Case 81 — Prosecution of Robert and Lula Vineyard for Larceny.

September 23.

#### Commonwealth *v.*Vineyard, &c.

APPEAL FROM CARLISLE CIRCUIT COURT-R. J. BUGG, CIRCUIT JUDGE.

Judgment of Court Directing a Verdict for Defendants.

Appealed by Commonwealth Held Erroneous.

Larceny — Corporation as Owner of Property — Proof of Incorporation — Sufficiency—Statute.

Under Cr. Code Prac. see. 128, providing that, if an offense involve the commission of an injury to or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the owner of the property taken is not material, where defendants are charged in an indictment with stealing property from a duly incorporated company, and the evidence supports the indictment, it is error to direct, a verdict for defendants because the State did not introduce record evidence to show that the company was duly incorporated.

N. B. HAYS, Attorney General, L. MIX and W. H. HESTER, for appellant.

We contend that in an indictment for larceny for stealing property belonging to the Columbus Stave Co. it is not necessary to allege in the indictment or prove on the trial that said Stave Co. was incorporated.

LIST OP CASES CITED.

Crim. Code, sec 128; Robertson’s Crim. Law and Pro. vol. 1, sec. 435; Smith v State, 28 Ind., 321; People v Barrick, 49 Cal., 342; Com. v. Philipburg, 10 Mass, 70; Pisher v. State, 40 N. L. J., 1.69; Johnson v. State, 65 Ind., 204; People v. Jackson, 8 Barb., 637; Com. v. Deadham, 16 Mass., 141; Porter v. Com., 22 Ky. Law Rep., 1658; Reed v. Com., 7 Bush, 642; McBride v. Com., 13 Bush, 338; Com. v. Jarboe, 11 Ky. Law Rep., 344; Johnson v. Com., 10 Ky. Law Rep., 101.

*646J, M. NICHOLS & SON, foe appellee.

It is a general rule of law that “all descriptive averments in an indictment must be proved as laid.”

This indictment describes the alleged owner of the stolen rope to be a corporation. Under this general rule of law it became necessary tor appellant to prove that it was a corporation, and when it failed to so prove, it failed to prove one of the essential things to convict appellees. Clark v. Com., 16 B. Mon., 206; Hensley v. Com., 1 Bush, 11; Am. &Eng. Ency. of Law (1st Ed.), vol. 10, p. 557.

Opinion of the court by

JUDGE PAYNTER.

The indictment charged that the defendants stole certain manilla ropes from the Colnmhus Stave Company, which was a duly incorporated company. The evidence introduced by the Commonwealth tended to show that the ropes were stolen from ,the Columbus Stave Company, and that they belonged to that company, and that it was incorporated. The Commonwealth did not introduce the records to show that it was a duly incorporated company. For this reason the court gave the jury an instruction to return a verdict for the defendants. The case was brought here to review the action of the court.

Section 128, Cr. Code Prac., reads as follows: “If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material.” The indictment was sufficiently certain without an averment that the Columbus Stave Company was an incorporated company. Therefore it was unnecessary to aver that it was an incorporated company. The offense could have been committed whether the company was in*647uorporated or not. Although the indictment averred that it was a corporation, had the evidence upon trial shown that it was not a corporation, still a case would have been made out against the defendants. It was to meet this and similar cases that section 128 was enacted.

In our opinion, the court erred in giving the peremptory instruction. The case is not reversed, because there can not be another trial.