal statute. The criminal offences charged were allegedly committed on January 25,1985. The Pohnpei Crimes Act (1 L-3-85) which supersedes Title 11 of the Trust Territory Code as it relates to Pohnpei came into force on March 9, 1985. The appellant was sentenced to serve 3 months imprisonment for the count of petit larceny and 2 months for malicious mischief, or a total of 5 months. The sentence further provides that the appellant shall serve the first 2 months in the State prison, and the last 3 months will be spent on probation, should
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appellant's conduct in prison rank satisfactory. The appellant appealed the trial court's judgment and sentence order and styled his appeal as follows:
(a) There was insufficient evidence as a matter of law and fact that the defendant was guilty of either [sic] count of petit larceny.
(b) There was insufficient evidence as a matter of law and fact that the defendant was guilty of malicious mischief.
(c) The five months sentence imposed was excessive.
In his brief, the appellant deleted ground (c) of his appeal and in response to a question from the appellate panel, counsel stated that it was his intention to delete ground (c) of from the appeal. Thus it leaves only two grounds to be considered and to be decided in this appeal. The appellant's two grounds of appeal can be summarized to state: there was insufficient evidence to sustain the finding of guilty on both counts of malicious mischief <11 TTC 951 > and petit larceny <11 TTC 851 >.
[1] The offense of malicious mischief is defined under 11 TTC 951 as follows:
"Every person who shall unlawfully destroy, damage, or otherwise injure property belonging to another, including the property of the Trust
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Territory or any district or municipality thereof, or shall unlawfully throw, discard, or scatter upon any public road, street or ground or other land owned, reserved, controlled or maintained, for any purpose other than a public dumping ground, by the government of the Trust Territory or any district, municipality or other subdivision thereof, or otherwise carelessly or willfully litter such places, shall be guilty of malicious mischief, and upon conviction thereof shall be imprisoned for not more than six months, or fined not more than one hundred dollars, or both."
[2] And petit larceny is
"Every person who shall unlawfully steal, take and carry away personal property of another, of the value of less than fifty dollars, without the owner's knowledge or consent, and with the intent to permanently convert it to his own use shall be guilty of pent larceny, and upon conviction thereof shall be imprisoned for a period of rat more than six months, or fined not more than one hundred dollars, or both.' (11 TTC 851.)
[3-4] It has been the principal practice of most appellate courts known to this jurisdiction that where a criminal appeal is based on the ground of insufficiency of evidence the essential question that the appellate court must first address is whetherthers was sufficient evidence to justify the trial court's making the finding which it made considering primarily the evidence most favorable to the decision of the lower court. All the appellate court is obliged to do when an appeal is taken on this ground is to determine whether or not there is any reasonable evidence to support the verdict of guilty. See the following Trust Territory cases which also follovired this practice. Lizama v. T.T., 7 TTR 256; Markengel v. T.T., 4 TTR
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432 ; Amis v. 7T., 2 TTR 364; Aiichi v. T7:, 3 TTR 2290.
We adopt this practice for our jurisdiction and apply same as justice required.
I. Malicious Mischief
Count one of the complaint charged that on or about January 25,1985, the appellant went to Ellen Ehsa's market and unlawfully destroyed the main door of the market.
<...Yoster Aron wiadahr dipen Mwerkau sang ni ah keid ni sapwung ahpw kohla ni en Ellen Ehsa ah marketo oh kawehla wenihm laud en market wet.>
Our review of the record shows that while the complaint described the door being destroyed as that of the main door of the Ellen's market, the testimony of witness described the door as being the door of a restroom <imwen kainen>. The testimonies of the following witnesses are relevant:
Witness loana Joab:
Q. Ke kak kosoiaiong Mwoal wet dahme Yoster Aron wiewiaseli wasau dahme eh wiewia? Kosoiada.
A. E kohla mihmiseli likin marketo, ih dapeng peseng wenihmw en imwen kainen en marketo oh pwedlong kihsang tape ieu mwo. Tr. P. 2.
