
    [No. 2074.]
    John Hall v. The State.
    Theft—Variance.—Indictment for horse theft alleged both the ownership and the possession of the animal to have been in the same person at the time it was stolen. The evidence sustained the ownership as alleged, but proved that the animal was stolen from the possession of a different person, who was holding the same for the owner. Held, a fatal variance between the allegation and the proof of the possession.
    Appeal from District Court of Bee. Tried below before the Hon. H. C. Pleasants.
    The conviction was for the theft of a horse, and the penalty imposed was a term of five years in the penitentiary.
    The opinion discloses the case.
    Ho brief for the appellant.
    
      J. H. Burts, Assistant Attorney General, for the State.
   Willson, Judge.

The indictment alleges that J. G. Dohl was the owner of the stolen horse, and that said horse was taken from the possession of said J. G. Dohl. The evidence shows that J. G. Dohl was the owner of said horse, but was not in possession thereof at the time the same was stolen. Said horse, at the time of the theft, thereof, was in the possession of H. Dohl, who was holding the same for said J. G. Dohl, the owner. There is therefore a fatal variance between the allegation and the proof, with respect to the possession of the animal at the time of the theft.

In view of the facts of the case, the indictment should have alleged both the ownership and possession of the horse in H. Dohl, or it should have alleged the ownership in J. G. Dohl, the general owner, and that it was taken from the possession of H. Dohl, who was holding possession thereof for said J. G. Dohl. (Bailey v. The State, 18 Texas Ct. App., 426; Frazier v. The State, Id., 434; Briggs v. The State, 20 Texas Ct. App., 106; Littleton v. The State, Id., 168; Bailey v. The State, Id., 68.)

Opinion delivered January 8, 1887.

Because the allegation as to the possession of the animal at the time it was stolen is not supported, but is contradicted, by the evidence, the judgment is reversed and the cause is remanded.

Reversed and remanded.  