993

Kansas Comp. Laws, c. 31, § 84, providing that if a person steal a deed, being the act of another, by which any interest in real property is conveyed, he shall be held guilty of grand larceny, etc.' The words "a pair of pants" in an indictment, sufficiently describe a thing which may be the subject of larceny. An indictment is not vitiated by the use of the word "property" instead of "goods and chattels.' So an indictment for stealing a hat need not describe it as a black or white hat, or a felt or beaver.* An indictment alleging that the prisoner did break and enter the cellar, “and one keg of wine of the value of fifteen dollars, of the goods and chattels of J. W. Hale, in the said house and cellar then and there being found, then and there feloniously did steal," etc., is good as an indictment for petit larceny.' And so is an indictment charging the theft of sundry different articles of clothing and household goods, describing them only by number and kind, and alleging an aggregate value of the whole, with a statement that a more specific description was to the grand jurors unknown."

1 State v. Sullivan, 43 Kan. 563.

* State v. Johnson, 30 La. An. Part II 904.

State v. Bayonne, 36 La. An. 761.

State v. Martin, 82 N. C. 672.

'State v. Hupp, 31 W. Va. 355. A description of the goods stolen as "ten vards of brocade silk, of the value of thirty dollars; fifteen yards of bronzecolored satin, of the value of nineteen dollars," etc., all of the value of a specified sum, is sufficient.-Harrington v. State, 76 Ind. 112. So also of a description, "one book of the value of six dollars, the personal property of A."-Turner v. State, 102 Ind. 425. And of a description, "a

parcel of oats."-State v. Brown, 1 Dev. 137; 17 Am. Dec. 562. And of a description, a "certain instrument of writing containing evidence of an existing contract for the conveyance of real estate, to-wit: a town lot in the city of A.," etc., of a specified value, the property of M. F.- Dignowitty v. State, 17 Tex. 521; 67 Am. Dec. 670.

6

Ware v. State, 2 Tex. App. 547. On the other hand, an indictment for stealing "a pocketbook and contents of the value of twenty dollars," without describing the contents, does not charge larceny except of the pocketbook.-Johnson v. State, 32 Ark. 121. And a description of the property stolen, as "some bottled beer of the value of two dollars and fifty cents," is insufficient, on motion in arrest of judgment.-State v. Hoyer, 40 La. An. 744. So of a description one case of merchandise of the value of six dollars," containing no excuse for the want of a more full and definite description.-State v. Dawes, 75 Me. 51. And of

CHAPTER XIII.

AVERMENT OF OWNERSHIP.

§ 89. Necessity of the averment.

90. Sufficiency, generally.

91. Ostensible or apparent owner. 92. General and special owners. 93. Goods and chattels of A." 94. Property in hands of bailee.

95. Property levied on by officer.

96. Articles furnished by parent to child.

97. Property of married women.

98. Property of partners or other joint owners. 99. Estrayed animals.

100. Property in hands of tenant.

66

101. Alleging ownership in an estate."

102. Ownership of matter stolen from the mail.

103. Property of corporations.

104. Unknown owners.

105. Amending the allegation.

106. Averment of possession, whence taken.

§ 89. Necessity of the averment. The well settled rule is that in an indictment for larceny, the ownership of the property or thing stolen must be alleged, or the failure to allege it must be excused by proper averments, and a variance between the allegations and the proof is fatal to a conviction.' An indictment which does not allege the property to have been that of some person other than defendant is fatally defective even after verdict. Thus an indictment is defective

an indictment for larceny of one pound of "meat."-State v. Patrick, 79 N. C. 655; State v. Morey, 2 Wis. 494; or of "one certain trunk or chest containing various articles of clothing, jewelry, etc."-Potter v. State, 39 Tex. 388; and of an indictment charging the stealing of certain papers of the value of $110, not otherwise describing the papers charged to have been stolen.-Robinson v. Commonwealth, 32 Gratt. 866; and of an indictment charging burglary with intent to commit larceny, which alleges that one pair of pants "and other goods," of the value of $24, without specifying the other goods, were stolen.-State v. McClung, (W. Va.) 13 S. E. Rep. 654.

1 Underwood v. State, 72 Ala. 220; People v. Frank, 1 Idaho T. 200; Reed v. Commonwealth, 7 Bush 641; People v. Stewart, 44 Mich. 484; Stone v. State, 12 Tex. App. 193.

2 People v. Hansleman, 76 Cal. 460.

in charging that produce severed from the soil was part of a
crop produced" by A.
by A. The averment of ownership is
indespensable.' The thing stolen must be charged to be the prop-
erty of the actual owner, or of a person having a special property
as bailee, and from whose possession it was stolen.' If the
ownership be not known, it must be averred to be the property
of some person or persons to the grand jurors unknown.' An
allegation that the accused "did fraudulently take and steal
a horse from the possession of John Dennis " is not an allega-
tion of ownership. It is not, however, a material part of the
offense that the property should have been stolen from a par-
ticular individual. The only object of setting forth the name
of the owner is to identify the transaction, so as to enable the
defendant to protect himself by proper plea against another
prosecution for the same offense. The indictment may charge
that the owner is unknown to the jurors, and this would be
sufficient."

§ 90. Sufficiency, generally.-The indictment should allege the ownership in the thing stolen, as of the date when the offense was committed. Ownership is sufficiently alleged by an averment that the property was taken from the posession of A., "the owner thereof."' An averment that the horse stolen "belonged to one W.," sufficiently shows that it was W.'s property when it was stolen, without prefixing the words "then and there."" " Where the thing stolen is a coffin

1 State v. Sheppard, 33 La. An. 1216.

* People v. Bennett, 37 N. Y. 117; 93 Am. Dec. 551.

