Jefferson GENERAL TERM, July, 1849. Pratt, Gridley, and Allen, Justices.

THE PEOPLE vs. HORR.

Under an indictment for maliciously cutting and girdling certain fruit trees, described in the indictment as the property of one B., it is sufficient proof of the ownership of the property to show that the premises on which the trees stood were in the possession and occupation of B. at the time of committing the offence.

And evidence that B. was not the sole owner of the premises in question, but was only one of several joint owners who held the legal title in common, will not amount to a variance between the indictment and the proof.

MOTION for a new trial. This was an indictment for feloniously and maliciously girdling and damaging and destroying fruit trees, and was tried at the Jefferson county oyer and terminer in February, 1849, before Justice MASON. The indictment charged the offense to have been committed by the prisoner on VOL. VII.

2

The People v. Horr.

the 5th day of December, 1848, at Lorraine, in the county of Jefferson, by the girdling and otherwise injuring thirteen apple trees, the property of one Walter R. Brown, then and there growing, &c. After considerable testimony had been given by the district attorney in support of the indictment, and after it had been proved that the complainant Walter R. Brown was at the time the injury was done to the trees, and for sometime before had been, in possession of the premises on which the trees were growing; as it appeared that Brown was not the sole owner of the property, it was insisted by the counsel for the prisoner that in order to sustain the indictment it must be shown that Brown was the owner of the property injured, at the time the trespass was committed. It was also insisted by him that Brown had only an undivided interest in said property at that time. It was admitted by the district attorney that Brown was the owner of an undivided interest in said property, only in common with several other persons, and was not the sole owner thereof. The counsel for the prisoner thereupon insisted that the indictment could not be sustained, for the reason that there was a variance between the indictment and the evidence. That the indictment did not alledge that Brown and the other persons were the owners of said property; and that it was not suf ficient to alledge the ownership of the property to be in Brown only; and he requested the court so to decide. The court overruled the objection, and decided that it was sufficient to alledge in the indictment that Brown was the owner of the property; although from the evidence before the court it appeared that Brown was the owner of only an undivided interest therein; without saying any thing about the other owners; and that there was no variance between the indictment and the evidence. To which opinion and decision of the court the counsel for the prisoner excepted, and upon a bill of exceptions moved for a new trial.

J. Moore, Jun. (district attorney,) for the people.

T. C. Chittenden, for the prisoner.