5 992 stealing a steer, cannot be had when the proof is that the animal stolen was a bull.' On the other hand, a charge of stealing a "hog" is supported by proof of stealing a "pig; or a "shoat;" and a charge of stealing a sheep is supported by proof of stealing a lamb. So where an indictment charged the larceny of chickens, and the proof showed that hens were stolen, there was no variance. On an indictment for stealing two animals, proof of stealing one warrants a verdict of guilty." And where the indictment identified the stolen animal by alleging that it was branded with a monogram shown, which was compounded of the letters J, A, and G, and the evidence showed that the animal was branded with those letters "connected," but did not show how they were connected, the variance was held not fatal.' Proof that a trunk, containing money, was taken and carried away from a house, will support a charge of taking and carrying away money. And an indictment for larceny from the house, is sustained by proof that the defendant took and carried away a watch from a post on which it was hanging, covered by the roof of the building." An indictment for stealing a "bull tongue," is supported by proof that defendant stole a particular kind of plowshare, 6. 1 State v. Royster, 65 N. C. 539. The indictment charged defendant with the theft of an animal belonging to one F., who testified that the animal taken would have been two years old in the summer of 1890" and had only one brand, and that was A F, of medium size. The evidence showed that the animal sold by defendant was a yearling, and would not be "two years old in the summer of 1890;" that it had an unusually large A F brand and also an IC brand. Held, that the evidence failed to support the conviction.-Whitlow v. State, (Tex.) 18 S. W. Rep. 865. Washington v. State, 58 Ala. 355. 8 State v. Godet, 7 Ired. 210. Stoneham v. State, 3 Tex. App. 594. Where an indictment charges the larceny of "a cow," and the evidence shows that the animal was "a heifer," and there is nothing to indicate that defendant was taken by surprise by such evidence, or that the court found that it was prejudicial, or material to the merits of the case, the variance, if any, is cured by Rev. St. 1879, § 1820, which provides that, unless the variance is prejudicial or material, defendant shall not be acquitted.—State v. Crow, (Mo.) 17 S. W. Rep. 745. Berry v. State, 10 Ga. 511. 'Burge v. State, 62 Ga. 170. usually known in the neighborhood in which he resided by that name.' And the charge that defendant stole "three bushels of corn," is supported by proof that he stole three bushels of corn in the ear. So an indictment for stealing a "silver teapot" and other articles of "silver" 66 ware, is sustained by proof of larceny of like articles only silver-plated, there being a good legal description after the false word "silver" was rejected. And on indictment for larceny of a "cast iron balance wheel," evidence that, in order to facilitate its removal and disposition to their use, defendants broke it into pieces and then disposed of it, did not constitute a variance.* § 239. Horses, mares, geldings, etc.—In some jurisdictions, under an indictment for stealing a horse, proof of theft of a mare is no variance. In Missouri, evidence that defendant stole a gelding, will support an indictment for stealing a horse; and the same rule obtains in Utah.' But the contrary doctrine is maintained in Kansas and Texas; a gelding being a eunuch, and not within the provision of the Criminal Code that words used to denote the masculine gender shall also include the feminine.' So, a ridgling (i. e., a half-castrated horse) is not a "gelding" within a statute providing against the theft of "any horse, gelding, mare, colt, ass, or mule," and an indictment charging the theft of a "gelding" is not supported by proof that the animal was a ridgling, but had 1 State v. Clark, 8 Ired. 226. Defendant was charged with stealing a shovel-plow, and it was proved that he stole the rim of a shovel-plow. Held, that it should have been left to the jury to determine whether the thing stolen was, according to common understanding, a shovel plow, as laid in the indictment.-State v. Sansom, 3 Brev. 5. 2 State v. Nipper, 95 N. C. 653. Goodall v. State, 22 Ohio St. 203. Gettinger v. State, 13 Neb. 308. People v. Pico, 62 Cal. 50; Davis v. State, 23 Tex. App. 210; Baldwin v. People, 1 Scam. 304. Contra, see Lunsford v. State, 1 Tex. App. 448. State v. Donnegan, 34 Mo. 67. 'People v. Butler, 2 Utah T. 504. • State v. Buckles, 26 Kan. 237; Persons v. State, 3 Tex. App. 240; Valesco v. State, 9 Tex. App. 76; Johnson v. State, 16 Tex. App. 402; Marshall v. State, 31 Tex. 471. Jordt v. State, 31 Tex. 571; 98 Am. Dec. 550. the appearance of, and was generally believed to be, a gelding.' 2 An indictment charging the stealing of a gray mare mule is supported by evidence that the animal stolen was a dark, irongray mare mule. And under an indictment describing the animal as a bay, it was held sufficient to prove that it was a bay or red sorrel.' So, where an indictment charged the stealing of two horses, and it was proved that defendant also stole saddles and bridles, the variance was held immaterial.* And, where the indictment was for stealing one gelding, of a dark bay color, and also two horses, worth $75 each, and it appeared from the record of the examining court that the defendant had been examined for stealing a dark bay horse, and also two horses, halter-chain and collar, worth $150, it was held that the variance was not material.' § 240. Money, bank bills, etc.