Sowles v Clawson.

the use made of the ten-foot alleyway for more than thirty years, and, further, to show the use made of the entire roadway. It was likewise shown that the defendant, before this suit was commenced, erected a building on the west side of the roadway, which covered the five feet off from the east end of lot 2 the entire length of the building.

After the testimony was all admitted, and notwithstanding the objection to the introduction of evidence, for the purpose of showing an abandonment, was sustained upon the ground that no abandonment had been pleaded and was not in issue, the findings of fact and conclusions of law were so framed as to show an abandonment or extinguishment of the defendant's right to use the roadway, and the court, among other things, decreed that "any right-of-way heretofore enjoyed or used over any portion of the said roadway, and particularly that certain ten-foot roadway, being five feet off the east side of lot 2, and five feet off the west side of lot 1, has been extinguished by the acts of the said defendant in taking exclusive possession of and erecting permanent structures upon the portion thereof originally contributed by the predecessor in title of the said defendant, John R. Clawson, from the said lot 2." The appellant insists that this decree is not supported by the pleadings, and that he was neither called upon nor prepared to meet such an issue.

We are of the opinion that this contention is well founded. The findings and decree show an abandonment by the defendant of all his rights in the right-ofway, and yet no abandonment or extinguishment was pleaded. Clearly, there is a material and fatal variance between the pleadings and the findings and decree. This part of the decree goes beyond the pleadings. It virtually declares that, because of certain acts committed by the defendant, he has no right in that street at all, while the complaint admits that he acquired rights therein by agreement but alleges that those rights were limited to property situate on the east side of the street, and

Sowles v. Clawson.

the answer to the counterclaim, as to his point, simply denies that he had any right, either by adverse possession or otherwise, to use the street as an appurtenance to property situate upon the west side thereof. The defendant in an action can only be called upon to answer the material allegations of the complaint, and upon such allegations the issues are formed, and in the absence of any amendment to the pleadings, as in this case, judgment must be rendered upon such issues only. A party cannot declare on one thing and recover on another. Peay v. Salt Lake City, 11 Utah 331, 40 Pac. 206. That in every action the plaintiff must, in his complaint, give the defendant fair notice of what heclaims, is an elementary rule of pleading; and if, at the trial, he finds a deviation in his evidence from his allegations in the complain, he should amend, if the variance is not such as to preclude an amendment, so that when the judgment is announced it will be secundum allegata et probata. Among the reasons for this certainty of pleading is, so that the judgment when rendered, will be a bar to any subsequent suit for the same claim. 11 Ency. Pl. and Pr., 872, 878, 879; 22 Ency. Pl. and Pr., 602, 603; 1 Chitty, Pl., 255; Peay v. Salt Lake City, 11 Utah 331; 40 Pac. 206; Vance v. Whalon, 7 Utah 44, 24 Pac. 672; Idaho Co. v. Insurance Co., 8 Utah 41, 29 Pac. 826, 17 L. R. A. 586; Turner v. Insurance & Trust Co., 10 Utah 61, 37 Pac. 91; Taylor v. Keeler, 50 Conn. 346; Brayton v. Jones, 5 Wis. 117; Eib v. Martin, 5 Leigh 132. Having concluded that there is a fatal variance in the case, we refrain from deciding any other question presented upon this appeal.

The judgment must be reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial, and permit the parties to amend their pleadings if they so desire. It is so ordered.

BASKIN, C. J., and MCCARTY, J., concur.

State v. La Chall.

THE STATE OF UTAH, Respondent, v. ALBERT LA CHALL and JOHN BARRY, Appellants.

No. 1536. (77 Pac. 3.)

1. Criminal Law: Robbery: Indictment: Value of Property Sufficiency.

Under Rev. St. 1898, section 4175, providing that robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear, an indictment not alleging the value of the money taken "in current United States silver coin" was sufficient, and an amendment inserting these words was not prejudicial to defendant.

