dissenting.
The majority opinion states that it “would be a travesty of justice to permit the defendant to go free because he did not complete the existence of the limited partnership.” It is also a travesty of justice for a court in its zeal to make bad law simply because it is faced with a hard case. Apparently the law now is that a person can be charged and convicted of embezzling *66from a partnership which may or may not exist, without a jury determination that the partnership does exist. Such a result defies logic, common sense, and prior law, and I must respectfully dissent.
The defendant in this case was alleged to have embezzled from Pathfinder II, Ltd., a limited partnership. Essential parts of the information charged that (1) Siers was “the agent of Pathfinder II Ltd, a limited partnership”; (2) as agent of Pathfinder II, Ltd., a limited partnership, Siers embezzled money, “all of which money was and is the property of the said Pathfinder II Ltd, a limited partnership, his principal”; and (3) Siers embezzled said money “without the consent of the said Pathfinder II Ltd, a limited partnership, his principal, * * *.” Thus Pathfinder II, Ltd., and that entity alone, was the alleged victim of the embezzlement.
The record reflects that at the close of the State’s case the defendant moved to dismiss on the grounds the evidence adduced did not establish there was ever any embezzlement from a partnership called Pathfinder II, Ltd.; and that that entity did not exist, as the legal requirements for the creation of a limited partnership had not been fulfilled. Again, at the end of all evidence, the defendant renewed his previous motion of dismissal, stating, among other grounds for dismissal, that in order for there to be an embezzlement of the property owned by Pathfinder II, Ltd., as was charged in the information, that entity had to have been in existence; and that the evidence adduced showed that this had not occurred. In ruling upon this facet of defendant’s motion, the court stated: “And now that the Defendant has moved to dismiss on the basis of no showing that there was a partnership, the Court must, in response to that Motion, make a determination from the facts as a matter of law, rather than leaving it for the Jury, because the Court, once having determined it for this purpose, the Court sees no reason why it *67should then set aside its own finding and submit the question of whether or not there was a partnership formed as a question to the Jury.
“So, the Court * * * now determines that at the times in question as recited in the Information, Pathfinder II, Limited was a limited partnership and in existence, and that the Motion of the Defendant should be overruled and the fact question submitted to the Jury as to whether or not the Defendant, George J. Siers, as an agent of the Pathfinder II, Limited, a limited partnership, received funds and whether or not he did then convert or embezzle the funds in violation of the law of embezzlement under which the charge is brought in the Information.” In its subsequent instructions to the jury, the court frequently referred to “Pathfinder II, Ltd., a limited partnership,” but nowhere in those instructions submitted the question of the existence of that limited partnership to the jury for its determination. Defendant argues that this was clearly erroneous and prejudicial to his defense, and that it withdrew from consideration of the jury the determination of an essential element of the offense with which the defendant was charged.
The applicable embezzlement statute involved in this case is section 28-538, R. R. S. 1943, which, so far as material, provides: “If any clerk, agent, attorney at law, servant, factor or commission agent of any private person or any copartnership, except apprentices and persons within the age of eighteen years, or if any officer, attorney at law, agent, clerk, servant, factor or commission agent of any incorporated company or joint stock company, including all persons employed or commissioned by any employer, corporate or private, shall embezzle or convert to his own use, fraudulently take or make away with or secrete with intent to embezzle or fraudulently convert to his own use, without the assent of his or her employer or employers, or the owner or owners thereof, any money, goods, rights in action *68or other valuable security or effects whatever, belonging to any other persons, body politic or corporate, or which is partly the property of any other persons, body politic or corporate, and partly the property of such officer, attorney at law, agent, clerk, servant, factor or commission agent of any incorporated company * * * which shall have come into his or her possession or care in any manner whatsoever * * *, every person so offending shall be punished in the manner provided by law * * (Emphasis supplied.)
