So, also, it is a fatal variance to lay the possession in one person, and to prove it in another;' even though the person in whom the possession is incorrectly laid be the real owner.'

In California, though the information alleges that the check stolen was drawn in favor of one P.," and the evidence shows that it was drawn in favor of "A. G. P. or bearer," the variance is immaterial.' In Georgia, where an indictment alleged that the cotton stolen belonged to a man whose first initial was "J.," while the proof at the trial showed that it was "I.," there was no error in charging that, if the initial was written wrong by mistake in the indictment, the proof of ownership in the person bearing the true name was sufficiently made. In Indiana, there is no variance between an indictment charging the larceny of property belonging to Orange Brookshire, and evidence that the owner's name was Orange S. Brookshire or Orange Scott Brookshire. In Louisiana, a conviction of larceny of a horse will not be set aside because the

one child, and that the bond was taken from the possession of A. Held, that the variance was immaterial.-Dignowitty v. State, 17 Tex. 521. An information for stealing a cow alleged that it was the property of A. It was proved that the cow, which was running at large when stolen, was owned by A.'s mother-in-law, who was old and nearly blind, and that A. had the entire management and control of her property. Held, that the variance was ground for a new trial.-State v. Washington, 15 Rich. 39.

1 Hall v. State, 22 Tex. App. 632; Johnson v. State, 4 Tex. App. 594; Case v. State, 12 Tex. App. 228.

2

? Bailey v. State, 20 Tex. App. 68; Briggs v. State, 20 Tex. App. 106. A conviction for the theft of a cow cannot be had, under an indictment which alleges the ownership in B. and the possession in A. and W., where the evidence shows that the possession was not in A and W. jointly, but in B. alone.-Owens v. State, 28 Tex. App. 122.

An indictment for the larceny of a box of tobacco charged that it was taken from the agent of the steamship company. It was proved that it was taken from the steamer, and had never been in the possession of the agent. Held, that the variance was fatal.-Radford v. State, 35 Tex. 15. The indictment for the theft of a bale of cotton laid the possession in the owner. The proof showed that the owner took the cotton to a gin to be ginned and baled, and that after this was done it was put in the gin-yard with other cotton; that the owner took it from there and removed it some fifty yards from the gin-house. Held, that there was no variance between the allegation and the proof.-Doss v. State, 28 Tex. App. 506.

'People v. Arras, 26 Pac. Rep. 766.

4 Bernhard v. State, 76 Ga 613.

'Miller v. State, 69 Ind. 284.

indictment alleges it to be the property of one E., and the proof shows it to belong to one C.' In Missouri, a failure in an indictment under Rev. St. 1879, § 1561, for obtaining property by trick or fraud, to charge the true ownership, is not fatal under Rev. St. 1879, § 1820, providing that a variance in the ownership of property shall not be ground for acquittal unless the court finds the variance material and prejudicial to defendant.'

§ 242. Doctrine of idem sonans.-The rule as to the materiality of variances between the name as stated in the indictment and as proved on the trial, is that the mere misspelling of a name, whether of the accused or a third person, is not fatal to the indictment, unless the difference causes a material change in the pronunciation of the name; whether it does or not is, on the trial of the general issue, a question for the jury and not for the court; or where the court does pass upon it, a

1 State v. Harris, 42 La. An. 980. 'State v. Myers, 82 Mo. 558.

In the following instances the variance between the allegation and proof as to the owner's name was held fatal: Charge, Samuel F. Merritt; proof, Stephen F. Merritt.-People v. Hughes, 41 Cal. 234. Charge, Michael Wandler; proof, J. M. Wandler.-State v. Taylor, 15 Kan. 420. Charge, Stephen Daniel; proof, Philip Daniel.-Hensley v. Com, 1 Bush. 11; 89 Am. Dec. 604. Charge, John Peter Sinish; proof, Peter Sinish.--State v. English, 67 Mo. 136. Charge, Gabriel Carter; proof, Carter Gabriel.— Collins v. State, 43 Tex. 577. Charge, J. W. Flanagan; proof, Major Flanagan.-Perry v. State, 4 Tex. App. 566. But see Robinson v. State, 68 Ga. 832.

In the following instances the variance was held immaterial or cured by instructions, or by verdict: Charge, J. H. Dargin; proof, John H. Dargin, by which latter name he was frequently called, and so wrote his name.-Thompson v. State, 48 Ala. 165. Charge, A. B.; proof, A. B. Junior.-State v. Grant, 22 Me 171. Charge, D. G. Humphreys; proof, David George Humphreys.- Unger v. State, 42 Miss. 642. Charge, Wabash Railroad; proof, Wabash Western, there being but one railroad in the county where the venue was laid.—State v. Sharp, (Mo.) 17 S. W. Rep. 225. Charge, Elizabeth Moore; proof, Betsey Moore.-State v. Godet, 7 Ired. 210. Charge, S. L. Williams; proof, Samuel L. Williams.-State v. McMillan, 68 N. C. 440. Charge, T. C. Lucky; proof, C. C. Lucky.Brown v. State, 32 Tex. 124. Compare State v. Bell, 65 N. C. 313. Charge, H. Hailey; proof, Hiram K. Hailey-McAfee v. State, 14 Tex. App. 668. Charge, Columbus C. L.; proof, Christopher Columbus L., where it appeared that he was as well known by the name alleged as by any other.-Lott v. State, 24 Tex. App. 723.

