
    Patrick Mulrooney v. The State of Ohio.
    Where in an indictment for burglary and larceny, the ownership of the-building entered and of the goods and chattels stolen is laid in two or more persons, and on the trial it appears from the evidence offered by the state that the building and goods and chattels are the property of one of the persons named only, such variance, under the provisions of section 91 of the code of criminal procedure (66 Ohio L. 301), will not be deemed ground for an acquittal of the defendant, unless it appear that such variance was material to the merits of the case or prejudicial’ to the defendant.
    Error to the Court of Common Pleas of Ross County.
    At the November term, 1875, of the court above named,, the plaintiff in error was indicted and convicted of burglary and larceny, and sentenced to imprisonment in the penitentiary.
    The indictment, in apt words, charges the crimes to have-been committed by the plaintiff in error, by breaking and entering the storehouse of Edward Kaufman and Samuel Straus, Jr., in the night season, and taking and carrying away certain goods and chattels of Kaufman and Straus,. Jr., therein contained.
    At the close of the evidence, counsel for the plaintiff in error requested the court to instruct the jury:
    “ 1. If the jury find that under an agreement between Kaufman and Straus, Straus was to be a sharer with Kaufman in the profits of the business to be carried on in the-storehouse described in the indictment, for the purpose of paying Straus for his service as salesman in the business, then that would not constitute Straus such a partner with Kaufman as to have a joint interest with Kaufman in the goods described in the indictment, and the goods would belong to Kaufman, and ought to have been so described in the indictment.”
    “ 2. If, under the agreement between Kaufman and Straus, the jury find that Straus was to be a sharer with Kaufman in the profits of the business merely, for the purpose of paying Straus for his services as salesman, and that Straus had not invested any money or other property in the business, then Straus was not a partner in the business, and the storehouse in which the business was carried on was the storehouse of Kaufman alone, and not the storehouse of Kaufman and Straus as alleged in the indictment.”
    “ 3. If the jury find from the evidence that the goods described in the indictment were purchased with the money of Kaufman alone, that no part of them were purchased at any time with the money or property of Straus, and that the only interest Straus had in any part of the goods was a possible or probable profit to be shared by him with Kaufman after the goods were sold, then the goods were the property of Kaufman alone, and Straus was not a joint owner of them with Kaufman.”
    These charges the court refused to. give, and instructed the jury as follows :
    “ 1. If you find from the evidence that, by agreement between Edward Kaufman and Samuel Straus, Jr., Kaufman furnished the money with which to purchase the goods, and Straus was to share in the profits of the business in return for his personal services, then goods taken from their possession under such agreement, if any were taken, are properly described as the goods of Edward Kaufman and Samuel Straus, Jr.; and if the storehouse referred to in the indictment was in the occupancy and under the control of Edward Kaufman and Samuel Straus, Jr., under such arrangement it is properly described in the indictment as the Storehouse of Edward Kaufman and Samuel Straus, Jr.”
    “2. If you find from the evidence that there was an agreement between Edward Kaufman and Samuel Straus, Jr., whereby Straus, though he furnished no money, was to give his personal attention to the business, and share the profits and losses of the same, then he had an interest in the goods in their possession under such agreement; and if any such goods were taken, they are properly described as the goods of Kaufman and Straus ; and if the storehouse, where such goods were, was in their possession and occupancy under such agreement, it is correctly described as the storehouse of Edward Kaufman and Samuel Straus, Jr.”
    
      “ 3. If you find that Kaufman and Straus were rightfully in the possession and control of the goods in the storehouse, that is sufficient proof of ownership of the goods; and if they rightfully occupied and used the room for a storehouse, it is sufficient proof of their ownership of the storehouse.”
    “ 4. If you find that Straus had no interest in the goods, nor any possession or control of them, then you can not convict the defendant, under this indictment* of either burglary or larceny.”
    To all which refusals to instruct, and instructions given, the counsel for plaintiff in error excepted. Upon the return of the verdict by the jury, the counsel for the plaintiff' in error moved to set it aside and for a new trial, for reasons therein stated, which was overruled by the court and excepted by counsel for plaintiff in error.
    The object of this proceeding is to reverse the judgment rendered on the verdict by the Court of Common Pleas.
    
      John C. Entrekin, for plaintiff in error.
    
      W. E. Evans, prosecuting attorney for the state.
   Rex, J.

Assuming that the instructions given by the court to the jury were pertinent to the evidence given at the trial, we are of opinion that the court did not err in refusing to instruct the jury as requested by the plaintiff in error. The instructions asked are, it seems to us, substantially set out in the charge as given.

The record does not set out the whole of the evidence given at the trial, but so much thereof is set out as to show that the question made at the trial, and upon which the plaintiff in error rested his defense, was, whether Kaufman and Straus were partners in the ownership of the storehouse and goods described in the indictment.

In the view we are inclined to take of the case, the re-suit could not have been in any wise affected, if the jury had found the ownership of the storehouse and goods in either Kaufman or Straus alone instead of in Kaufman and Straus as laid in the indictment, unless the court, before which the trial was had, found that such variance was material to the merits of the case, or prejudicial to the defendant. Section 91 of the code of criminal procedure, 66 Ohio L. 801, provides that “ whenever on the trial of any indictment for any offense, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof.....in the .....description of any matter.....whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which such trial shall be had, shall find that such variance is material to the merits of the case, or may be prejudicial to the defendant.”

The statement in the indictment of the names of the owners of the storehouse and goods is, in our opinion, the description of a matter named therein, and therefore the provisions of this section are applicable to any variance that may have appeared on the trial between such statement and the evidence offered in proof thereof; and as no finding appears on the record to the contrary, it will be presumed that if any such variance appeared at the trial, it was not material to the merits of the case, nor prejudicial to the plaintiff in error.

It is claimed that the construction we have given to section 91 is not warranted in view of the provisions of section 97 of the same code. We think otherwise. Section 97 was intended to take the case therein provided for out of the operation of the rule prescribed in section 91, and was not intended to declare the only rule in case of a variance.

The judgment of the Court of Common Pleas is therefore affirmed.

Welch, C. J., White, Gilmore, and McIlvaine, JJ., concurred.  