becomes a grave question in the effort to meet proof of another's fraudulent taking by proof of his own purchase, he cannot, by showing a sham purchase, whether in good or bad faith, excuse a fraudulent taking.' On trial for stealing a bale of cotton, if the proof shows that one of two bales placed together belonged to defendants, and they intended to take their own, but it is doubtful which they did take, they ought to be acquitted.' So, one indicted for larceny of timber may defend by showing a purchase by parol from a person who was believed by him to be the owner of the land. Such sale might operate as a license, and show that the taking was not animo furandi.' And the owner of goods, indicted for larceny of them from an attaching officer, may show that he intentionally left with the officer goods enough to satisfy the claim of the attaching creditor. In a trial for larceny of a sewing-machine sold on execution, and peaceably retaken by defendant, he can show that the machine was exempt, and that, before he took it, a lawyer advised him that the machine was his, and that he could take it wherever he could find it," and that, believing such advice to be correct, he took the means he did to get possession of the property. Upon a prosecution for larceny in the misappropriation of trust funds, evidence of declarations made by the owner of such funds in his life-time, tending to show a gift thereof to the accused, and a want of felonious intent on the part of the latter is admissible. But it is not competent for a defendant indicted 1 McAfee v. State, 14 Tex. App. 668. Randle v. State, 49 Ala. 14. 8 Morningstar v. State, 59 Ala. 30. Com. v. Greene, 111 Mass. 392. 5 People v. Schultz, 71 Mich. 315. 6 People v. Doyle, 58 Hun 535. To disprove the allegation of ownership of the horse, as alleged in the indictment, the prisoner offered in evidence a chattel mortgage, or bill of sale, of the animal, to a third party, executed while he was the acknowledged owner, and which antedated the sale under which the alleged owners claimed. Held, admissible.-Wells v. State, 11 Neb. 409. In a trial for theft of a horse, the proof showed that the accused had taken up and sold the animal openly, claiming it as his wife's The State was allowed to prove by the purchaser that the animal was taken away from him by another witness (who testified that it was his property), and that the accused had never indemnified him for his loss. The accused for larceny and who defends under a claim of ownership, to introduce in evidence a declaration made by him while in possession of the property alleged to have been stolen, showing how his asserted right or claim originated. Such declaration is no part of the res gesta, but merely a recital of a past transaction.' And under an indictment for stealing a portion of the cargo of a vessel, the defendant cannot be permitted to prove a custom for the officers of vessels to appropriate a small part of the cargo, or to show that instances had occurred where the mates of vessels, under a claim of right, had appropriated parts of the cargoes in their possession. So, it is no defense to a prosecution founded on a statute providing that any person to whom property shall have been delivered who embezzles or fraudulently converts it may be convicted of larceny, to show that accused, being a hotel-keeper, sold the property under claim of a lien on it as baggage, for the owner's bill. An inn-keeper's lien could not give him a right offered proof that he had indemnified the purchaser, but, on objection by the State, the court excluded the evidence. Held, error. The proof made by the State was calculated to show a fraudulent intent on the part of the accused, and he was entitled to controvert it by other evidence if he could. -Sigler v. State, 7 Tex. App. 283. A., jointly indicted with B. for theft of an estray cow, was tried first and acquitted. Held, that B., on B.'s trial, might prove by C. that when A. and B. were first found in possession of the cow, A. claimed it as his property.-Shelton v. State, 11 Tex. App. 36. Compare Knox v. State, Id. 148. On an indictment for theft, the owner of the stolen cattle testified that he missed the cattle from his range, and, hearing that defendant had them, went to defendant, who admitted the fact, but claimed to have purchased them. Defendant showed a bill of sale, stating that he had met a stranger, who inquired about cattle of the brand with which the cattle in question were marked, and he told the stranger that he knew where the cattle ranged, and bought the "chance" from the stranger. The cattle were delivered up to the owner when he claimed them. Defendant afterwards left the neighborhood. A witness testified that he had known defendant for twenty years, and that his reputation for honesty was good. Held, that the evidence was insufficient to support a conviction.--Holley v. State, 21 Tex. App. 156. The respondent was indicted for stealing a heifer; he admitted the taking, but claimed that he had lost one some three months before, and supposed this one was his own. Held, that the respondent's declarations made while hunting after his own heifer, and the fact of his hunting before the alleged larceny, were admissible.-State v. Daley, 53 Vt. 442. 1 Allen v. State, 71 Ala. 5. 2 Com. v. Doane, 1 Cush. 5. to sell the baggage; though it may be important, in connection with other circumstances, to show that he sold it in the exercise of a supposed right, and without criminal intent.' CHAPTER XXIX. VARIANCE. § 237. General rule that proof must agree with allegations. 238. Variance in description of property taken, generally. 