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Q. Dahme ke diarada?
A. I diarada me a pwusikpeseng wenihmw en imwen kainen oh solahr dipwisou nan ihmwo. Tr. p-2-3.
Witness Asauki Peiso:
Q. Isauki, ni amwa lel mwo, dahme ke kilang de dahme ke wehwehki me wiawi?
A. Duwen me I wehwehki, I kilang lahpe kawehla ihmw oh wahsang keseng ieu. Tr. p.8.
Q. Menia ihmw, ke kak kawehwe?
A. Ihmw me kodilahngete en Ellen ah marketo Tr. p.10.
[5-8] In reconciling the evidence and the charge of malicious mischief in the complaint against the appellant we note a serious technical defect where the complaint charged that "the main door of Ellen's market" was the door that was destroyed whereas in fact it was the door of a different building that was destroyed. This evidentiary fact must have alerted the Prosecutor to request amendment tothecomplaint. The Prosecutorfailedtoseekthetrial court's permission to correct this technical defect before finding, thus prejudicing the right of the appellant. Rule 7 (e) - Pohnpei Rules of Criminal Procedure. We feel the failure of the Prosecutor
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in this regard should not be used to penalize the defendant. As the appellant correctly argued,the"due process clause of out: Constitution requires proof beyond reasonable doubt as condition for criminal conviction." Demanding the defendant to rectify this technical defect on ground of the old doctrine of variance would amount to shifting the burden of proof from the prosecutor to the defendant. In all criminal prosecutions the accused shall be presumed innocent until proven guilty beyond a reasonable doubt. <Art. 4 Sec. 9 (1) - Pohnpei Constitution>. We feel ground one of the appellant's appeal is made out, that the guilty verdict of malicious mischief should be reversed.
II. Petit Larceny
The appellant's ground two is similar to that of ground one, that is, whether there is sufficient evidence to sustain the trial court's finding of guilty to the count of petit larceny where government fails to show the owner of the property and the value of the property taken.
The appellant's ground two raises two questions: one, whether the true owner of personal property stolen, taken and carried away should be particularly described or named in the
[2P.S.Ct.R.523]
complaint or information and proved at trial;, and two -whether the exact value of the personal property taken be proved beyond reasonable doubt.
[9-10] As to the proof of the ownership of the personal property, the language of the petit larceny statute, 11 TTC 851, does not suggest that the owner be particularly described or named. It is sufficient that the ownership or the possession of the property stolen is in some person other than the thief. 50 Am Jur 2d, Larceny, Section 22. Although the ownership of the stolen property must be in someone otherthan the thief, it is not necessary that the owner shall be known. Miller on Criminal Law, West Publishing Co.; 1934, pp. 346-347. In a number of United States cases, the court said:
"The actual status of the legal title to stolen property is no concern of the thief. Possession in person from whom property is stolen is sufficient ownership in a larceny case." Martin v. TerrItOry, 43 P 1067; Cassoll v. State, 128 P.2d 1016-1017.
While these cases deal with foreign statutes where ownership of property stolen is in question, the Trust Territory petit larceny statute similarly gives rise to the same question as is experienced in this case. Is it necessary under the Trust Territory petit larceny statute that the prosecutor proves beyond a reason-
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able doubt who actually owned the property stolen?
[11 ] If we are to adopt the appellant's theory that in larceny cases, the government must prove the actual owner of property stolen, it would mean that we are granting every body the license to take any personal property wherever he finds it where no owner is known to him. This is absurd and we can not grant that. Forthe reasons given and the foregoing cases consulted, we hold that in a petit larceny prosecution under the Trust Territory law, <11 TTC 851 > the Government need not prove the actual owner of a property stolen, so long as the record is clear that the property stolen is not the property of the thief.
