
    State, ex rel. Charles Haley, v. John E. McCutchan, Sheriff, et al. Charles Haley v. State of Nebraska.
    Filed December 15, 1919.
    Nos. 21146, 21218.
    1. Larceny: Variance. On a charge of larceny as bailee,‘the proof must show that the defendant was a bailee. When the evidence fails to sustain the charge, there is a fatal variance between the complaint and the proof offered.
    2. Evidence examined, held that it does not sustain the allegations of the information.
    Error to the district court for Hall county: James R. Hanna, Judge.
    
      Reversed and dismissed.
    
    
      Arthur G. Abbott and O. A. Abbott, for plaintiff in error.
    
      Clarence A. Davis, Attorney General, J. B. Barnes and William Suhr, contra.
    
   Aldrich, J.

The information charges defendant with larceny as bailee, under which charge defendant was tried and convicted, and has been confined in either the county jail or the state penitentiary since September, 1918. The record discloses that there is a fatal variance between the complaint and the proof offered to sustain the charge. The record also shows that at no time was defendant a bailee in this transaction; that he never saw nor spoke to the owner, nor did he receive the car from the owner; that there is no evidence in the record that defendant committed the crime of larceny as bailee.

This disposes of the proceedings in habeas corpus presented in connection with this ease, No. 21146.

The judgment in Haley v. State, No. 21218, is reversed and the action is dismissed.

Reversed and dismissed.

Sedgwick, J., not sitting.  