Tucker v. State ( 1925 )

Whitfield, J.

The information herein charges that the defendants “unlawfully and feloniously did receive and aid in the concealment of” “thirty-two head of cattle, of the value of Four Hundred Dollars, ’ ’ the defendants ‘ ‘ then and there well knowing that the said property, goods and chattels had before then been unlawfully and feloniously stolen, taken and carried away. ’ ’ The verdict is “ We the jury find the defendants, Elliot Tucker and Talbert Tucker, guilty to the extent of $320 worth of property. AA7e find the defendant, Charlie Tucker, not guilty. So say we all. ’ ’ This writ of error was taken to a sentence of four years in the penitentiary.

The brief filed by the Attorney General is as follows:

‘ ‘ The information alleges an unlawful receiving and aiding in concealment of thirty-two head of cattle known to be stolon and the presumption is that the information refers to live cattle.

“After reading the record carefully wo find no evidence that defendants received live cattle, but only carcasses and hides of dead animals.

“On account of this variance between the information and the proof we do not feel that we can endeavor to sustain the verdict. ’ ’

As the confession by the State of material error in the procedure, viz: a fatal variance between the allegata and probata in the ease, has support in the transcript of the record brought here on writ of error, the judgment of conviction is reversed, and the cause remanded for a new trial.

West, C. J., and Terrell and Strum, J. J., concur.