
    State of Iowa, Appellee, v. Harold Moe, Appellant.
    LARCENY: Indictment and Information — Allegation in re Possession. An allegation in an indictment for larceny as to the possession of the property at the time of the larceny is pure surplusage when the offense is otherwise fully charged.
    
      Appeal from Woodbury District Court. — W. G. Sears, Judge.
    February 13, 1923.
    Indictment for grand larceny. The indictment charged that the defendant did feloniously steal and carry away one Ford touring car of the value of $500, and the property of J. E. Hambliu, and that said property was in the possession of Yirgil Keefe at the .time of the taking. There was a verdict of guilty and judgment thereon, and defendant appeals.
    
    Affirmed.
    
      L. B. Forsling and II. F. Sims, for appellant.
    
      Ben J. Gibson, Attorney-general, and B. J. Flick, Assistant Attorney-general, for appellee.
   Evans,' J.

The ground of reversal urged upon our attention is predicated upon the fact that the instructions of the trial court wholly ignored that allegation of the indictment which laid the possession of the stolen car in Yirgil Keefe. The instructions submitted the case as though the indictment had charged the taking of the stolen property from the possession of its owner, Hamblin. It is urged that this created a variance between the instructions and the indictment. There was no variance as between the indictment and the evidence. From the" evidence, it appears that Yirgil Keefe was the owner of a public garage, and that Hamblin kept his car in a rented stall in such garage. The inference of the record is that the car was in daily use by its owner, and taken from and returned to the stall by him daily. .It was in this sense that Keefe was in possession, the car being stolen at night out of its stall in Keefe’s garage. The purpose of stating the name of the injured party in an indictment is to identify the particular offense. If the particular offense is otherwise sufficiently identified, the allegation is not essential, and even an error therein is not material. Code Section 5286. The allegation in this indictment laying the possession of the stolen property in Keefe was quite unnecessary, and may be deemed surplusage. It did not present a case of variance, because it was not inconsistent with the other allegations of the.indictment, nor with the evidence, nor with the instructions of the court. As to third parties, and especially as to trespassers, the possession of a bailee is the possession of his bailor. In this case, the indictment could have laid the ownership of the car in either Hamblin or Keefe. It added nothing to the essentials of the indictment to disclose the temporary bailment. The court was not required, therefore, to carry the same surplusage into his instructions. To do so might have resulted in prejudice to the defendant, in that it invited the attention of the jury to a subject with which it had nothing to do. The course adopted by the court was the better practice, in that it singled out and simplified the essential issues upon which the jury had to pass. There was no error. The judgment below is, accordingly, — Affirmed.

Preston, C. J., Arthur and Faville, JJ., concur.  