Ball v. State

26 Ind. 155

• Court: Indiana Supreme Court
• Decided: May 15, 1866
• Status: Published

Opinions

Erazer, J.

This was an information for forcible entry and detainer, under sec. 12 of the misdemeanor act. The premises were thus described in the information: “the following described land, and the first story of the building situate thereon, viz., the north-east corner of lot number one hundred, as designated on the original plat of the town of Lafayette,” &e. The proof showed the premises entered to be a building situated on the lot, thirty .feet from the east line of it, as laid down on the plat referred to, and extending to the north line; that more than twenty years ago the city purchased that portion of the lot lying east of the building, for a market space; that it has ever since been used by the public for that purpose, and as a street, and has no buildings upon it; that the lot as platted was fronted on the north by Main, and on the east by Fifth street, and was one hundred and thirty-two feet deep from east to west.

As originally platted, there is certainly nearly one-fourth of the lot lying east of the premises proved to have been entered. Its use as a market space and highway did not change the plat as made many years before. It is still a part of the lot “ as designated on the original plat of the town of Lafayette

The rule of law, as wo understand it, is that in matters of local description, in such a case as this, any variance between the indictment or information and the evidence, will be fatal. Rex v. Cranage, 1 Salk. 385; 2 Stark. Ev. 1571; 1 Greenl. Ev. § 62.

The judgment is reversed, and the cause remanded for a new trial.