150 Ark. 425 | Ark. | 1921
The indictment against appellant charges grand larceny in the stealing of two cows, the property of George Carlson, and on the trial of the case the State proved the stealing of a steer, the property of Carlson.
There was no objection made to this testimony, but one of the grounds set forth in the motion for new trial is that the verdict is contrary 'to the evidence. In other words, in the proceedings below, appellant in apt time raised the question of sufficiency of the evidence; but did not, when the testimony was introduced, raise the question of the variance between the allegations in the indictment and the proof.
It is conceded by the Attorney General that there is a substantial variance between the indictment and the proof, and that if the question had been raised in apt time it would have been fatal to the State’s case, but it is insisted that it is too late to raise that question here for the first time. That the variance is material is settled by several decisions of this court. State v. McMinn, 34 Ark. 160; Keoun v. State, 64 Ark. 231. The case of State v. Haller, 119 Ark. 503, is not in conflict with prior decisions. We agree that the question cannot be raised here for the first time, but is it not raised by the assignment in' the motion for a new trial challenging the legal sufficiency of the evidence? We think that the result of a substantial variance between the allegations and the proof is necessarily a failure of proof, for the proof must conform to the allegations, and, unless it does, there is no evidence to sustain the verdict. Our previous decisions seem to be to the effect that a material variance between the allegations and the proof may be raised on appeal in the same way that the legal sufficiency of the evidence may be challenged. Wilburn v. State, 60 Ark. 141; Blevins v. State, 85 Ark. 195.
The judgment is therefore reversed, and the cause is remanded for a new trial.