
    
      Ex Parte State.
    
      Arson.
    
    (Decided November 27, 1913.
    63 South. 1006.)
    
      Arson; Variance. — Where the indictment alleged that a corn crib was burned, as provided by section 6296, Code 1907, it is not sustained by proof that a barn was burned.
    (McClellan and deGraffenried, JJ., dissent.)
    Certiorari to Court of Appeals.
    Petition by tbe State of Alabama on application of tbe Attorney General for certiorari to review tbe judgment of tbe Court of Appeals reversing and remanding tbe case of Wright Savage v. State, 8 Ala. App. 334; 62 South. 999, wherein tbe Court of Appeals held that there was a variance between tbe allegations of tbe indictment that a corn crib was burned, and tbe proof that tbe building burned was a barn.
    Writ denied.
    R. C. Brickbll, Attorney General, and W. L. Martin, Assistant Attorney General,
    for tbe State. Tbe construction given section 6296, Code 1907, in tbe case of Jaclcson v. State, is too narrow and technical, and tbe Court of Appeals erred in bolding that there was a variance between tbe allegations of tbe indictment, and tbe proof in this case.
    
      Jones & Mabry, for appellee.
    There was a fatal variance between the allegations and the proof. — Jackson v. State, 145 Ala. 54.
   Dowdell, C. J.

— The petition for writ of certiorari is denied.

Anderson, Mayfield, Sayre, and Somerville, JJ., concur.

McClellan and de Graffenried, JJ.,

dissent, for that the ruling is made to depend upon Jackson v. State, 145 Ala. 54, 40 South. 979, and the opinion is entertained that that decision is unsound in its very narrow and technical construction or interpretation of Code 1896, § 4837, now, in substance as presently important, Code 1907, § 6296.  