
    (85 Tex. Cr. R. 489)
    BERGFELD et al. v. STATE.
    (No. 5391.)
    (Court of Criminal Appeals of Texas.
    June 18, 1919.)
    Laeceny <©=>40(10, 11) — Indictment — Variance — Ownership and Possession.
    . There is fatal variance between a larceny indictment alleging that stolen, cotton was owned and in possession of a landlord and proof that tenant had possession and control of cotton under agreement that one-half net'proceeds from its sale belonged to landlord as rental.
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Paul Bergfeld, Frank Campbell, and Matt Campbell were convicted of theft, and they appeal.
    Reversed and remanded.
    P. E. Campbell, of Seguin, for appellants.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Paul Bergfeld, Frank Campbell, and Matt Campbell appeal from a conviction of theft.

One Adolph German owned a farm upon which one Mendoza lived and made a crop of cotton. Mendoza rented the farm and made a crop under an agreement to give German one-half of it for the use of the land. The contract was not in writing, but was ‘-‘like all ordinary rent contracts.” It' was contemplated that Mendoza should rent the íand, plant, cultivate, and gather the cotton, and haul it to the gin, and when sold the proceeds were to be divided. There was testimony that either of the parties had the right to sell the cotton after it was hauled to market. Mendoza gathered about 1,100 pounds of seed cotton and placed it in a pile in the field which he rented from German. The point at which the cotton was located was about 800 yards from German’s residence. Mendoza, about 11 o’clock at night, caused the cotton which was in the pile to be packed into sacks preparatory to hauling it to the gin on the following morning. He left it in the field, and on his return early in the morning three of the sacks were missing. The missing sacks were estimated to contain 400 pounds.

In the indictment Adolph German is named as the owner and the allegation made that the cotton was taken from his possession. It is claimed that there was a variance, a failure to prove the ownership as alleged. The cotton was not upon the premises under the control of German; it was not in his possession. It was on the premises that he had rented to Mendoza. It had been gathered by Mendoza, sacked by him, he was preparing to haul it to the gin, it was in fact, and under the agreement between them, under his care, management, and control, and whether he was the owner of it and German’s right was that of a lienholder for his rent, or whether they were owners in' common, for the purpose of this prosecution, is not material. See Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881, Sparks v. Ponder, 42 Tex. Civ. App. 431, 94 S. W. 428, Rogers v. Frazier (Civ. App.) 108 S. W. 727, and Texas Produce Co. v. Sorrell (Civ. App.) 108 S. W. 76, for discussion of the relative rights of landlord and tenant under similar contracts. There is a variance between the allegation and the proof in that ownership and possession were alleged in German and the proof showed it in another. This character of variance has uniformly been held material. Hall v. State, 22 Tex. App. 632, 3 S. W. 338; White v. State, 33 Tex. Cr. R. 94, 25 S. W. 290; Williams v. State, 42 Tex. Cr. R. 18, 57 S. W. 93.

The evidence is wholly circumstantial and quite inconclusive. Inasmuch as the judgment must be reversed because of the variance, and evidence upon another trial may present a different aspect, we refrain from discussing it in detail.

The judgment is reversed, and the cause remanded.  