The requirements for forming a limited partnership are contained in the Nebraska Uniform Limited Partnership Act, sections 67-201 to 67-232, R. R. S. 1943. Section 67-202 provides that two or more persons desiring to form a limited partnership shall sign and swear to a certificate, containing 14 specified items of information, and file the certificate for record in the office of the county clerk of the county in which the principal place of business of the partnership shall be situated. It is then provided in subsection (2) of section 67-202, that: “A limited partnership is formed if there has been substantial compliance in good faith with the requirements of subsection (1) of this section.” (Emphasis supplied.) Under the foregoing provision, it would seem that “substantial compliance in good faith,” even though less than full compliance, would still result in the creation of a limited partnership, somewhat analogous to the status of a de facto corporation. In the instant case, it is clear from the evidence that there was far from complete compliance with the provisions of the foregoing section, but whether there was sufficient compliance to constitute “substantial compliance in good faith” would clearly be a question of fact for the determination of the jury.
The record contains the comments of the court in overruling defendant’s motion for a directed verdict indicating the court was following the general rule that the existence of a partnership depends upon the agree*69ment of the parties, and their intention is to be ascertained from all the evidence and circumstances, as set out in cases such as Baum v. McBride, 143 Neb. 629, 10 N. W. 2d 477 (1943), and Carlson v. Peterson, 130 Neb. 806, 266 N. W. 608 (1936); and also the rule set out in Lewis v. Gallemore, 173 Neb. 211, 113 N. W. 2d 54 (1962), that the existence and scope of a partnership may be evidenced by a written or oral agreement, or implied by the conduct of the parties and what was done by them. I have no quarrel with the foregoing rules but wish to point out that they did not involve limited partnerships, and further that even those cases hold that the existence of a partnership is a question of fact under the evidence.
Therefore the question of what will constitute a partnership is a matter of law for the court to determine, but whether a partnership exists under the facts presented in evidence is a fact question which is for the jury to decide. See, Lewis v. Gallemore, supra; Baum v. McBride, supra; Johnson v. Graf, 162 Neb. 396, 75 N. W. 2d 916 (1956); 59 Am. Jur. 2d, Partnership, § 81, p. 994; 68 C. J. S., Partnership, § 59, p. 484. Cases in other jurisdictions have specifically held that the question of whether a partnership existed in an embezzlement case is one of fact for the jury to determine. Adams v. State, 43 Ala. App. 281, 189 So. 2d 354 (1966).
Since the trial court in this case took from the jury the question of whether Pathfinder II, Ltd., in fact existed, the question in this case is whether proof of the existence of the limited partnership was essential to the State’s case. The majority contends without citation of authority, that a determination on the issue of the existence of Pathfinder II, Ltd., was not necessary, for: “If there was no limited partnership, there was a partnership agreement and the money was paid under its terms. Any variance in the name would be immaterial because defendant could not have been misled or confused as to the money he was accused of embezzling.” *70The majority continues: “Whether or not Pathfinder II, Ltd., existed as a legal entity was not an essential element of the crime and is immaterial on the record herein. * * * In this case, if there was a variance from the information, or a failure of proof, it was as to a matter basically immaterial under the facts herein.” Finally, the majority opinion states that: “The material issue was not the existence of Pathfinder II, Ltd., but whether or not the defendant, George J. Siers, as an agent of Pathfinder II, Ltd., received funds and whether or not he did then convert or embezzle the funds in violation of the law of embezzlement under the charge which is brought in the information.”
In so stating, the majority ignores fundamental and long-established principles of law, and oversimplifies the issues. It is elementary that the burden of proof at a trial for embezzlement rests, as in other criminal cases, upon the prosecution to establish every material allegation against the defendant beyond a reasonable doubt. What must be alleged must be proved. 26 Am. Jur. 2d, Embezzlement, § 48, p. 601. See, also, Yost v. State, 149 Neb. 584, 31 N. W. 2d 538 (1948). It is a universal rule that the defendant must be convicted, if at all, of the particular offense charged in the information, and that the allegations and proof must correspond. See, State v. Watson, 272 N. C. 526, 158 S. E. 2d 334 (1968); Scarboro v. State, 207 Ga. 449, 62 S. E. 2d 168 (1950); 42 C. J. S., Indictments and Informations, § 254, p. 1273.