[12] The appellant's second point on the second ground again deals with the insufficiency of the evidence to prove the actual value of the property stolen. It is a general principle of criminal law that the burden on proof rests upon the prosecution to prove every essential ingredient of its case, and the connection of the accused with the crime, so that the guilt of the accused may appear to the satisfaction of the court beyond a reasonable doubt. This principle is embodied as part of the fundamental rights granted to an accused pursuant to Article 4 of the Pohnpei State Constitution.
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[13] Thus, larceny being a crime, in order for one to be convicted thereof, it is necessary that the prosecution proves beyond a reasonable doubt all of the essential elements. Trust Territory v. Mick, 4 T. T. R. 147.
It is clear from the definition of larceny <whether petit or grand> by 11 TTC Sections 851 and 852 as well as by Section 7-3 - grand larceny and 7-5 - petit larceny of the Pohnpei Crimes Act <S.L. 1 L-3-85> that an element to be proved beyond a reasonable doubt is, among other things, the value of the property involved in the offense: it should be $50 or more in the case of grand larceny underthe Trust Territory code, and if the value of the property involved is less than $50.00 it should be petit larceny; under the Pohnpei Crimes Act the value of property involved in grand larceny should be $100 or more but less than $1,000; and less than $100 in the case of petit larceny.
Other jurisdictions have held that where the value of the chattel stolen determines the grade of the offense, as in the case of petit and grand larceny, the value must be alleged and the prosecution must prove it to be of the statutory amount Wright v. Commonwealth, 196, Va, 132; 82 SE 2d 603. Thus, when grand
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larceny is charged and the evidence shows the taking of chattels but fails to establish their market value as of the taking, the accused can be convicted of no greater offense than petit larceny. Escobar v. State 17ALR 3rd 1390.
In a case decided in Oregon the court held that an indictment <under our jurisdiction we use information or complaint>, alleging that the value of stolen property was less than $35 was sufficient to charge an offense of petit larceny, although the indictment did not state the specific value of the articles alleged to have been stolen, either in the aggregate or separately. In that case the court held that although value is an essential ingredient of the crime of larceny in order to determine to which class the offense belongs, the indictment was sufficient. It was of course necessary for the State to prove that the article mentioned in the indictment had some value and hence testimony is admissible to show such value. State v. Poyntz, 120 P. 2d 966. The Trust Territory High Court had held that in a criminal prosecution for petit larceny, since the trial judge is assumed to have sufficient acquaintance with local values of new and used merchandise, his findings in this regard will be followed by an appellate court. Fanamthin v. TTPI, 1 TTR 412.
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[14-15] We feel this appeal presents similar situations as described in other jurisdictions. We hold therefore that the value of the property involved in the offense of petit larceny is one of the ingredients in the offense which must be proved beyond a reasonable doubt primarily for the purposes of grading of the offense. The value proved need not be the real or actual value; it may be the market value. And so long as the prosecution leads sufficient evidence to satisfy the trial judge that the value of the property stolen falls within the statutory limit of less than $50 under the T.T. Code; <less than $100 under the Pohnpei Crimes Act S.L.1.L.-3-85>, that should discharge the government's burden of proof of value. It would lead to an absurd result in our society if the courtwould let athief off the hooksimply becausethe value interms of money of the property alleged to have been stolen is not proved.
[16] It should also be noted here that the complaint did not specify the value, of the property stolen, but named the offense of petit larceny and the T. T. Code section. From this fact it must be presumed that the value was within the statutory limit of the T. T. Code, and the fact that the value was not set forth in the complaint was not fatal.
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Conclusion
The appellant's conviction of count i <Malicious Mischief> in the Trial Court is reversed, and his conviction with respect to Count 2 <Petit Larceny> is AFFIRMED.
This case is remanded to the Trial Court for the purpose of adjusting the sentence order to conform with this opinion.
YOSTER CARL, Associate Justice, concurring. JUDAH C. JOHNNY Associate Justice, concurring in Count 2, but dissenting on Court 1.