Winder v. State, 25 Ind. 234; Com. v. Manley, 12 Pick. 173; Com. v.

Morse, 14 Mass. 217; Reed v. Com., 7 Bush 641.

* Maddox v. State, 14 Tex. App. 447.

5 State v. Bell, 65 N. C. 313.

6 People v. Lewis, 64 Cal 401.

'Mathews v. State, 17 Tex. App. 472. An information charged that defendant, "on or about the 17th day of November, 1889, did *

*

* steal

which said check was then and

there of the value of $95.50, and was the property of said P." Held, that this sufficiently alleged that the check was the property of P. at the time the offense was committed. DeHaven, J., dissenting.-People v. Arras, (Cal) 26 Pac Rep. 766.

* State v. Griffin, 79 Iowa 568.

containing the remains of a human being, the coffin is properly charged to be the property of the person who furnished it and buried the deceased.' The ownership of whiskey stored in a government warehouse, is properly laid in him who has the right to take it away on the payment of the tax. An indictment in several counts, where a person is charged as the owner in each count, is not bad for duplicity. A superintendent of another's plantation is the servant of the employer, and an indictment for larceny of part of a crop thereon, charging the same as of the property of the superintendent, is insufficient.* In South Carolina, in an indictment for breach of trust with fraudulent intent, ownership of the property must be alleged with the same accuracy and after the same rules as in common law larceny."

§ 91. Ostensible or apparent owner. It is sufficient to lay the title of the property stolen in the ostensible or apparent owner; and cattle at large in the woods or prairies must be considered as in the possession of the owner. So, a horse on its accustomed range is, in contemplation of law, in the possession of its owner.' The ownership of timber cut on lands is properly laid in one who was in possession asserting title; and these facts, in the absence of evidence to the contrary, are sufficient proof of such averment without the introduction of the title deeds. So the goods may be described as the property of one who had possession, but who, by reason

1 State v. Doepke, 68 Mo. 208; 30 Am. Rep. 785.

2 State v. Harmon, 104 N. C. 792.

3 Cooper v. State, 79 Ind. 206.

4 Heygood v. State, 59 Ala. 49.

State v. Shirer, 20 S. C. 392. A county treasurer, in pursuance of the custom, and for the purpose of paying the State tax, indorsed and sent to the State Comptroller a draft for $7,500; the Second Deputy Comptroller lawfully received, indorsed and delivered it at the State Treasurer's office to P., a cashier therein, whose duty it was to receive such drafts and moneys and to deposit them daily in bank. Instead of depositing the draft, P. converted it to his own use. Held, that P. could properly be convicted of larceny under an indictment alleging ownership of the draft to be in the State of New York.-Phelps v. People, 72 N. Y. 334.

State v. Everage, 33 La. An. 120. Compare State v. Kane, Id. 1269. Huffman v. State, 28 Tex. App. 174; Moore v. State, 8 Tex. App. 496. 8 Morningstar v. State, 52 Ala. 405.

of having purchased them from a thief, had no title thereto.' A check may, under Mass. Gen. Stat. ch. 172, § 12, be described as the property of the payee, though stolen from the custody of another person who had no interest in it.'

$92. General and special owners.-The property may be averred to be in either of two persons, where one has the general property and the other the special property in the thing taken; and this although the goods were never in the real owner's possession, but only in that of the special owner.* Thus, the superintendent of the poor is a mere agent of the county; and if goods purchased by him for the support of the poor be stolen, the property may be laid either in the county or in him. So, an indictment for stealing money from a guardian, may allege that it is the property of the guardian.“ An innkeeper may acquire sufficient special property to support an allegation of ownership; but this will not prevent an allegation of property in the general owner. It may be laid as the property of either.' Where goods are in the hands of a receiver, as such, he has a special property therein, and, in

1 Com. v. Bowers, 3 Brews. 350. Where the goods of A. are stolen by B., and afterward they are stolen from B. by C., an indictment against the latter may charge them to be the property of either A. or B.-Ward v. People, 3 Hill 395.

* Billard v. State, 30 Tex. 367; 94 Am. Dec. 317; Moseley v. State, 42 Tex. 78; Cox v. State, 43 Tex. 101; King v. State, Id 351; Gaines v. State, 4 Tex. App. 330; Crockett v. State, 5 Tex. App. 526. An indictment for theft of cattle alleged the ownership to be in one F., who testified that the animals, though the property of his sister, were, when taken, in his possession and care and under his control, with full authority to sell them, and that he held a power of attorney from his sister; but the power of attorney was not produced. Held, that the ownership was well alleged to be in F., and his testimony, irrespective of the power of attorney, was admissible in support of the allegation.-Turner v. State, 7 Tex. App. 596. + State v. Gorham, 55 N. H. 152; State v. Mullen, 30 Iowa 203; Com. v. O'Hara, 10 Gray 469; Hill v. State, 1 Head 454. In an indictment for stealing from the house of A. an article belonging to B., it is not necessary either to allege or prove that the article stolen was under the control of or belonged to A-Hill v. State, 41 Tex. 157.

People v. Bennett, 37 N. Y. 117; 93 Am. Dec. 551.

Thomasson v. State, 22 Ga. 499.

Barnes v. People, 18 Ill. 52; 65 Am. Dec. 699.