It is well-established that where there is a conflict in the evidence it is error for the trial court to determine any question of fact involved in a criminal case. In Goldsberry v. State, 66 Neb. 312, 92 N. W. 906 (1902), we held that in the trial of an information charging a felony, the presiding judge is without lawful authority to determine an issue, or any of the questions of fact involved in the issue. That power belongs exclusively to the jury, regardless of the state of the evidence. The *71jury must be fully satisfied of the existence of every fact constituting an element of the crime charged, and it cannot be assumed that it is so satisfied because it ought to be. In Goldsberry, the court stated: “For the error committed by the court in taking away from the jury the question of fraudulent intent, and authorizing them to find defendants guilty without finding that the intent charged was proved by the evidence beyond a reasonable doubt, the sentence must be reversed, although there is much reason to suppose the result of the trial would have been the same if the case had been submitted under proper instructions ” (Emphasis supplied.)
The general rule in a majority of jurisdictions in the United States is that in embezzlement cases the information must allege, and the State must prove, who owned the property allegedly embezzled. Sisk v. State, 260 So. 2d 485 (Miss., 1972); Meyers v. State, 193 So. 2d 728 (Miss., 1967); Loker v. State, 2 Md. App. 1, 233 A. 2d 342 (1967), affirmed 250 Md. 677, 245 A. 2d 814, cert, den. 393 U. S. 1082, 89 S. Ct. 862, 21 L. Ed. 2d 774; Commonwealth v. Nichols, 206 Pa. Super. 352, 213 A. 2d 105 (1965); Scarboro v. State, supra; and, see, Annotation, 88 A. L. R. 485, and supplements thereto. It is also a general rule that where ownership of embezzled property is in an association, partnership, corporation, or the like, the information must allege and prove such organization to be an entity capable of owning property. State v. Roberts, 14 N. C. App. 648, 188 S. E. 2d 610 (1972); State v. Monk, 193 Ore. 450, 238 P. 2d 1110 (1951); 26 Am. Jur. 2d, Embezzlement, § 39, p. 592. This latter rule has been modified in some states by statute. See State v. Fulper, 16 Ariz. App. 357, 493 P. 2d 524 (1972). Nebraska has no similar statute. Finally, in an information for embezzlement the agency or fiduciary relationship of the accused should be clearly stated. 26 Am. Jur. 2d, Embezzlement, § 40, p. 593.
The information in this case clearly charged the de*72fendant with embezzling from Pathfinder II, Ltd., a limited partnership. Obviously the existence of that entity was material to the State’s case, since, under the rules stated above, it was required to prove who owned the property and what the fiduciary relationship was between the defendant and the victim of the embezzlement. If Pathfinder II, Ltd., did not exist, how could it have owned the property allegedly embezzled, and how could Siers have been its agent? The majority itself states that the material issue herein is “whether or not the defendant, George J. Siers, as an agent of Pathfinder II, Ltd., received funds and whether or not he did then convert or embezzle the funds in violation of the law of embezzlement under the charge which is brought in the information.” (Emphasis supplied.) If Pathfinder II, Ltd., did not exist, Siers could not have been its agent, and could not have converted or embezzled its funds.
In reaching its conclusion, the majority confuses the issue by discussing the question of whether there was a variance between the allegations and the findings of fact, and refers to cases which deal with questions of variance. Variance between pleadings and proof is not the main issue here; the defendant was charged with embezzling from Pathfinder II, Ltd., and was found guilty of embezzling from that entity. The issue presented in this appeal is whether the trial court erred in taking from the jury a question of fact which was material to the State’s case, that question being whether the alleged victim in fact existed. In none of the cases cited by the majority did the trial court take from the jury the question of whether the victim of the crime existed. In each one there was a question as to the proper name of the victim, as alleged in the information, but not one of whether the entity from which property was embezzled or converted was an ongoing entity, which existed in fact and was conducting business. In none of those cases did the trial court hold as *73a matter of law that the victim of the alleged crime existed.
