Poston v. State

• Decision Date: 30 March 1910
• Citation: 126 S.W. 1148
• Parties: POSTON v. STATE.
• Court: Texas Court of Criminal Appeals

126 S.W. 1148

POSTON v.STATE.

Court of Criminal Appeals of Texas.

March 30, 1910.

Appeal from Criminal District Court, Harris County; E. R. Campbell, Judge.

Sam Poston was convicted of a petty theft, and he appeals.Reversed and remanded.

Brockman, Kahn & Williams and E. T. Branch, for appellant.John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was convicted of a petty theft, and his punishment assessed at a fine of $10 and 10 days' imprisonment in the county jail.

The indictment charged appellant with the theft of one sack of walnuts, of the value of $5.The proof shows beyond controversy that it was a sack of mixed nuts, consisting of walnuts, almonds, hazelnuts, and niggertoes.Motion for a new trial was made in the court below, on the ground that the testimony did not support the allegations in the bill of indictment, and that there was a variance.We think this contention of appellant is correct.Warrington v. State, 1 Tex. App. 168, we think, is decisive of the question here presented.In that opinion the following rule is laid down: "But no allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage."And again: "Wherever there is a necessary allegation, which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description, as well as the main part, since one is essential to the identity of the other.See,...