-Coin alleged to be stolen is not capable of the same description and identification as other property, and therefore the same exactness in proof is not required. The jury must determine whether the coin proved to have been stolen is the same kind of coin as that charged in the indictment; and when several kinds are stated in the indictment, the proof should show that one or more of such kinds were among the kinds of coin stolen. Under an indictment charging that the defendant stole gold and silver coin of the value of two thousand dollars, and bank notes of the value of five thousand dollars, the denomination and nature of the coin need not be proved, nor the date of the bank notes, the bank that issued them, or the person to whom they were payable. Under an indictment charging larceny of "thirty dollars in money," proof of the larceny of "three ten dollar bills," is admissible. And an indictment charging the taking 8 1 Brisco v. State, 4 Tex. App. 219; 30 Am. Rep. 162. 2 State v. Hill, 65 Mo. 84. 8 Turner v. State, 3 Heisk. 452. 4 Jackson v. State, 14 Ind. 327. 5 Halkem v. Com., 2 Va. Cas. 4. People v. Linn, 23 Cal. 150. Berry v. State 10 Ga. 511. 8 State v. Freeman, 89 N. C. 469. often cents in the money of the United States of America, of the value of ten cents," is sustained, both as to description and value, by proof of a taking of "ten cents in silver." But under an indictment for larceny of "lawful money of the United States," proof must be made of taking gold or silver coin, or United States treasury notes, or fractional currency. The taking of national bank notes will not support the charge.' And an indictment for theft of money is not supported by proof of theft of checks for money.' So where the indictment charged the stealing of gold and silver coin to the value of $80, and the proof showed that $45 in currency was stolen, an amendment was held not permissible.* An indictment charging the larceny of treasury notes is sustained by proof that the property stolen was greenbacks.' And an indictment for larceny of "divers promissory notes payable to the bearer on demand, current as money in said Commonwealth," is sustained by proof of stealing bank bills." Where an indictment charges the theft of a bank bill, and the evidence shows the theft of a bank note, there is no variance. Nor is it a variance that the indictment described the bill as of the "Chatam National Bank," while the bill proved to have been stolen was of the "Chatham National Bank."" But an 1 Menear v. State (Tex.) 17 S. W. Rep. 1082. 2 Hamilton v. State, 60 Ind. 193; 28 Am. Rep. 653; People v. Jones, 5 Lans. 340. Under the Texas statutes pertaining to theft, in which, "money" is used as meaning legal tender coin or legal tender currency of the United States, an indictment charging the stealing of "twenty dollars in money" is not sustained by evidence of the stealing of a $20 bill, or a $20 bill American money.-Otero v. State, (Tex.) 17 S. W. Rep. 1081. 3 Lancaster v. State, 9 Tex. App. 393. 4 People v. Poucher, 30 Hun 576. 'Hickey v. State, 23 Ind 21. Proof of stealing "a five-dollar bill, of the value of five dollars," will not sustain a charge of stealing "a certain United States currency note, commonly called a greenback bill, of the value and denomination of five dollars."-Statum v. State, 9 Tex. App. 273. • Com. v. Gallagher, 126 Mass 54. Under Md. Code, art. 30, § 101, punishing the stealing of any "bond," "bill of exchange," "bank-note,' "promissory notes," ," "checks," and "certificates granted by or under the authority of this State or of the United States," an indictment for stealing "certain promissory notes" cannot be supported by evidence of the theft of a"silver certificate."-Stewart v. State, 62 Md. 412. Roth v. State, 10 Tex. App. 27. indictment for stealing bank bills will not be supported by proof that the defendant stole the orders of a railroad company on its treasurer.1 241. Variance as to ownership or possession whence taken. The proof of ownership must agree with the charge; thus, evidence of stealing joint property of two or more will not support a count for stealing the goods laid as the property of one; but objection to the variance ought to be taken on the trial. So evidence that the article stolen was the property of the wife of the person named as the owner in the indictment, acquired by gift after marriage, raises a fatal variance.' As does proof that the stolen article was community property of the alleged owner and her husband.* 1 Grummond v. State, 10 Ohio 510. * State v. Burgess, 74 N. C. 272; State v. London, 3 S. C. 230; Brown v. State, 35 Tex. 691; People v. Frank, 1 Idaho, N. S. 200; Hannahan v. State, 7 Tex App. 664. An indictment for grand larceny of goods, the property of J. P. K. and G. W. L., is not sustained by proof that the property belonged to the firm of K. & L., composed of J. P. K. and E. S. L., and, there being no sufficient description in other respects to identify the act, the error as to the allegation of ownership is not cured by Mansf Dig. § 2111, providing that, “where an offense involves the commission or an attempt to commit an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured is not material." Dictum in State v. Jordan, 32 Ark. 203, overruled -Blankenship v. State, (Ark.) 18 S. W. Rep. 54 A variance between the indictment and the proof, on trial for larceny from a dwelling-house, in that the former alleges the house to belong to one person, while the proof shows that it is owned by another jointly with him, is not fatal, since Rev. St Mo. 1879, § 1812, provides that, where any offense shall be committed upon or in relation to any property belonging to several owners, the indictment shall be deemed sufficient if it allege such property to belong to any one or more of them State v. Riley, 100 Mo. 493. An indictment alleged the name of the owner of the stolen horse to be Jesus Garcia It appeared on the trial that his real name was Jesus Garcia Bascus; Garcia being his father's name, and Bascus his mother's name, which he had assumed. He was not commonly known by either, but was called by his Christian name. Held, that there was no variance, and that the allegation of the father's name as a surname was sufficient.-Young v. State, (Tex) 17 S. W. Rep. 413. 3 Stevens v. State, 44 Ind. 469. 4 Wilson v. State, 3 Tex. App. 206. of a title bond, the property of A An indictment charged the stealing cuted to A. and B., who were husband and wife; that B. had died leaving |