JUDAH C. JOHNNY, Associate Justice, dissenting,
The appellant, a young man from Uh Municipality, State of Pohnpei, was charged in the Trial Division with two criminal offenses to wit, Count i, Malicious Mischief, and Count II, Petit Larceny. He was tried and convicted of each count, and sentenced to three months of imprisonment for the first count and two months of imprisonment for the second count. He appealed from the judgment of the Trial Court.
I join the majority opinion in affirming the conviction of petit larceny.
My view in the charge of malicious mischief as supported by
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the evidence differs from my colleagues, necessitating this minority opinion. I join the majority opinion in finding that while the complaint described the door destroyed, or damaged as the main door of Ellen's Market, the evidence shows that the door destroyed ordamaged was the door of a restroom. I join the majority further in finding that there is a technical defect. I do not however, join the majority opinion that such technical defect, or in other terms variance, is a fatal variance. Consequently, I respectfully dissent. I hereunder submit my dissenting opinion.
As stated, evidence adduced at the trial showed that the defendant damaged the door for the restroom. There is a clear disagreement between the complaint and the evidence produced. There therefore is a variance.
In the law of criminal pleadings, a variance is a disagreement between the allegations in the indictment or information and the proof (evidence), as to some matter which is legally essential to the charge. Fox v. United States, 45 F.2d 364; Whartons Criminal Law and Procedure (12th Ed., Vol. 5, Chapter 84 Section 2054;.
The wording of the statute clearly provides in pertinent part,
"Every person who shall unlawfully destroy, damage, or otherwise injure the property belonging to another, including;the property of the
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Trust Territory or any district or municipality thereof ...shall be guilty of malicious mischief..." 11 T.T.C. 951.
The criminal complaint charging the defendant is also clear, reading,
"The undersigned under oath charges and says that on or about the 26 of January, 1985, at Ellen Ehsa Market, Pohnpei State, Federated States of Micronesia, Yoster Aron committed the criminal offense (s) of
Count I
Malicious Mischief, by unlawfully going to Ellen's Market and damaged the main door of this market."
I dissent from the majority in the way that the question of variance is treated in this appeal, for two reasons:
First, the failure of the defendant to raise the issue of variance at the trial. In my review of the records certified to this Court, consisting proceedings of the matter at trial, I fail to find anywhere that the defendant raised any objection to the pleading, ordemurer, on ground of variance. Granted the defendant moved for directed verdict, his supporting argument directs to the argument that the evidence did not prove that the defendant destroyed, damaged or injured, any door. (See defense Motion for Dismissal on ground of insufficiency of evidence; filed on April 12, 1985, page two). The defendant did not even use as ground of appeal, the subject of
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variance. The first time that the issue of variance in this whole process, was raised is in the defendant's appellate brief, which was filed on October 4, 1985. (see page two). And even in that brief, the defendant did not raise the question of "destruction" or "damage" to different doors. It seems that he pursued his line of argument that there in fact was no destruction of any property. Note that he argued that of the two Government witnesses, one testified that the defendant destroyed the restroom door and other testified that he entered the main door to the market. His line of reasoning, to me, was that the evidence contradicts each other and therefore does not prove beyond reasonable doubt that there was malicious mischief as charged. There, the defendant never on trial made a claim of variance.
"Objection for a variance cannot be made for the first time on appeal." State of Minnesota v. Edward Sweeney, 73 A.L.R. 380 384.
"A variance between the pleading and proof cannot, as a general rule, be raised for the first time on appeal or writ of error. 5 Am Jur. 2d, Appeal and Error, Section 598; Also see Harris v. United States, 227 US 340, 57 L. Ed 534, 33 S. Ct 289, wherein the appellant contended that there was a variance between the allegation and proof, in that the women transported were named in the indictment as Nellie Stover and Stella Larkins, and the proof showed the tatter's name was Estelle Bowles and
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the right name of Nellie Stover was Myrtle Watson. The Supreme Court held the point was not made either in the trial court or in the court of appeals, and held it too late, affirming judgment of the lower court."
