¶1(concurring specially). The sole question presented in this case is whether, by reason of the difference between the description of the cattle contained in the information and that given in the evidence on the trial, there was a fatal variance.
¶2After careful consideration of this question, I have come to the conclusion that, upon the record here, there is, under our statute, no such variance. Shortly after the commencement of the trial, the complaining witness was called as a witness for the prosecution. Almost at the outset of his testimony he was asked to, and did, describe the animals which he claimed the defendant had stolen from him. No objection was offered to such testimony on the ground that it was variant from the information, or upon any other ground. Later, when counsel for the prosecution suggested that the jury be taken down to the corral to view one of the animals which the defendant was charged with having stolen, and which the complaining witness had identified as one of those stolen from him, defendant’s counsel stated that he had no objection to the jury viewing such animal. So far as the trial is concerned there is nothing to indicate even the remotest chance that the defendant was prejudiced by the variance between the property de*482scribed in tbe information and that proven. There was no contention that the complaining witness had been deprived of, or that the defendant had stolen from the complaining witness, anything except the two -animals to which the evidence referred. In these circumstances it seems to me that the case falls squarely within § 11,088, Comp. Laws 1913, which provides:. “Neither a departure from the form or mode ' prescribed in this Code in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”