Summary
holding that ownership of property was in individual partners and not in the partnership
Summary of this case from Blalock v. U.S.Opinion
No. 30232.
November 7, 1932.
1. BURGLARY. There was no variance where indictment charged that storehouse burglarized was property of two individuals and testimony showed it belonged to partnership composed of such individuals.
There was no variance because partnership is not regarded as strictly a legal entity distinct from the individuals composing it, and having an independent existence, nor as a person, either natural or artificial, but the ownership of partnership property is in individuals composing partnership.
2. BURGLARY.
Indictment charging burglary must allege ownership of building burglarized, and such ownership must be proved as alleged.
APPEAL from circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
Geo. T. and Chas. S. Mitchell, of Tupelo, for appellant.
The sole question that we desire to present to this court in this case is whether or not there is a variance between an indictment and the proof when the indictment charges that the storehouse entered was the storehouse of L.P. McCarty and Roy McCarty and the intent charged was to steal property situated therein belonging to L.P. McCarty and Roy McCarty, and the proof is to the effect that the storehouse broken into was the storehouse of L.P. McCarty Son and the property stolen was the property of L.P. McCarty and Son, which was a partnership composed of L.P. McCarty and Roy McCarty.
It is the contention of appellant that when a storehouse in the possession of a partnership firm is broken into and burglarized, the indictment must specify the fact that the storehouse broken into was in the possession of the partnership firm and must specify the name of the partnership firm and also the names of the respective partners, just the same as if a storehouse in the possession of a corporation must be specified in the indictment as the storehouse of that particular corporation, specifying the name of same.
There is a fatal variance between the indictment and the proof in this case.
It is certainly settled that it is necessary to allege the ownership of the building burglarized and to prove it as laid, and when a corporation is alleged to be the owner of a building, there must be proof of the existence of the corporation.
James v. State, 77 Miss. 370; 3 Enc. Pl. Prac. 758; 2 Bishop New Criminal Procedure 137; Wright v. State, 94 So. 716.
If it is necessary to allege the ownership and prove the allegation as alleged when a corporation is involved, is it not reasonable to require the same allegation specifically when a partnership is involved. We can see no difference.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
This court has recently held that possession, even though wrongful, is good as against a burglar.
Clinton v. State, 142 So. 17.
The proof in this case shows that the building burglarized was in possession of L.P. McCarty and Roy McCarty and that they were doing a partnership business therein.
Burglary is an offense against the possession.
47 C.J. 747, 748.
There is a very marked difference between a partnership and a corporation in that the law recognizes a corporation as a separate and distinct legal entity, whereas our law does not recognize a partnership as such distinct legal entity. Possession of property by a corporation is in the corporation itself, whereas possession of partnership property is in the partners, as individuals, and not as a partnership.
Conceding, for the sake of argument, that there is a variance, as contended for by appellant, is that variance material and does it affect the substantive rights of appellant? It is not every variance that will work a reversal of a case.
A variance necessitating a reversal of a case on account thereof, must be material and affect the substantive right of defendant.
Roney v. State, 120 So. 425.
The indictment in this case against appellant for burglary charged that the storehouse which was burglarized was the property and was in the possession of L.P. McCarty and Roy McCarty. The testimony showed that the property and possession was that of L.P. McCarty Son, a partnership composed of L.P. McCarty and Roy McCarty. Upon the close of the state's evidence, appellant moved to exclude on the ground that, upon the issue of ownership, there was a variance between the indictment and the proof. The motion was overruled, and the appellant thereupon requested a peremptory instruction, which was refused. Appellant was convicted and appeals, assigning as the sole ground of error the asserted variance above mentioned.
Appellant states in his brief that he has been unable to find an authority passing directly upon the exact question here presented, and, upon an independent search, we have not found a case squarely in point. We think, however, that the controlling principle is to be seen in Wright v. State, 130 Miss. 603, 609, 94 So. 716, 717.
It is settled, of course, that it is necessary to allege the ownership of the building burglarized and to prove it as laid, and that where, for instance, a corporation is alleged to be the owner, there must be proof of the existence of the corporation. James v. State, 77 Miss. 370, 372, 26 So. 929, 78 Am. St. Rep. 527. The rule in respect to ownership by a corporation is as stated, because a corporation is a legal entity, and the legal ownership of its property is not in the stockholders. But in our state a partnership is not regarded as strictly a legal entity distinct from the individuals composing it, and having an independent existence, nor as a person, either natural or artificial. 47 C.J. p. 747; Wright v. State, supra. In the Wright Case, the indictment charged that the storehouse burglarized was the property of Hamilton Rodman, a partnership, without naming the partners. This court there said: "The law does not recognize a partnership as a legal entity, and where the ownership is laid in a partnership the partners should be averred, and the proof should correspond with the allegation." It is the logical consequence of the holding in that case that the ownership is in the individual partners and not in the partnership; from which it further follows that, when the ownership is laid in the individuals who in fact compose the partnership and the proof is made in accordance therewith, the essentials of the case have been met both as to allegation and proof, so far as the question of ownership is concerned.
Affirmed.