Kruger v. State
| Decision Date | 22 December 1893 |
| Docket Number | 16,898 |
| Citation | 35 N.E. 1019,135 Ind. 573 |
| Parties | Kruger v. The State |
| Court | Indiana Supreme Court |
From the Marion Criminal Court.
The judgment is affirmed.
W. F A. Bernhamer and W. N. Pickerill, for appellant.
A. G Smith, Attorney-General, and J. W. Holtzman, Prosecuting Attorney, for State.
The appellant was convicted of the crime of arson on the following indictment, omitting the formal part thereof "That Fred Kruger, on the 2d day of April, A. D. 1892, at and in the county of Marion, and State aforesaid, did then and there unlawfully, feloniously, wilfully, and maliciously set fire to, and burn, a certain building, to wit: A certain shop there situate, o the value of nine hundred dollars, then and there being the property of another person, to wit, Bernd Brothers, and did then and there and thereby feloniously, unlawfully, and maliciously burn and destroy the said property to the damage thereof in the sum of three hundred dollars, contrary to the form of the statute in such case made and provided, etc."
The only respect in which it is contended that the trial court erred, is in overruling of appellant's motion for a new trial. The appellant has abandoned the other errors assigned by neglect to discuss them in his brief. One of the grounds of the motion for a new trial is that the finding of the court is contrary to law and the evidence, and is not supported by sufficient evidence.
The only ground urged in argument is, that the finding is not supported by sufficient evidence. It is not denied by the appellant that the evidence establishes that he burnt the building described in the indictment, but it is contended that the ownership of the property is not proven, as laid in the indictment. It is charged to be the property of "Bernd Brothers." The proof is that it belonged to Peter and Daniel Bernd, who were partners and brothers, their firm name being "Bernd Brothers," and that they carried on their partnership business in said building. The contention is that there is a fatal variance in the proof from the charge. But it is contended by the State that, as the evidence was admitted without any objection by appellant, he can not now raise any question of mere variance on a motion for a new trial.
In Taylor v. State, 130 Ind. 66, 29 N.E. 415 (69), this court said:
To the same effect is Graves v. State, 121 Ind 357, 23 N.E. 155. As no objection on account of the alleged variance was made until made in this court, it comes too late to avail the appellant anything. But we are of opinion that the variance was immaterial, and therefore not fatal if it had been made at the proper time. The main contention is that the charge indicates that the building burned was partnership property, and therefore personal property, but that the proof shows that it was real estate. It is true that real estate, when it is owned by a partnership, is, by the law, treated as personal property for the purposes of the partnership, and yet for all other purposes it still remains real estate intrinsically, as if it had never belonged to the partnership. The fact that a firm of partners purchase real estate for the use and benefit of their partnership, and take the deed in the individual names of the partners instead of the firm name, does not necessarily destroy its character as partnership property. Besides, it has been held by this court, that in an indictment charging the burning of "a mill house, the personal property of another" named, the statement that it is personal property "is a conclusion of law rather than a...
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