Bingle v. State

• Decision Date: 03 November 1903
• Parties: BINGLE v. STATE.
• Court: Indiana Supreme Court

161 Ind. 369

68 N.E. 645

BINGLE

v.STATE.

Supreme Court of Indiana.

Nov. 3, 1903.

Appeal from Circuit Court, Spencer County; T. J. Reinhard, Special Judge.

James Bingle was convicted of larceny, and appeals. Affirmed.Bennett & Crenshaw, for appellant. Union W. Youngblood, Pros. Atty., C. W. Miller, Atty. Gen., A. C. Hadley, L. G. Rothschild, and W. C. Geake, for the State.

MONKS, C. J.

Appellant was charged by indictment with the crime of petit larceny. Trial, verdict of guilty, and finding that appellant was 44 years of age. The errors assigned challenge the sufficiency of the indictment, and the action of the court in overruling appellant's motion for a new trial.

The indictment charged that the property stolen was the “personal goods and chattels of Robert T. Lang, Andrew J. Bauman, Daniel Ehret, Uriah McCoy, and Jacob Scammahorn, as trustees of the Ebenezer United Brethren Church.” Appellant contends that the property alleged to have been stolen was the property of the United Brethren Church, and not the property of the trustees, and that it should have been alleged in the indictment that the property stolen belonged to the church, stating its corporate name. It is insisted by appellant that for this reason the indictment was bad, and the court erred in overruling his motion to quash. It is not alleged in the indictment that the Ebenezer United Brethren Church was ever incorporated, and we cannot presume that it was, as against an allegation that the article stolen was the property of the persons named “as trustees” of the church. It has been held in this state that a church incorporated under our statutes may sue and be sued in the names of the trustees. Gaff v. Greer, 88 Ind. 122, 124, 125, 45 Am. Rep. 449, and cases cited. It is clear, however, that a church congregation which has never been incorporated may act by trustees chosen from time to time by the members of such congregation, and the title to and possession of the property, real and personal, of such congregation, may be in the trustees. In such cases actions concerning said property may be in the individual names of the trustees. Dwenger v. Geary, 113 Ind. 106, 121, 14 N. E. 903;Beatty v. Kurtz, 2 Pet. 566, 7 L. Ed. 521. It is evident that the objection urged is not tenable.

The questions presented by the motion for a new trial depend for their determination upon the evidence, which the Attorney General insists is not in the record, because what purports to be an original bill of exceptions is not embraced in the transcript, but has been attached to the transcript, following the certificate of the clerk. The certificate of the clerk states that “the above and foregoing transcript contains full, true, and complete copies of all the papers and entries in the cause, except affidavits and counter affidavits filed in support of the same, as required by the foregoing præcipe, as the same appears of record in my office.” What purports to...