
    BOOHER v. STATE.
    (No. 4181.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Larceny <&wkey;40(4) — Variance.
    Upon an information alleging theft of 25 turkeys of the aggregate value of $35, proof that 5 turkeys were stolen is sufficient to support a verdict of guilty of theft of property under $50 in value.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 110, 125; Dec. Dig. &wkey;40(4).]
    2. Criminal Law <&wkey;636(8) — Trial — Conduct — Presence oit Accused — Reception oe Verdict.
    In a misdemeanor case in which a jail penalty is necessarily a part of the punishment, it is not necessary that defendant be present when the verdict is received, under Code of Criminal Procedure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1469, 1478-1480; Dec. Dig. <&wkey;>636(8).]
    Appeal from Stephens County Court, Jesse R. Smith, Judge.
    Pat Booher was convicted of theft of property. under $50 in value, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of property under $50 in value, and his punishment assessed at a fine of $50 and 90 days’ imprisonment in the county jail.

The information alleged the theft of 25 turkeys, of the aggregate value of $35. Under the evidence there were identified only 5 of the stolen turkeys, of the value of about $5. Appellant asked a special charge presenting the issue that, as the state alleged the theft of 25 turkeys, it must prove that appellant had stolen that number, and, if the evidence showed that a less number was taken by appellant, to return a verdict of not guilty. Appellant sold a number of turkeys to G. W. Troxall, and 5 of the turkeys so sold were identified as 5 of the stolen turkeys. Appellant asked a charge that, if the turkeys sold to G. W. Troxall — some 20-odd in number — were not the identical turkeys stolen from Sam Lockhart, to acquit him. The law of this state is that, although the information alleged the theft of 25 turkeys, yet proof that one turkey was stolen by appellant would authorize a conviction for the theft of the one turkey, and, as the evidence would authorize the jury to find that 5 of the turkeys sold by appellant to Troxall were a portion of the turkeys stolen from Lockhart, the verdict would be authorized, and there was no error in refusing the two special charges above mentioned. Grissom v. State, 40 Tex. Cr. R. 147, 49 S. W. 93; Pones v. State, 43 Tex. Cr. R. 201, 63 S. W. 1021; Kersh v. State, 45 Tex. Cr. R. 451, 77 S. W. 790.

The only other question raised is that the court erred in receiving the verdict in the absence of the appellant, this being a misdemeanor in which a jail penalty was necessarily a part of the punishment. This question has been before this court several times, and it has always held appellant’s contention not well taken under the provisions of our Code of Criminal Procedure. It is fully discussed in Wyatt v. State, 49 Tex. Cr. R. 194, 94 S. W. 219, and the provisions of the Code pointed out.

The judgment is affirmed.  