Omitting the formal portions thereof, the indictment charges, that defendant "did unlawfully and fraudulently take one head of cattle, the same being the corporeal personal property of a person to the grand jurors unknown, from the possession of James Robertson, who was holding the same for the said person to the grand jurors unknown, without the consent of the said James Robertson, and with the fraudulent intent to deprive the said person to the grand jurors unknown of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Edward Swink. * * * Against the peace and dignity of the State."
Motion in arrest of judgment was made, upon the ground that the indictment failed to negative the consent of the unknown owner. The motion was overruled. Where the property is owned by one party, and the possession is held by another, the indictment may so allege. But when the pleader so avers, the indictment must negative the consent of both. While it is sufficient to allege ownership and possession in the party having the actual care, control, and management of the property, in order to constitute the indictment a valid one, yet if the pleader elect to allege ownership in the real owner, and possession in the party so holding the property, the indictment must negative the consent of both.
The motion in arrest of judgment was well taken.
Again, the indictment may allege ownership in an unknown owner, but on the trial, in order to sustain the indictment, the State must prove the grand jury could not and did not, by the use of reasonable diligence, ascertain the name of the owner, otherwise there will be a fatal variance between the allegation and proof. If the owner can not thus be ascertained, it is sufficient to aver the ownership in some person to the grand jurors unknown.
In this case every witness testified, and the record evidence proved, that R.M. McGaughey had estrayed the animal in question. This constituted him in law, for the purposes of this prosecution, the owner of the *Page 533 cow. The very evidence upon which the jury predicated the finding of their verdict must of necessity have been the basis of the action of the grand jury in finding this indictment, for the names of the witnesses who testified on the trial, as was that of R.M. McGaughey, who was also present, but did not testify on the trial, are all endorsed as witnesses upon the back of the indictment. If ownership was not proved before the grand jury, the slightest diligence on the part of that body would have discovered who was the owner.
The record shows a fatal variance between the averments of the indictment and the evidence in this respect. As the question will not arise upon another trial, it is not necessary to discuss the supposed variance between the names Robertson contained in the indictment, and Robison as proved in the trial.
Because the indictment is fatally defective, the judgment is reversed and the prosecution is dismissed.
Reversed and dismissed.
Judges all present and concurring.