Ball v. State

26 Ind. 155

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.