Cases in Nebraska have long established that proof of the existence of a corporation is essential when the alleged victim of an embezzlement or larceny is a corporation. In Braithwaite v. State, 28 Neb. 832, 45 N. W. 247 (1890), we held in a larceny case that it was necessary to prove that the victim was at least a de facto corporation. This same rule has been followed in Sharp v. State, 61 Neb. 187, 85 N. W. 38 (1901); Higbee v. State, 74 Neb. 331, 104 N. W. 748 (1905); Bloom v. State, 95 Neb. 710, 146 N. W. 965 (1914); Peterson v. State, 115 Neb. 302, 212 N. W. 610 (1927); and Larson v. State, 107 Neb. 800, 186 N. W. 981 (1922). All these cases indicate that there must be some evidence of the existence of the corporate victim of the alleged crime presented to the jury in order to sustain a conviction, even if the evidence is only sufficient to show de facto existence.
The cases cited by the majority from only two jurisdictions, Arizona and Colorado, do not deal with the failure of the trial court to submit all material issues of fact to the jury, and therefore, they do not convincingly dispose of the issue raised in this appeal. State v. Scofield, 7 Ariz. App. 307, 438 P. 2d 776 (1968), and State v. Colson, 17 Ariz. App. 598, 499 P. 2d 726 (1972), were cases decided under a specific Arizona statute. In Scofield, the information alleged that the defendant embezzled property from a corporation, and the proof in the case was conflicting as to whether this entity was a separate corporation or a trade name under which an individual did business. There was no issue in the case as to whether the corporation was in existence in terms of doing business and in terms of possessing the property embezzled, and the trial court made no ruling as a matter of law that the corporation was a separate corporation. The court held that the variance between the proof and the information, if any, *74was immaterial. Colson involved precisely the same kind of question, and the Scofield decision was followed. Both cases relied on A. R. S., § 13-681 et seq., which provides that: “No variance between the allegations of an indictment, information or bill of particulars, which state the particulars of the offense charged, * * * and the evidence offered in support thereof shall be ground for the acquittal of the defendant.” Nebraska’s, variance statute, section 29-1502, R. R. S. 1943, is much narrower, and deals with variance in names.
In Straub v. People, 145 Colo. 275, 358 P. 2d 615 (1961), the defendant contended that the State had not proved the corporate existence of the alleged victim of a larceny, “The Continental Oil Company.” The State had called three witnesses who testifed that they were employees of said company, and that the stolen property belonged to that company. The substance of the court’s holding was that this evidence was sufficient to establish the identity of the alleged owner of the stolen property. The trial court had not held that the corporation existed as a matter of law, and had not taken that issue from the jury. More recent Colorado cases hold that in a larceny case it is necessary to at least show that the named victim had possession, control, and custody of the chattel which was the alleged object of the larceny. Diebold v. People, 175 Colo. 96, 485 P. 2d 900 (1971); Kelley v. People, 166 Colo. 322, 443 P. 2d 734 (1968). In the case at hand, if Pathfinder II, Ltd., did not exist in any respect, de facto or otherwise, it could not have had possession, control, and custody of the money allegedly embezzled, and the question of the existence of the entity was a fact question for the jury.
The majority places great weight on the fact that the defendant predicated his defense on the existence of Pathfinder II, Ltd. This fact does not relieve the State of its burden to prove all the material facts relevant to the crime charged, and does not allow the trial court to take factual issues from thé jury. The *75jury may well have found that Pathfinder II, Ltd., did exist, particularly in light of the defendant’s own testimony, but this possibility does not warrant upholding the trial court’s error of failing to submit a material factual question to the jury. See Goldsberry v. State, supra.
