State v. Congrove

Ladd, J. The articles described in the indictment Avero together in a shed, and the evidence tended to show that the defendant stole all of them at the same time and in the same 2 act. Though these belonged to four different persons, severally, and not jointly, the transaction constituted but a single offense. Lorton v. State, 7 Mo. 55 (37 Am. Dec. 179); State v. Hennessey, 23 Ohio St. 339 (13 Am. Dec. 253); Wilson v. State, 45 Tex. 76 (23 Am. Dec. 602); State v. Emery, 68 Vt. 109 (34 Atl. Rep. 432). See State 3 v. Peirce, 77 Iowa, 245. In such a case, the partieu-lar ownership of the several articles should -have been averred. People v. Johnson, 81 Mich. 573 (45 N. W. Rep. 1119); 1 McClain’s Criminal Law, section 602. But the indictment laid the ownership of the property in four persons jointly, while the proof was that a distinct portion of* it belonged to each. That this would have been a fatal [68] anee at common law is not questioned. Widner v. State, 25 Ind. 234; State v. Ellison, 58 N. H. 325. The purpose in averring ownership in another is to negative title in the accused, and to advise him of the charge lodged against him. Ownership in some one' other than the defendant, and not 4 any particular person, then, is of the essence of the crime. If the act be fully identified in the indictment in other respects, and this rebuts the possibility of ownership in the accused, the mere mistake as to the name of the owner cannot prejudice the defendant. For this reason, our Code provides that “when an offense involves the commission of or attempt to commit an injury to the person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to name of person injured or attempted to be injured is not material.” Section 5286. The offense was sufficiently described in other respects to1 identify the act. The material inquiry was, did the accused steal the property ? In what way was he misled or prejudiced by the proof that a portion of it belonged to each individual named in the indictment, rather than all of them jointly? In State v. Cunningham, 21 Iowa, 433, the indictment charged that treasury notes were owned by George W. Archer, and the proof showed them to belong to a partnership composed of Archer and his brother. This was held not a fatal variance, under the section quoted. In State v. Carr, 43 Iowa, 418, the defendant was convicted on proof that he robbed John Slroppick, erroneously named John Kopek in the indictment. In State v. King, 37 Iowa, 462, it was held that proof of the sale of intoxicating liquors to one person was not a fatal variance from an allegation of a sale to several persons jointly. See State v. Rivers, 68 Iowa, 615, and State v. Wrand, 108 Iowa, 73. The offense was described with sufficient exactness to identify the particiilar act charged, and there is nothing in the record †0 warrant the inference that the accused was prejudiced by [69] the mistake in the allegation of ownership. The evidence ought to have been received, and the cause submitted to the jury.-REVERSED.