2. Same: Consent: Sufficiency.

The indictment having charged that the robbery was "from the person and immediate presence of one R., and by means of force and fear, and by threatening to shoot and kill him," and that defendants feloniously took a certain sum from the possession of said R., was sufficient, and the insertion of the words "and against his will" was unnecessary and not prejudicial.

3. Same: Appeal: Verdict not Disturbed, When. Where, on appeal from conviction for crime, there was evidence which strongly tended to show the guilt of the accused, the appellate court cannot disturb the verdict.

(Decided June 17, 1904.)

Appeal from the First District Court, Box Elder County.-Hon. C. H. Hart, Judge.

The defendants were convicted of the crime of robbery and appealed.

AFFIRMED.

Nels Jensen, Esq., for appellants.

Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State.

State v. La Chall.

BASKIN, C. J.-The defendants, having been found guilty of the crime of robbery, were sentenced to three years' imprisonment in the penitentiary.

1

Section 4175, Revised Statutes 1898, provides that "robbery is the felonious taking of personal property in the possession of another, from his person, or immediate presence, and against his will, accomplished by means of force or fear."

The robbery for which the defendants were convicted was charged in the information in the following terms:

"That said Albert La Chall and John Barry on the twenty-seventh day of November, 1903, at Box Elder county, State of Utah, then and there willfully, unlawfully, and feloniously, from the person and immediate presence of one David Radcliff, and by means of force and fear, and by threatening to shoot and kill him, the said David Radcliff, they, the said Albert La Chall and John Barry, did feloniously take the sum of four and 50-100 ($4.50) dollars, then and there in the possession and the property of said David Radcliff, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Utah."

After the defendants had entered the plea of not guilty, and the jury had been empaneled and sworn, the district attorney, over the objection of the defendants, was permitted to amend the original information by substituting in place of the portion of the same above quoted the following: "That the said Albert La Chall and John Barry on the twenty-seventh day of November, 1903, at Box Elder county, State of Utah, did then and there willfully, unlawfully, and feloniously, from the person and immediate presence of one David Radcliff, and by means of force and fear, and by threatening to shoot and kill him, the said David Radcliff, and against his will, they, the said Albert La Chall and John Barry, did then and there feloniously take the sum of

28 Utah-6

State v. La Chall.

$4.50, in current United States silver coin, then and there in the possession and the property of the said David Radcliff. The appellants assign as error the insertion of each of the italicised phrases, on the ground that they embrace matters of substance, and not of form, and were not therefore, admissible, under section 4694, Revised Statutes 1898, as an amendment to the information, after the defendants had entered their pleas.

Under the statute of the State of Maine which provided that "whoever by force and violence, or by putting in fear, feloniously steals and takes from the person of another property that is the subject of larceny, is guilty of robbery" (Revised Statutes, c. 119, sec. 15), two persons were charged with having, in violation of said statute taken from the person of one, Emerson, certain money and one silver watch and one watch chain. Upon conviction the accused made a motion in arrest of judgment on the ground "that the indictment contained no allegation that the money or watch and chain therein mentioned had any value. On appeal (State v. Perley, 86 Me. 427, 30 Atl. 74, 41 Am. St. 564) it was held that the indictment was sufficient. In the opinion the court said: "It must be observed that there is no provision of this statute which makes the amount of propery taken an essential element of the offense, and there is no statute in this State which creates degrees in robbery, or in any way makes the punishment of the offense dependent upon the value of the property taken. Nor is there anything in the nature of robbery, as defined by the common law, from which it appears that the value of the property has ever been deemed of the essence of the crime. Where the value is not essential to the punishment, it need not be distinctly alleged or proved. The jury must be satisfied, however, that the goods were of some value, and they may infer it without separate proof, either from inspection of the articles, or from the description of them by the witnesses. 2 Bish. Cr. Proc., sec. 751; Com. v. Burke, 12 Allen 182; Com. v. Lawless, 103 Mass. 425; State v. Gerrish, 78 Me. 20, 2 Atl. 129."