concurring.
I concur in the result reached by the majority as to Doyle's theft conviction for failure to make required disposition of property under IND.CODE 85-17-5-4, but believe my reasons for so doing merit discussion.
An indietment must be specific enough to apprise the defendant of the crime with which he is charged. Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1104; Carter v. State, (1972) 155 Ind.App. 10, 18, 291 N.E.2d 109, 113. The State must prove beyond a reasonable doubt every material element of the crime with which the defendant is charged. See, Dillon v. State, (1971) 257 Ind. 412, 416, 275 N.E.2d 312, 314. A defendant is denied due process if the proof at trial conviets him of a crime other than the one alleged in the indictment. See, Roddy, supra, 394 N.E.2d at 1104.
The State here indicted Doyle individually for theft under IND.CODE 85-17-5-4. The gravamen of the crime of theft by failing to make required disposition of *541property subject to a known legal obligation is the defendant dealt with the property as his own. See, Wells v. State, (1980) Ind.App., 401 N.E.2d 779, 780-781; State v. Gates, (1979) Ind.App., 394 N.E.2d 247, 248; Miller v. State, (1972) 153 Ind.App. 54, 60, 285 N.E.2d 843, 846-847. Even when the evidence in this case is viewed, as it must be, in the light most favorable to the State, there is no direct or cireumstan-tial evidence nor reasonable inference arising from the evidence Doyle personally received ISHCO funds or put such funds to his personal use. Thus, as the State admitted on oral argument, there is a total failure of proof on this material element of the crime which warrants reversal unless more appears.
Under the evidence, Doyle was the sole stockholder and president of ISHCO, and the sole stockholder and president of the Doyle professional corporation. In all of these transactions, he acted for and on behalf of each corporation as an officer thereof. The money paid ISHCO was then paid by it into the Doyle professional corporation treasury, not to Doyle personally. There the evidence stops. There is no direct evidence nor reasonable inference arising from the evidence Doyle personally received or used any of these funds.
The majority treats ISHCO and Doyle's professional corporation as mere "alter egos" of appellant Doyle, thus, the piercing of both corporate veils to find Doyle guilty of this brand of theft is warranted. I disagree.
A corporation is a distinct and separate legal entity, legislatively created, separate and distinct from its stockholders. Madding v. Indiana Department of State Revenue, Gross Income Tax Division, (1971) 149 Ind.App. 74, 84, 270 N.E.2d 771, 776; Hart Schaffner and Marx v. Campbell, (1942) 110 Ind. App. 312, 320, 38 N.E.2d 895, 899; Department of Treasury of Indiana v. Crowder, (1938) 214 Ind. 252, 254-255, 15 N.E.2d 89, 91; 6 I.L.E. Corporations § 1, p. 431. A corporation maintains its separate legal existence even though one shareholder owns all its stock. See, Amst-ed Industries, Inc. v. Pollak Industries, Inc., (1978) 65 Ill.App.3d 545, 549, 22 Ill.Dec. 73, 77, 382 N.E.2d 393, 397; see also, Benson v. Warble, (1970) 146 Ind.App. 307, 310, 255 N.E.2d 230, 232 (separate corporate entity exists even though one person owns majority of stock). The legal fiction of a separate corporate entity will be disregarded only where the corporation becomes the "alter ego" of the individual. As such, the interests of the individual and the corporation are united to the extent the distinction between the two no longer exists. See, Merchants National Bank and Trust Co. of Indianapolis v. H.L.C,. Enterprises, Inc., (1982) Ind.App., 441 N.E.2d 509, 514. "Alter ego" is an equitable doctrine. Towers v. Titus, (Bankr.N.D.Cal.1979) 5 B.R. 786; Stap v. Chicago Aces Tennis Team, Inc., (1978) 63 Ill.App.3d 23, 28, 20 Ill.Dec. 230, 234, 379 N.E.2d 1298, 1302.
This doctrine may be applied in civil cases between private litigants, but equity will neither aid nor obstruct criminal courts in the exercise of their jurisdiction. As Corpus Juris Secundum notes
For the mere vindication of the criminal law and the enforcement of the public policy of the state, whether founded on moral or other consideration, the legal remedy by indictment and prosecution is fully adequate and particularly appropriate.
30 C.J.S. Equity § 53, p. 885. See also, 12 I.L.E. Equity § 13, p. 283. Applying the "alter ego" doctrine in this case in favor of the State without more, would be a denial of Doyle's right to due process. Each of the five Theft by Failure to Make Required Disposition counts alleged Doyle himself "obtained control over the property of ISH-CO, Inc. ..." As noted above, there is a failure of proof on this element of all the crimes charged unless the "alter ego" doe-trine is applied. The indictment or information must furnish the accused with such a description of the crime charged as will enable him to make his defense and avail of his conviction or acquittal for protection against further prosecution for the same offense. Trotter v. State, (1981) Ind., 429 *542N.E.2d 637; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686, appeal dismissed 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. The accused has a right to require that the crime alleged against him be charged with sufficient certainty to enable him to anticipate proof which would be adduced against him to enable him to meet it. Harwei, Inc. v. State, (1984) Ind.App., 459 N.E.2d 52.
Under the allegations in this cause Doyle could reasonably anticipate proof he himself, not the corporations, acted feloniously. He could not reasonably anticipate proof the corporations so acted and by discretionary application of the "alter ego" doctrine, he would be held personally accountable.
Nothing can be charged by implication. Carter v. State, (1973) 158 Ind.App. 27, 301 N.E.2d 524. A person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. McGairk v. State, (1980) Ind.App., 399 N.E.2d 408; U.S. Constitution, Amend. 14. Without more, Doyle would be entitled to reversal for either (a) a failure of proof, or (b) because he was denied procedural due process.1 Nevertheless, Doyle was individually liable based upon general principles regarding criminal liability of corporate officers.
A corporate officer is individually liable for criminal acts of the corporation performed in his official capacity if he participates in their commission or if the acts are committed under his authorization or control. See, United States v. Sherpix, Inc., (D.C.Circuit 1975) 512 F.2d 1361, 1372; United States v. Hare, (7th Cir.1946) 153 F.2d 816, 818; United States v. Griffin, (S.D.Ind.1975) 401 F.Supp. 1222, 1224; Bourgeois v. Common Wealth, (1976) 217 Va. 268, 274, 227 S.E.2d 714, 718; 19 C.J.S. Corporations § 931, p. 364. The indict ment's allegations gave Doyle sufficient notice because an accessory or aider or abettor may be charged in the same manner as a principal Coleman v. State, (1976) 265 Ind. 357, 354 N.E.2d 232; Tolbert v. State, (1982) Ind.App., 442 N.E.2d 718.
Given Doyle's control over the transactions between ISHCO and Doyle's professional corporation, the evidence is clearly sufficient to sustain his conviction as a participating corporate officer in his professional corporation's illegal activities. Thus, there was no fatal variance between pleading and proof. I concur in result on this issue.
In all other things, I concur with the majority.
. Research reveals one criminal case wherein the "alter ego" doctrine was applied. I disagree with the result reached therein. See, State v. Louchheim, (1979) 296 N.C. 314, 329, 250 S.E.2d 630, 639-640, appeal denied 295 N.C. 470, 257 S.E.2d 435, cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47, but note there the "alter ego" approach was specifically alleged in the indictment.