
    RANDELL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 31, 1911.)
    Larceny (§ 40) — 'Variance—Description of Property — Evidence—Sufficiency.
    Where a complaint charged the stealing of certain personalty, and an information charged the stealing of other articles, though the testimony at the trial may have tended to show that accused stole the goods charged in the complaint, but there was no evidence in the record to show that he stole the articles described in the information, the conviction will be set aside.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 102-126; Dec. Dig. § 40.]
    Appeal from Gregg County Court; J. H. HcHaney, Judge.
    Gert Randell was convicted of larceny, and appeals.
    Reversed and remanded.
    E. H. Bramlette, for appellant.
    C. E. Lane, 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
    
   PRENDERGAST, J.

By complaint appellant was charged with stealing “two pairs of silk hose of the value of $3.50, four pair of gloves of the value of $6, and one pair of leggings of the value of 50 cents”; the same being the property of T. D. Coupland. The information charged that appellant stole from T. D. Coupland “one fascinator of the value of $1.00 and one pair of hose of the value of 25 cents.” On a trial appellant was convicted, and his punishment assessed at a fine of $100 and 30 days’ imprisonment in the county jail.

The testimony by the state may tend to show that the appellant may have stolen the goods charged in the complaint', but there is no evidence in the record tending to show that he stole the articles described in the •information. There are many questions raised by the appellant; but it is unnecessary to decide any of them, except where he claims “the verdict of the jury is contrary to the law and the evidence, and the verdict is wholly unsupported by the evidence, and if any goods were taken from T. D. Coupland, as alleged in the information herein, there is no evidence tending to show that defendant ever had any connection with those identical goods.”

The appellant’s contention about the verdict of the jury and the goods charged to have been stolen in the information is correct. Appellant cannot be charged by information to have stolen one thing, and the evidence show he may have stolen some other entirely distinct and different thing, and the conviction stand. Besides this, the complaint does not charge that the property was taken without the consent of the alleged owner. This may be a clerical error in copying.

The judgment is reversed, and the cause is remanded, so that the county attorney can file a new information, if he desires to do so, and the complaint will sustain it.  