Coleburn v. State (133 S.W. 882, 1911)

DAVIDSON, P. J.

Appellant was convicted of stealing 100 pounds of honey valued at $10.

The information alleges special ownership in Mrs. Choat and general ownership in Bth-eredge, and also alleges want of consent of both owners. Mrs. Choat was placed on the-stand, and testified that Mr. Etheredge brought some beehives to her place three or-four years ago. “He did not leave them in my possession, and I had nothing whatever to do with them.” Having alleged special' ownership in Mrs. Choat, it was necessary for the state to prove it. She wás evidently placed upon the stand to sustain that allegation. in the information, but utterly failed to do so. In fact, she excludes the idea that she had any ownership in, or possession of, the beehives. This under our authorities would constitute a fatal variance. Ownership and possession of property as alleged in the indictment must be proved as alleged, or the variance will be fatal to a conviction. Williams v. State, 26 Tex. App. 131, 9 S. W. 357; Briggs v. State, 20 Tex. App. 106; Hall v. State, 22 Tex. App. 632, 3 S. W. 338. For further collation of authorities, see White’s Ann. Ben. Code, § 1507.

.Appellant requested the court to charge the jury that the possession of recently stolen property is only a circumstance against the defendant, and, if they should find beyond a reasonable doubt that the comb found at the defendant’s house was comb that came out of the gums of Etheredge, and if the defendant gave a reasonable explanation of his possession of said comb, then it would devolve on the state to prove beyond a reasonable doubt the falsity of said explanation, and, if the state did not do so,, they would not consider this as a circumstance against him. This charge was refused. As written, the court declined it on the ground that appellant was not charged with theft of comb. This charge is subject to the criticism that it is upon the weight of the evidence, but upon another trial the substance of this charge should be given the jury. Under all the testimony, appellant was charged with the theft of honey taken from three bee gums. This honey was in the comb when taken from the gums. Etheredge testified that his bee gums were peculiarly constructed by having wire inserted in the inside which he describes, but unnecessary here to be detailed, and it was by means of this wire found in some honeycomb at appellant’s residence that the state sought to prove that appellant, took Ether-edge’s bee gums. Etheredge emphasizes this testimony by stating that he himself invented this peculiar character of bee gum. At appellant’s residence was found what the witnesses term some balls of comb from which the honey had been squeezed — one or more, balls — and in the ball or balls was found this peculiar character of wire that Ether-edge claims was to be found in his bee gums. Appellant, to meet this, introduced evidence to the effect that another party gave him some honey in which said wire was found. It became a question before the jury of some gravity. We do not think that the court’s refusal to give the charge on the ground that he was not charged with theft of comb is sustained by the evidence. As above stated, ■somebody took three of Etheredge’s bee gums,' and took the honey from the bee gums. The honey at appellant’s house was found in a jar strained and one of the circumstances relied upon by the state was the fact that wire was found in the balls of comb which were found at appellant’s place of residence. Of course, the deduction was to be had that the honey had been taken in the comb from the gums and strained by appellant at his residence, and the comb laid aside. If the witness testifying for the defendant gave appellant some honey from which he had squeezed the honey into the jar, it would probably account for the balls of comb, mentioned by the state’s witness, favorably to appellant, or, at least, it would have been a circumstance to be considered by the jury favorable to appellant’s side of the ease. This much is said in regard to this charge in view of the fact that there will be another trial of the ease.

The judgment is reversed and the cause is remanded.