
    Jeremiah Williams v. The State.
    No. 3367.
    Decided December 13, 1905.
    Burglary—Indictment—Variance.
    Where the indictment charged that the burglarized house was owned and occupied by W. F. Tates, and the proof showed that the owner of the house and prosecuting witness was named F. W. E. Tates, the variance between the allegation and the proof was fatal.
    Appeal from the District Court of Panola. Tried below before Hon. Richard B. Levy.
    Appeal from a conviction of burglary of a private residence; penalty, five years imprisonment in the penitentiary.
    The opinion states the case.
    
      H. W. Nelson, for appellant.
    
      
      Howard Martin, Assistant Attorney-General, for the State.
   BROOKS, Judge.Appellant

Appellant was convicted of burglary, five years in the penitentiary being fixed as the punishment. The indictment charged that the house was owned and occupied by W. F. Yates. The statement of facts shows that the owner of the house and prosecuting witness was named F. W. E. Yates. This is a fatal variance between the allegations and the proof, and requires a reversal.

We notice that the charge of the court fails to define a breaking. However, this is not excepted to by bill or motion for new trial. We mention this in view of another trial.

Judgment reversed and the cause remanded.

Reversed and remanded.  