Cases Argued and Adjudged in the Court of Appeals of the State of Texas (Volume 4)

This historic book may have numerous typos or missing text. Not indexed. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1879. Not illustrated. Excerpt: ... Opinion of the court. sufficient to support the verdict and judgment; and that the judgment be affirmed. Affirmed. Sam Mcgee V. The State. 1. Indictment--Evidence.--Though descriptive averment be unnecessarily minute, they must be proved as made. 2. Same--Variance.--Information charged theft of a pair of buckskin gloves. By the evidence the gloves were described as sheepskin gloves. Held, a fatal variance between the allegation and the proof. Appeal from the County Court of Smith. Tried below before the Hon. G. W. Smith. O. W. & Horace Chilton, for the appellant. George McCormick, Assistant Attorney-General, for the State. Winkler, J. The description given of the property, in both the information and the affidavit upon which it is based, is ' one certain pair of buckskin gloves. The evidence describes them as sheepskin gloves. The rule of law is, as stated by Mr. Greenleaf, that when a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of description must be proved; for they are all made essential to the identity. Thus, says the writer, hy way of illustrating the application of the rule, in an indictment for stealing a black horse, the animal is necessarily mentioned, but the color need not be stated; yet, if it is stated, it is made descriptive of the particular animal stolen, and a variance in the proof of color is fatal. 1 Greenl. on Ev., sec. 65. Vol. iv.--40 Syllabus. The rule laid down by Mr. Greenleaf, as above, is quoted in the opinion of the Supreme Court in Hill v. The State, 41 Texas, 253, where it was said by the court: This rule is substantially recognized in the decision of the court. In that case it was said that the indictment describes the hides by giving c...