
    C. L. Case v. The State.
    1„ Theft.— By the statutory definition of theft the averment of the possession from which the property was taken is made a necessary-constituent in the descriptive allegations of the indictment; and the evidence must substantially correspond with the allegation in this respect.
    
      2. Same — Variance — Case Stated.—Appellant was convicted of theft of a gun from the possession of one G., who was alleged to be the owner. The proof was that the gun was not stolen from the possession of Gr., the owner, but from that of one P., with whom it had been left for safe-keeping- by one S., who had borrowed it from G., the owner. Held, that there was a material variance between the allegation and the proof, and the conviction is set aside.
    Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.
    
      The material facts are clearly though concisely stated in the opinion of the court. A term of two years in the penitentiary was the punishment assessed against the appellant.
    
      H. E. Barnard and Oscar Bergstrom, for the appellant.
    
      H. Chilton, Assistant Attorney General, for the State.
   Willson, J.

The defendant was charged with the theft of a double-barreled shot-gun over the value of twenty dollars, the property of L. 0. Grothaus, and that he took the gun from the possession of the said Grothaus. The evidence was that the gun was not taken from the possession of Grothaus, but from the possession of one Louis Pope, in whose possession it had been left by one .Smith, who had borrowed it from Grothaus. The question here presented to us ls,—is there not a material and fatal variance between the allegation of possession and the evidence ? We think there is. In the case of Thomas v State, 1 Texas Ct. App. 289, where the indictment alleged that the property was taken from the possession of the owner, and the evidence showed that it was taken from the possession of a servant of the owner, who had it in charge as such servant, this court held that there was no variance between the allegation and the evidence, because the possession of the servant was, in law, the possession of the owner.

But in the case at bar the evidence fails to show any privity between the owner of the gun and the person from whose possession it was taken. In fact the evidence shows that-Pope was holding the gun not for Grothaus, the owner of it, but for one Smith. The allegation of the possession from which the stolen property was taken is made by the definition of theft a necessary ingredient in its description. Garcia v. State, 26 Texas, 209; Gadson v. State, 36 Texas, 350; Watts v. State, 6 Texas Ct. App. 263.

It being essential^ to allege the possession from which the stolen property was taken, the allegation must be proved as made, at least substantially. It will not do to allege the possession in one person, and prove it to have been in an entirely different person. This would be contrary to that wise and well-settled rule of the law that the allegation and the proof must substantially correspond.

Because of the variance between the allegation and the proof as to the possession of the property, this case is reversed and remanded.

Reversed and remanded.  