239. Horses, mares, geldings, etc. 240. Money, bank bills, etc. 241. Variance as to ownership or possession whence taken. 242. Doctrine of idem sonans. 243. Variance as to value. 244. Charge of one crime-proof of another. 245. Review of questions of variance. 237. General rule that proof must agree with allegations. The rule is a general one, subject to but few exceptions, and these rather seeming than actual, that in all criminal prosecutions the proofs adduced to secure a conviction must agree with the facts stated in the indictment. Thus, to support an indictment for stealing two barrels of turpentine, it must be proved that the turpentine was in barrels when it was stolen.' Where an animal stolen is described by color 1 People v. Husband, 36 Mich. 306. Where the defendant was arrested under the charge of larceny, and at first denied having any of the stolen money, but afterwards offered to tell the police officer, who professed "to know all about it," where the money was, and said that it was buried under the hearth in his house; and the officer having failed to find the money in the place indicated, the defendant went to his house with the officer, raised a brick in the hearth, and disclosed the money; and "after pointing out the money, defendant said it was given to him by” a servant in the employ of the prosecutrix. Held, that this declaration was not admissible evidence for defendant, not being explanatory of possession, nor a part of the res gesta.-Cooper v. State, 63 Ala. 80. State v. Moore, 11 Ired. 70. fr and sex, the description must be supported by the proof.' Therefore, under an indictment for stealing a steer, there cannot be a conviction upon proof of stealing a bull.' Although an indictment need not describe the brand of the stolen animal, if the brand be described a variance in the proof thereof is fatal.' An indictment for theft of cattle need not charge them to be "work steers," or "beef steers," but, so charging, affirmative proof that they were "work steers," or "beef steers" is essential to a conviction. Proof to the contrary operates as a fatal variance. So an indictment for stealing an animal, is not supported by proof that the animal was dead when stolen. And an indictment for stealing certain currency and "six towels of the value of one dollar" is not sustained by proof of a larceny of a less number of towels together with other articles of some value.' But where the indictment was for larceny in "a certain building called and being a shop," and the building was proved to be a store, it was held that the variance was not material." So where the offense was charged to have been committed in a vessel in the first ward of the city of New York, and the proof was that the vessel was lying in the river at a wharf in the third ward, the variance was deemed not material." Again where an indictment alleged that defendant had been convicted of similar thefts on three former occasions, "at the Municipal Court, begun and holden at Portland," and it was proved that these convictions were before "the Municipal Court for the city of Portland," it was held there was no variAnd a joint indictment charging, as an overt act, that three persons put "their hands" into a pocket with felonious intent, may be sustained by proof that all three partici ance.' Rowell v. Small, 30 Me. 29. Allen v. State, 8 Tex. App. 360. Gray v. State, 11 Tex. App. 411; Cameron v. State, 9 Tex. App. 382. Com. v. Beaman, 8 Gray 497. Com. v. Savery, 101 Mass. 207. Com. v. Riggs, 14 Gray 376. And see Com. v. Annis, 15 Gray 197. People v. Honeyman, 3 Denio 121. State v. Regan, 63 Me. 127. pated in the act, though only one of them put his hand into the pocket.1 § 238. Variance in description of property taken, generally. Where defendant was charged with stealing five certificates of stock of a certain number, and the proof showed there was but one such certificate, and not a series of five, the variance was fatal.' So an indictment for stealing "one pair of boots is not supported by proof that the defendant stole two boots unmatched, being the right boot of two pairs.' And an indictment for larceny of a certain number of "bottles of " liquor, is not sustained by proof that the defendant feloniously drew liquor from casks into his own bottles which he had taken with him for the purpose. So defendant cannot be convicted of stealing a white woolen sheet, upon proof that he stole a blanket made of cotton and woolen-the warp being cotton and the filling woolen.' And where the indictment charges the stealing of a plow, and it is proved that the defendant stole a plowshare, the variance will be fatal. An allegation of theft of a pair of "buckskin gloves" is not supported by proof of theft of a pair of sheepskin gloves.' Again, an indictment for stealing a "white, black, and speckled-blue yearling" is not sustained by proof of taking a "white and and black speckled" heifer, or a "white and red and frosty colored heifer." And proof of theft of a "steer" will not sustain an indictment for stealing a "beef steer," and this, although the word "beef" was superfluous. So an indictment charging the stolen cattle to be "work steers" must be sustained by affirmative proof of such needless description.' And a conviction, under an indictment for grand larceny in 1 Com. v. Fortune, 105 Mass. 592. 2 People v. Coon, 45 Cal. 672. State v. Harris, 3 Harring. 559. 'Com. v. Gavin, 121 Mass. 54; 23 Am. Rep. 255. Alkenback v. People, 1 Denio 80. State v. Cockfield, 15 Rich. 316. 'McGee v. State, 4 Tex. App. 625. 8 Courtney v. State, 3 Tex. App. 257. Cameron v. State, 9 Tex. App. 332. 10 Gray v. State, 11 Tex. App. 411. 9 10 |