187 Ind. 709 | Ind. | 1918
— Appellant, in the court below, by an affidavit was charged with the crime of petit larceny as defined by §2270 Burns 1914, Acts 1907 p. 86. Plea of not guilty, trial by jury, and verdict of guilty. The
The affidavit charges that the property — five chickens —of the value of four dollars, feloniously taken and carried away, was the personal property, goods, and chattels of Amanda Engle. Relative to the question for decision, the evidence shows in substance that Amanda Engle at the time of making the affidavit, and for about fourteen years immediately prior thereto, was the wife of James A. Engle. At the time of the alleged theft they lived together as husband and wife on a two-acre tract of land, owned by the husband, in Curry township, Sullivan county. The business of the husband was working in a mine, away from home, except as he assisted the other members of his family in cultivating a garden. His wife remained at home and, along with her household work, she had the control and charge of the poultry almost exclusively,- treating it as’ her own and it was so considered by the husband. The wife testified that .the chickens belonged to her, and the husband testified that they belonged to his wife. The poultry thus raised by the wife, whether sold or not, went to the general support of the family.
Under this state of the evidence it is claimed that the chickens in question were acquired and kept under such circumstances that by force of the common law of this state the title and ownership of the stolen property was in James A. Engle; hence, a fatal variance between the charge and the proof. In this connection our attention
Note. — Reported in 121 N. E. 274. Larceny: right of possession by person from whom property is stolen as affecting crime, 13 Ann. Cas. 495; necessity of proof of ownership, 88 Am. St. 595. See under (1, 3) 25 Cyc 125.