Under the view discussed above, even if there is in fact a variance between the pleadings and the proof in the case before us, I view that the defendant, having failed to raise the issue, now waives his right and cannot raise it on appeal for review.
Second not all variances are subject to reversal. Even if one will construe that the defense still is entitled to review on the question of variance, I would note that while variance may be ground for reversal, not all variances are subject to reversal. At common law, very strict conformity was required between the allegation of the indictment, information and the proof, even in minor and immaterial respect. Kemp v. United States, 41 App. DC 539, 51 LRA NS 825, Cert den 234 U. SS. 756, 58 L. Ed 1579, 34 S. Ct. 675. But this rule has been greatly relaxed, and the courts no longer regard sequence of variance with such seriousness as before. The rule now generally established is that, to make a variance between allegation in an indictment or information and the proof fatal, it must be material and prejudicial. The general rule is that the evidence in a criminal case must correspond with the
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allegations of the indictment which are essential and material to charge the offense. This rule is based on the requirement that the accused shall be definitely informed as to the charges against him, and that he may be protected against another prose ution for the same offense. Berger v. United States, 295, U.S. 78, 79 L Ed 1314, 55 S. Ct. 629. There is no necessity for the prosecution to prove that which is not an element of the offense and which, under the circumstances of the case, is negated by the averment of the complaint which fully charges the offense denounced by the statute. A claim of variance based on failure to prove such matters is without force. Adams Exp. Co. v. Kentucky, 206 US 120, 51 L Ed 987, 27 S. Ct. 606; Adams Exp. Co. v. Kentucky, 206 US 138, 51 L Ed 992, 27 S. Ct 608; American Exp. Co. v. Kentucky, 206 US 139, 51 L Ed 993, 27 S. Ct. 609.
The charge of variance, to be sustained, must have reference to some matter essential to the indictment or information, and in general, the descriptive averment of the mode in which an offense has been committed are not required to be strictly proved, if in substance the evidence supports the allegations. Bennet v. United States 227 US 333, 57 L ed 531, 33 S Ct. 288.
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In the case before us, the appellant was charged for having committed the offense of malicious mischief. The essential elements of the offense require that:
1. the act must be unlawful;
2. the item against which the act is done must be property of another (including Trust Territory,district or municipal government); and
3. the property must be destroyed, damaged, or injured.
These, to me are the tests of the alleged criminal act of Yoster Aron, to constitute malicious mischief. If what he did constitutes these elements of the crime, he must be held liable for his act and the finding of the lower court affirmed. If the evidence fails to show beyond reasonable doubt, that the act about which he is charged constitutes these elements, he must be found innocent, and the findings of the court below reversed.
In applying the elements to the act which has been alleged to be criminal in this case, I will analyze them by putting them to some tests. In doing so, perhaps one simple way is to attempt to answer some questions as follows:
1. Is the act unlawful?
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That is, if the evidence establishes that Yoster Aron "destroyed" "damaged" or "injured" the door is the act unlawful? For an act to be unlawful, it must be done without authority of law. Fooshee v. State, 108 P 554. Further, to "unlawfully" "destroy" "damage" or injure" in my view connotes that the defendant did not have the right to do the act, but did it illegally and wrongfully. As in this case, l view that Yoster Aron does not have any right to destroy, damage or injure any door, be it the main door or the door to the restroom. He has no relation to Ellen and further does not own, have possession of any of the buildings involved in this matter, nor did he obtain consent or authorization to do the act complained of. If he, in fact, destroyed the restroom door, it follows that his destroying the property is unlawful.
2. Is the door the property of another?
Although in a few jurisdictions, malicious mischief may be committed as to personal property only, in general, all kinds of property, both real and personal, are subjects of the offense. 52 Am Jur. 2d, Malicious Mischief, Section 11. The reading of the statute on malicious mischief as applied in the case at bar is one which follows the general holdings-that is, it includes all kinds of property,
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both real and personal. If it is otherwise the statute would have specifically stated so. The door is included. It is clear from the evidence that the door is the property of someone other than the defendant. Every house in Pohnpei is the property of someone, or the Government.
