#### The People of the State of New York, Respondent, *v.*Herbert C. Mead, Appellant.

Crimes — when indictment charging defendant with grand larceny for taking money from an association designated by name is not demurrable, because it fails to state that the complainant is an association or corporation.

An indictment charging the defendant with grand larceny for having feloniously appropriated to his own use a designated sum of money, the property of a party bearing a corporate name, is not defective, and, therefore, is not demurrable, because it fails to state that such party is an association or corporation.

*People*v. *Mead,*125 App. Div. 7, affirmed.

(Argued October 28, 1910;

decided November 15, 1910.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 4, 1908, which reversed a judgment of the Ontario County Court sustaining a demurrer to and dismissing an indictment and overruled such demurrer.

The facts, so far as material, are stated in the opinion,

*E. A. Griffith*for appellant.

An indictment charging larceny from a corporation under section 528 of subdivision 2 of the Penal Code is fatally defective unless it avers its corporate existence. (Penal Code, § 528; *Cohen*v. People, 5 Park. Cr. 330; *McCarney*v. *People,*83 N. Y. 408.)

*Myron D. Short, District Attorney,*for respondent.

The organization and corporate existence of the true owner is not, in any case, a necessary allegation of an indictment for larceny, nor is it an essential element of the crime charged. (Penal Code, § 528; *People*v. *Stearns,*23 Wend. 634.)

Cullen, Ch. J.

The defendant was indicted for grand larceny, first degree, for having feloniously appropriated to his *16own use the sum of $738.67, the property of “ The People’s Mutual Life Insurance Association and League.” The indictment was framed under the second subdivision of section 528 of the Penal Code, which makes embezzlement by the agent, clerk of officer “ of any person, association or corporation” larceny. The only attack made on the indictment is that it fails to charge that the league was an association or corporation. For this alleged defect the demurrer was sustained by the County Court, but has been overruled by the Appellate Division.

Under the old rule which prevailed long ago in England, which required great particularity in the description of persons, it was necessary to allege the incorporation of a corporation. But that rule has not been generally accepted in this country, though there is much contrariety between the decisions of the various states. In Illinois, Texas and Alabama it seems the absence of an allegation that the owner mentioned in an indictment for larceny is a corporation (when it is such) is fatal to its validity. On the other hand, in New Jersey and Indiana the exact reverse is held. *(Fisher*v. State, 40 N. J. Law, 169; *Johnson*v. *State,*65 Ind. 204.) Such seems to be the law now in California *(People*v. *Henry,*77 Cal. 445), practically overruling an earlier decision *(People*v. *Schwartz,*32 Cal. 160). If there is no conclusive authority in this state on the question, at least the case of *Noakes*v. *People*(25 N. Y. 380) is very nearly such. That was a prosecution for forging an order for goods with intent to defraud the Meriden Cutlery Company. There was no allegation as to the nature of the company, whether it was a corporation, partnership or otherwise. Of this the court said : “ In stating this intent to defraud, it is sufficient to describe the party intended to be defrauded, with reasonable certainty,” and that the description in the indictment was sufficient. The only ■ground on which it can be contended that the case is not decisive of the question before us is that the court proceeded to say that even if there were no such company the indictment was sufficiently broad to reach the individual members *17under the description contained in the indictment “ of divers other persons to the jury unknown.” I cannot find that the authority of this case has ever been questioned. In *McCarney*v. *People*(83 N. Y. 408) the indictment charged theft of the property of a corporation, naming it, and alleging that it was incorporated under the laws of the State of New York. In fact, it was a national bank, incorporated under the laws of the United States. It was held that the variance was immaterial as the allegation was unnecessary, for the indictment might have stated the true corporate name of the owner and stopped there. I construe that as meaning it was unnecessary to charge that the owner was a corporation. It is true that the statement was obiter, for the point was not in the case; but this criticism is equally applicable to the decision in *Cohen*v. *People*(5 Parker’s Cr. Rep. 330), on which appellant relies, where it was said that it is necessary to allege in the indictment and prove on the trial that the corporation was an existing corporation. The indictment did charge ownership and the existence of the corporation and, hence, there was no question as to its sufficiency presented in the case. On the other hand, in *People*v. *McCloskey*(5 Parker’s Cr. Rep. 57) an indictment which charged burglary upon the property of the Gulf Brewery was held sufficient, though it does not seem that any objection was taken that the indictment did not charge that the Gulf Brewery was a corporation. If in this state of the authorities we are to consider the question an open one in this court, we are clear that the rule declared by the Appellate Division is correct. It is a logical sequence of the decision recently made by this court in *People*v. *Gilbert*(199 N. Y. 10). The appellant in that case, having been convicted of murder in the first degree, contended that the indictment was insufficient in not alleging that Yiola Hughes, whom it was charged he had killed, was a human being. It was held that the name and surname raised a presumption that the person killed was a human being. Conversely, as was said by the Supreme Court of Indiana in *Johnson*v. *State*(supra), “ when an ideality is referred *18to in a pleading by a name such as is usual in creating corporations, and which discloses no individuals, a corporate existence is implied without being specially averred.”

The order of the Appellate Division should be affirmed.

Gray, Haight, Vann, Willard Bartlett, Hiscock and Collin, JJ., concur.

Order affirmed.