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stringent construction will not be applied. Thus, "Ann Fooley," is idem sonans with "Ann Foley;" and "F. A. Fater" with "F. R. Fater;" but "Smith & Weston" is not idem sonans with "Smith & Wesson; nor "E. S. Woods" with "E. S. Wood."4 Where an indictment alleges the name of the owner of the stolen property to be "Fraude, while the name as actually and properly spelled is "Freude," the question of variance should be submitted to the jury; and it is error to rule that the names are idem sonans.'

§ 243. Variance as to value.-Slight variances as to value are disregarded, as that the alleged value of the animal stolen was $15, while the proved value of the animal was $12 or $15.* So where the indictment alleges the stolen property to be gold certificates of the United States, of the value of $1,000 each, payable to bearer, and the proof shows the certificates to have circulated at their nominal value, the description and value of the property sufficiently appear.' Where the note alleged to be stolen was in fact for $2,300, and interest and all taxes, but was described in the information as being for $2,300, this was not a fatal variance, but such a substantial identification as would protect the accused from another prosecution for the same offense, and he should not be permitted to say that it was not described with the utmost particularity. In such case the jury may properly consider any evidence whence the value of the note may be inferred; the State being only bound to prove some value."

§ 244. Charge of one crime-proof of another.-Proof of embezzlement will not support an indictment for larceny, notwithstanding the statute declares that a person who embezzles money or goods, shall be held to have committed larceny.' So

Com. v. Simpson, 9 Metc. 138; Com. v. King, 9 Cush. 284; Fulton v.

1

an indictment for larceny is not supported by proof that the title was acquired from the owner by false representations; or by proof that defendant received or purchased the goods, knowing them to be stolen, although by statute the punishment for the offense proved is the same with that charged.' Again, an indictment for simple larceny is not sustained by proof of larceny; and an indictment for larceny from a house is not sustained by proof of theft from a tent; or by proof that the stolen property was taken while hanging at and outside of the store door, on a piece of wood nailed to the door, facing and projecting towards the street; or by evidence that the owner of a stock of watches in a shop placed two of them in the defendant's hands for inspection, and that he ran away with them while the owner's back was momentarily turned." So an indictment for an attempt to commit larceny is not susState, 13 Ark. 168; Com. v. Berry, 99 Mass. 428; 96 Am. Dec. 767. Pen. Code N. Y. § 528, defines "larceny" under two subdivisions: (1) One who takes property from the possession of the true owner, and appropriates it to his own use; (2) one who, having possession of the property as servant, agent, clerk, etc., appropriates it to his own use. The indictment charged that defendant "did take, steal, and carry away" certain gold certificates, the property of a bank. The evidence showed that the certificates were taken by a teller of the bank. Held, that there was no variance between the proof and the indictment.-People v. Dunn, 53 Hun 381.

1 Pitts v. State, 5 Tex. App. 122. The complaining witness testified that defendant informed the witness that he had a large claim against T., which could only be obtained by employing other money, and, if the witness would furnish $1,000, he would furnish more, and, with the assistance of one E., the money could be obtained from T., and it would then be divided among the three; that the witness assented, and the four persons met, and the money was staked in a game of cards, and passed to T., who retained it; and that the witness believed all that had been said to him until after he lost his money. Held, that the proof does not make out a case of larceny by false pretenses, such as to constitute a variance from the indictment, because the false representations made were not set out therein.-People v. Dean, 58 Hun 610.

2 Ross v. State, 1 Blackf. 390; Gaither v. State, 21 Tex. App. 527.

8 King v. State, 54 Ga 184; Harris v. State, 17 Tex. App. 132. Where the indictment charged the defendant with stealing money from the "person" of another, held, that proof that the money was delivered to the defendant's wife in one city, to carry to another, did not sustain the charge.—DeGaultie v. State, 31 Tex. 32.

4 Callahan v. State, 41 Tex 43. 5 Martinez v. State, 41 Tex. 126. Com. v. Lester, 129 Mass. 101.

tained by evidence showing an attempt to commit robbery.' Proof, however, of burglary, on the trial of an indictment for larceny, does not entitle the defendant to an acquittal.' In Texas, under Code, art. 714, § 6, a conviction may be had for theft of property of the value of more than $20, although the evidence shows such a "putting in fear" as would have sufficed to sustain a prosecution for robbery.' And a conviction under an indictment for theft of cattle will not be set aside merely because the evidence would sustain an indictment for illegal marking and branding.*

§ 245. Review of questions of variance. The effect of a variance between allegation and proof in a criminal action is to vacate the verdict and leave the defendant charged as before, and liable to be tried again. But a conviction will not be reversed unless the variance was a material one, and is brought to the attention of the trial court, in order that such court may rule upon its character as prejudicial or otherwise."

1 State v. Craft, 72 Mo. 456.

2 Wyatt v. State, 1 Blackf. 257.

4

Skipworth v. State, 8 Tex. App. 135.

* Smith v. State, 8 Tex. App. 141. But see Lopez v. State, 28 Tex. App. 343.

State v. Sherrill, 82 N. C. 694.

• The indictment having described the cow as "one red brindle white lineback cow," and the evidence being that the cow stolen was a "red and white spotted line-back cow," and it not appearing from the record that the variance between the indictment and the proof was brought to the attention of the trial court, it cannot be considered on appeal under Rev. St. Mo. 1879, § 1820, providing that a variance between the charge in the indictment and the evidence offered in poof thereof, in the description of any matter or thing, shall not be ground for acquittal, unless the trial court shall find that such variance is material, and prejudicial to the accused.-State v. Ballard, (Mo.) 16 S. W. Rep. 525.