
    HEARD v. STATE.
    (No. 7772.)
    (Court of Criminal Appeals of Texas.
    June 20, 1923.
    State’s Rehearing Denied Oct. 31, 1923.)
    I.Criminal law &wkey;>325 — Presumption as to contents of packages in possession of express company held not to prevail against presumption of innocence.
    The presumption that packages in the possession of an express company, from certain consignors to certain consignees, contained articles which the consignees expected to receive from the consignors, will not prevail against the presumption of innocence, in a prosecution for the theft of such articles.
    2. Larceny <&wkey;55 — Evidence held insufficient to sustain conviction.
    Evidence held insufficient to sustain conviction for theft of certain goods from an express company.
    On Motion for Rehearing.
    3. Criminal law <&wkey;>4l9, 429(1) — Testimony as to contents of express packages based on Invoices inadmissible as hearsay.
    In a prosecution for theft from an express company of packages containing certain articles, testimony by the agent of the express company as to the contents of such packages, which he knew only from the invoice, helé hearsay and inadmissible.
    4. Names <&wkey;!6(3) — “Conway” and “Conroy” not idem sonans.
    Under an indictment charging the theft of property from one “Ellis Conway,” where the proof established that it was taken from under the care of one whose name was “Ellis Con-roy,” there was such a variance between the allegations and proof as would warrant reversal; the names not being idem sonans.
    ^xx^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Bradford Heard was convicted of theft, and he appeals.
    Reversed, and cause remanded.
    Geo. E. Gordon and J. P. Rogers, both of Houston, for appellant.
    J. Dixie Smith, Gr. Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of 10 years.

According to the indictment, appellant and another were charged with the theft of “one package, containing six ladies’ skirts; one paper carton, containing three ladies’ suits and fifteen children’s coats; and one paper carton, containing thirty-six pairs of ladies’ shoes.” The value of the articles was also given. The owner named was “Ellis Conway,” who was an agent of the American Railway Express Company at Houston.

The state relied on circumstantial evidence. From the testimony we understand that certain merchants in Houston were expecting shipments of merchandise from parties in eastern cities. The Dewis-Blumrich Dry Goods Company was expecting a shipment from Kitchener & Go., of New York, which included a package containing 4 ladies’ suits and 15 children’s coats. The other packages in the shipment were received on the 20th or 21st of August, but the one mentioned was missing. The Dell-Burt Shoe Company was expecting in a shipment from Hamburger Bros., of Boston, Mass., a package containing 36 pairs of ladies’ shoes. Part of that shipment was received, but the package mentioned was missing. The Pineus-Jarrett Dry Goods Company was expecting from Einstett & Joseph, of New York, a package containing 6 ladies’ skirts, but it was never received.

An employee of the American Railway Express Company testified that, just before noon on the 20th of August, he checked up the packages in his office and found none missing, but that later in the day he rechecked them, and found missing a package consigned to Lewis-Blumrich Dry Goods Company, from Kitchener & Co., of New York; one consigned to Dell-Burt Shoe Company, from Hamburger Bros., of Boston; and one consigned to the Pincus-Jarrett Dry Goods Company from Einstett & Joseph, of New York.

A witness for the state testified that on the 20th of August he saw a Eord car near the rear door of the American Railway Express Company, and saw two negroes coming from the back of the building. One of them had one package, and the other had two packages, under his arms, which they put into the car and drove -away. The witness hollered at them, but they did not stop. The witness declared that one of them was the appellant.

Another witness testified that he saw three negroes upon the premises of the American Railway Express Company at about the same time, and that one of them was the appellant. Appellant, by his own testimony and by that of others, presented the theory of alibi. None of the missing goods were found in his possession.

The sufficiency of the evidence is 'called in question.' The packages carried out of the express office and put into the automobile are not described. Whether they were cartons, such as are described in the indictment, whether they were large or small, and what they contained, is not shown by the witnesses who claimed to have seen the appellant and others in possession of the packages. In other words, they did not give any testimony which identified the packages as those which are alleged to have been stolen, other than the fact that they came from the express company’s place of business. Whether other packages were missing is not shown. What the packages contained is not j/roved. The merchants were expecting certain articles to be shipped by parties, shipped in Boston and New York, who were named. The packages from these parties consigned to the merchants in Houston were received by the express company. * What, if anything, was put into them by the shippers, is a matter upon which the record is silent. It may be that the packages contained the articles described in the indictment. If so, doubtless, this fact could be' proved. With the record before us, it is not proved.

That the articles described were in the packages mentioned is a matter of conjecture or presumption, arising from the fact that the consignees were expecting that the packages would contain the articles, and certain packages were in the hands of the express company in Houston, bearing the name of the consignors and consignees detailed in the evidence. We believe the presumption mentioned should not prevail against the presumption of innocence. The facts mentioned do not meet the requirements of the law and show to a moral certainty the guilt of the appellant of the theft of the articles described in the indictment.

The judgment is reversed, and the cause remanded.

, On Motion for Rehearing.

DATTIMORE, J.

A re-examination of the statement of facts but serves to further convince us of the correctness of the decision in our former opinion. The testimony of the agent of the express company as to the contents of certain packages, which he had never seen and which contents he only knew from the invoice, was the rankest kind of hearsay, and amounted to no evidence at all, and should not have been permitted. The witness could not know the contents of the packages from the invoices.

Our attention is also attracted by the further proposition that the indictment alleged the property to belong to Ellis Conway. The witness who testified that he was the agent of the express company, and had the goods under his care, control, and management, said his name was Ellis Conroy. In his Annotated P. G. pp. 11 and 12, Mr. Branch cites many authorities on the proposition of idem sonans. From an examination of them we think it clear that this court has never held, where there is such an apparent discrepancy in the spelling and sound of the two names, that Conway and Conroy could be idem sonans. Our conclusion is that they are not, and that the case might also, have been reversed for failure of proof and allegation to correspond.

The motion for rehearing is overruled.  