The opinion of the court was delivered by
TAFT, J.The property stolen belonged to Mrs. Gilson y living in New Hampshire, to whom it had been assigned as part of an estate at Malone, N. Y. Lincoln E. Spaulding, who had held the property as administrator, was taking it to Mrs. Gilson, he going as a passenger, and it as’ baggage, on a train of the Central Yermont Railroad Company. It was in the company’s, possession, at its station in St. Albans, when stolen. In the indictment as presented, the ownership of the property alleged to have been stolen was laid in said Spaulding. It was amended by striking .out his name and inserting in lieu of it, that of the railroad company.
1. The respondent insists that the ownership of the property should have been alleged in Mrs. Gilson, arguing that in this way only could a conviction under the indictment be a bar to. a subsequent prosecution alleging the ownership to be in her. We are not inclined to adopt this view of the law, and shall not, until the court so decide, but shall assume otherwise. Under our statute, R. L. s. 1707, it is provided that in the prosecution of an offence committed in stealing personal estate, it shall be sufficient and not a vaidance, if it is proved on trial that at the time the offence was committed the actual possession of the property was-in the person alleged in the indictment to be the owner thereof. The Central Yermont Railroad Company having the actual possession of the property, it was no variance when it appeared, that Mrs. Gilson owned the property, provided the amendment was properly made.
2. Did the court err in permitting the amendment ? The statute, Acts 1882, No. 86, provides that when a variance appears between the averments, and evidence offered in proof, in *407the name of any person alleged to be the owner of any property which forms the subject of the offense charged, etc., the court if it considers such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence upon such merits, may order the indictment amended according to the proof. It is argued that no amendment was proper, by which the person would be changed, but only such as was descriptive of the person alleged to be the owner. The gist of the offence of larceny is the felonious taking of property ; as constituting the offence, it is immaterial who the owner may be; he may be unknown; the property may be taken from a repository containing that of many persons; errors in the names of persons, and in the persons, of the owners, may frequently occur, and to obviate such difficulties no doubt occasioned the statute,, and we see no objection under it to an amendment changing the person alleged to be the owner. The rights of the respondent are properly guarded by that part of the act, permitting it only in case the court consider the variance not material of the case and the respondent not prejudiced in his defence upon such merits. The respondent does not claim that the court improperly exercised its discretion, nor that he was in fact injured upon trial by such amendment, but that as matter of law the court had no power to make it. The action of the court was fully warranted by the statute.
Exceptions overruled, judgment of guilty upon the verdict and sentence thereon and execution thereof ordered.