3. Was the door destroyed, damaged or injured?
The evidence as we have found it, proves that Yoster Aron destroyed a door. The term " destroyed" is used in the majority opinion, to define the Pohnpei term "kauwehla". "Kauwehla" can also connote "damage". Notwithstanding, whether the extent of harm to the door be "destroyed" or "damaged", either condition constitutes an element of the crime. Therefore, considering all the elements together, notwithstanding the variance as relates to the two doors, it is clear to me that all the elements of malicious mischief are constituted. Whetherthe door be the main doororthe restroom door YosterAron had no legal right to destroy ordamage it. The door is not the property of Yoster Aron, but is the property of another. It appears Ellen Market has at least possessive or use right in it, as is evidenced by their storage of the radio in it. It is common knowledge that the cluster of buildings in which Ellen
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Market and other markets are located is public facility under lease to the market owners. As such, it is not necessary to prove who owns the property or the restroom. See 52 Am Jur 2d, Malicious Mischief, Section 20.
The crucial question here, which makes the difference in our views is whether the technical defect or variance between the complaint and the proof is fatal or material to the offense as to entitle the defendant to a reversal. The majority view is that the variance suffices reversal; this minority view is that the variance is not fatal and therefore entitles the appellant to no reversal. I hold that the variance, developed from the the difference as to which door was actually destroyed, does not constitute a fatal variance to warrant a reversal. The law, 11 TTC 951 does not require specific description of the property. So long as it is proved that the item destroyed, damaged or injured is the property of another, and the defendant has no legal right to do so, the element of malicious mischief is met. There are of course, defenses in the crime of malicious mischief, but I will not discuss them because they were not employed in this matter.
"The test of materiality of a variance is whether the indictment or information so fully or correctly informs the defendant of the criminal
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act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, orplaced in dangerof being twice put in jeopardy for the same offense." People of the State of California v. Smith, 323 P 2d 435. Also see State v. Shoeone, 499 P2d 834.
In Smith, where the indictment charged the offense having been committed on April 8, 1956, and proof showed the act was committed on March 8, 1986, and his own witnesses testified to event on that date, the court held that the defendant was not misled in making his defense, for he knew that the date of the alleged offense was March 8,1956, and his own witnesses testified on that date. Here, the allegation is that he destroyed a main door at the market. Evidence showed the door is a restroom door. The restroom and the market are in the same cluster of leased market places. My view is that it is not a fatal variance where the complaint charges thatthe offense was committed on the main door and proof indicates a restroom door. The restroom and the market are in the same cluster of buildings located closely to each other. The restroom is a necessary part of the cluster of markets, including Ellen Market. Both doors are the property of someone other than the defendant. In my view, the defendant was not misled as to the offense charged, since destruction of either the restroom door or
[2P.S.Ct.R.539]
the main door of the market would have constituted an element of the offense. He was not misled by the proof, and even if he was, he did not object on ground of variance. He knew, during trial that he was by evidence, liable for the destruction of the restroom door but he did not raise issue of variance. Even if he did, the variance is immaterial to the offense charged.
The question of jeopardy is another consideration for a fatal variance, in consideration that a variance would be material as to place the defendant in danger of being twice put in jeopardy for the same offense. In my view, the defendant is not in danger of being placed in jeopardy if he is convicted as charged, because it is well settled that on a plea of double jeopardy, extrinsic evidence is admissible on the trial to identify a crime of which a defendant has been convicted. People v. Williams, 27 Cal. 2d 220, 226,163 P 2d 692, 695; State v. Smith, supra. This means that if the defendant is convicted of the complaint charging that he destroyed the main door, to the market, when evidence in the case shows it was the restroom door that he destroyed, the State cannot bring another case charging that he destroyed the restroom door, arising from the same incident, for to do so will constitute double jeopardy.