The judgment should be reversed and the cause remanded for a new trial.
McCown, J., joins in this dissent. Clinton, J., respondente.This is not a “hard case.” The simple issue is whether there was a material variance between the allegations of the information and the proof which prejudiced the defendant in his defense of the charge. State v. Nelson, 182 Neb. 31, 152 N. W. 2d 10. The dissent treats the issue as if proof of technical compliance with the provisions of the Uniform Limited Partnership Act by the persons who invested or intended to invest their money was an element of the crime of embezzlement. The technicalities involved in the formation of the entity in which ownership of embezzled or stolen property rests is not and never has been an element of the crime.
It is fundamental that an indictment or information must allege the ownership of the property embezzled or stolen. The purpose is to identify the offense so that the accused will know with certainty whose property he is alleged to have embezzled or stolen so that he may know what he must defend, and also so that the crime is sufficiently identified that if there is an attempt to try him again he may prove former jeopardy. 1 Underhill, Criminal Evidence (5th Ed.), § 85, pp. 139, 140; State v. Davis, 61 N. J. Super. 536, 161 A. 2d 552; People v. Bristow, 8 Ill. App. 3d 805, 291 N. E. 2d 189.
The record in this case undisputedly establishes that the defendant knew and knows what funds and whose funds he was charged with embezzling. His defense was that he had authority from the owners to invest the funds as he did. It is also' clear that the jury was *76properly instructed as to what it must find as to the identity and ownership of the funds the defendant was alleged to have appropriated before the jury could find the defendant guilty. It is crystal clear that the defendant was not hampered in any way 'in meeting the charges.
The majority opinion does not announce new law as the dissent implies, although some courts have taken the same hyper-technical view as the dissent. Numerous decisions in addition to those cited in the majority opinion hold that variances such as may here exist are irhmaterial. State v. Nelson, supra (ownership of stolen cattle alleged to be in ranch foreman in whose possession the cattle were, rather than in the ranch owner who, in fact, owned the cattle); Commonwealth v. O’Brien, 12 Allen 183 (Mass., 1866) (individual partner and partnership); People v. Leonard, 106 Cal. 302, 39 P. 617 (corporation or de facto corporation); State v. Harrison, 347 Mo. 1230, 152 S. W. 2d 161 (Missouri Federal Relief Commission and Federal Relief Commission); Helms v. State, 40 Ala. App. 622, 121 S. 2d 104 (some difference in the name of the individual from whose custody property was taken); Hunt v. State, 229 Ga. 869, 195 S. E. 2d 31 (Valley Produce, Co., Inc., and Val Produce, Co., Inc.); Garza v. State, 171 Tex. Cr. App. 267, 347 S. W. 2d 265 (proprietor of a beer garden and owner of juke box located in the garden); United States v. Spatuzza, 331 F. 2d 214 (New York Central “System” and New York Central Transport Company); Gaynor v. State, 247 Ind. 470, 217 N. E. 2d 156 (allegation of joint ownership sustained by proof of ownership in one of the individuals); State v. Zammar (Mo. App.), 286 S. W. 2d 54 (Katz Drug Store and Katz Drug Company, Inc.).
Can anyone doubt that had the defendant been acquitted he could successfully plead double jeopardy should he again be charged with embezzling property of the individuals who were or intended to become Path*77finder II, Ltd.? Should the proposition contended for by the dissent become law, the effect ultimately would be not merely a new trial, but the acquittal of a defendant who, if the jury’s findings of fact are to be given any credence, is guilty.
Brodkey, J., responding to respondente.As pointed out in the dissenting opinion, the principal issue in this case is not variance, but rather the failure to submit to the jury for its determination an essential element of the charge against the defendant. If this constitutes being “hyper-technical,” then so is the Constitution of the United States.