
    FERGUSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22, 1912.)
    Larceny (§ 40) — Issues, Proof, and Variance.
    Under an indictment alleging the theft of a check indorsed by P. and delivered by him to a person named, the admission of evidence showing the theft of a check indorsed by a person other than P. and by such person delivered to the same named person is a variance between the allegation and, proof, and is reversible error.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. §§ 102-126; Dec. Dig. § 40.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Sam Ferguson was convicted of theft of property of the value of over $50, and he appeals.
    Reversed and remanded.
    D. M. Short & Sons, of Center, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant ,was indicted, charged with theft of property of the value of over $50, and his punishment assessed at two years’ confinement in the penitentiary.

As we view this ease, we do not deem it necessary to pass upon but one question. The indictment alleged the theft of a check indorsed by Chas. Perkins and delivered by Perkins to E. P. Boles. The proof developed was the theft of a check indorsed by W. D. Killin and by Killin delivered to Boles. Appellant objected to the introduction of the testimony on the ground of variance in the allegations and the proof, reserving a bill of exceptions. He also filed a motion in arrest of judgment, and reserved a bill of exceptions to the action of the court in' overruling the motion, and complains of the action of the court in these respects in his motion for a new trial.

The evidence doubtless shows beyond peradventure of a doubt the theft of the check; but could evidence of a check indorsed by Killin, and by him delivered to Boles be held to be proof of a check alleged to have been indorsed by Perkins and by him delivered to Boles? It may be said that it was proven that defendant had stolen a check; but what check? And it may be further said that in pleading the case the pleader made a more minute description of the property than was absolutely essential to the validity of the indictment; but having alleged the theft of a particular check, describing it in detail, the proof must sustain the theft of the check alleged, and as described in the indictment.

On account of the error in admitting this check in evidence, the judgment will be reversed, and the cause remanded.  