Coleman v. State, No. 5072

No. 5072 | Tex. App. | Jun 16, 1886

Willson, Judge.

It is alleged in the indictment that the defendant did unlawfully, with intent to defraud, etc., sell and dispose of a brown horse, about ten years old, branded on shoulder DC, having theretofore executed and delivered to C.H. Davidson a mortgage, in writing, upon said horse, etc. The mortgage introduced in evidence describes the horse as it'is described in the indictment.

There is no positive evidence as to the brand upon the horse sold by defendant. One witness testified that he thought said horse was branded H. In the charge of the court we find the following paragraph: “If you believe the defendant executed the mortgage described in the indictment and offered in evidence, and he described the property in making such mortgage, and that Davidson relied on such description, and that defendant described the horse in such mortgage as being branded DC, and you find the horse so described was sold by defendant with the fraudulent intent alleged in the indictment, then it is not material to this case, and makes no difference whether the horse was, or is, actually branded DC or not, or what the age of the horse is, provided it was in fact the horse owned by defendant, and .mortgaged by him to "said Davidson, and described in the mortgage offered in evidence.”

This paragraph of the charge is, we think, in violation of that fundamental rule of the law which requires that the allegation and the proof must correspond. Having alleged the brand, age and color of the horse, such allegations became material, because descriptive of the identity of the animal, and, under the long established rule of the law, it devolves upon the State to prove these allegations strictly. (Allen v. The State, 8 Texas Ct. App , 360; Simpson v. The State, 10 Texas Ct. App., 681; Davis v. The State, 13 Texas Ct. App., 215.)

If the horse was incorrectly described in the mortgage, the indictment, after alleging the description of the animal as con-tamed in the mortgage, should have further alleged that such description was incorrect, stating wherein it was incorrect, and also alleging a true description of the horse which was mortgaged and afterwards sold. This would have avoided a variance between the allegation and the proof.

Opinion delivered June 16, 1886.

We consider it unnecessary to notice other questions presented in the record. Because of the erroneous charge above mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.