Woods v. State

• Decision Date: 13 January 1923
• Docket Number: A-4044.
• Citation: 211 P. 519,22 Okla.Crim. 365
• Parties: WOODS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

211 P. 519

22 Okla.Crim. 365

WOODS v. STATE.

No. A-4044.

Court of Criminal Appeals of Oklahoma

January 13, 1923

Syllabus by the Court.

In a prosecution for cattle theft, evidence considered, and held sufficient to sustain conviction.

A variance in a criminal case is an essential difference between the accusation and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense.

An information for cattle theft described the alleged stolen property as "five certain cows, a better description of said cows being to informant unknown, the same being the personal property of Morris Johnson." The proof showed that said cows were marked and branded. Held, there was no variance.

Appeal from District Court, McCurtain County; G. M. Barrett, Judge.

Willie Woods was convicted of cattle theft, and he appeals. Affirmed.

Jeff D McLendon, of Idabel, for plaintiff in error.

The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE J.

The plaintiff in error was tried and by a jury found guilty of larceny of five cows, and his punishment was fixed at eight years' imprisonment in the penitentiary. From the judgment rendered on the verdict on the 24th day of February 1921, he appealed by filing in this court on August 8, 1921 a petition in error with case-made.

The sole question presented for our determination is whether there was a fatal variance between the allegations and the proof.

The information charges that in said county and state on the date alleged Willie Woods, "then and there being, did then and there unlawfully, willfully, and feloniously take steal and carry away without the consent and against the will of the owner thereof five certain cows, a better description of said cows being to this informant unknown, the same being the personal property of Morris Johnson, with the unlawful and felonious intent upon the part of him, the said Willie Woods," etc.

The proof on the part of the state supports the allegations of the information, and there was no testimony offered on the part of the defendant.

Morris Johnson, the alleged owner of the cattle stolen, testified:

"Q. Now give the court and the jury a description of the cows you missed. A. I missed five head, four red ones, two of them dark red, and two of them light red, and one was redspotted, white-backed, and bald-faced.

Q. Were they branded? A. Yes, sir.

Q. What brands did they have on them? A. One of them was branded W B, another S J, the other three branded B E, two splits in the left and one in the right."

When the state called the next witness, the defendant made the following objection:

"The defendant objects to any further testimony on the part of the state because by the testimony of Morris Johnson

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