
    CANTRELL v. STATE.
    (No. 10495.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.)
    1. Burglary &wkey;>7 — Larceny <&wkey;7 — In theft and burglary cases, “owner” is person in possession.
    In theft and burglary cases, “owner” is person in possession, having care, control, and management at the time.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    2. Burglary &wkey;>28 (6) — Where corporation president was named as owner in indictment, proof that manager had possession and conducted business of store burglarized held, variance.
    Where burglary indictment named corporation president as owner, proof that manager had possession, care, control," and management of the store burglarized stated variance.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Buell Cantrell was convicted of burglary, and he appeals.
    Reversed and remanded.
    Ed Roark and Baskett & De Lee, all of Dallas, for appellant.
    Sam D.' Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of three years.

The owner named in the indictment was M. P. Hawthorne. According to his testimony; he resided in the city of Dallas, and Was president of a corporation known as the H. & D. Mercantile Company, which owned a mercantile establishment located at Seago-ville, in Dallas county; that he had no personal knowledge of the burglary. He said:

“I had Mr. Dickson in charge of the store at that time, W. E. Dickson, who was manager of the store, and also interested in the store; and R. L. Hawthorne, a nephew of mine.”

Dickson testified in substance that he and R. L. Hawthorne, a relative of M. P. Hawthorne, conducted the business at the time the store was burglarized. To the same effect, in substance, was the testimony of R. L. Hawthorne.

The point was made upon the tria' and is here pressed for decision that there was a variance between the averments and the proof on the subject of ownership. In theft and burglary cases, the owner is the person in possession, having care, control, and management at the time. The evidence ■shows without conflict that Dickson had possession, care, control, and management of the property, and that he, within the meaning of the law, was the owner. See 1 Vernon’s Ann. Tex. C. C. P. 1925, p. 276, and cases collated; also Bergfeld v. State, 85 Tex. Cr. R. 489, 213 S. W. 986; Holland v. State, 87 Tex. Cr. R. 89, 219 S. W. 458; Guyon v. State, 89 Tex. Cr. R. 287, 230 S. W. 408; McGoldrick v. State, 89 Tex. Cr. R. 585, 232 S. W. 851; Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928; Embry v. State, 95 Tex. Cr. R. 488, 255 S. W. 190; Coney v. State, 100 Tex. Cr. R. 380, 272 S. W. 197.

Because of the refusal of the court to grant a new trial upon the grounds stated, the judgment is reversed, and the cause remanded. 
      <&wkey;For other cases see same topic and KEY-NUMBER 4n all Key-Numbered Digests and Indexes
     