<p>Burglary—Indictment—Variance.</p> <p>Where the indictment charged that the burglarized house was owned and occupied by W. F. Tates, and the proof showed that the owner of the house and prosecuting witness was named F. W. E. Tates, the variance between the allegation and the proof was fatal.</p>
Cited by 3 later decisions — most recently November 1964
3 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
Appellant was convicted of burglary, five years in the penitentiary being fixed as the punishment. The indictment charged that the house was owned and occupied by W. F. Yates. The statement of facts shows that the owner of the house and prosecuting witness was named F. W. E. Yates. This is a fatal variance between the allegations and the proof, and requires a reversal.
¶2
We notice that the charge of the court fails to define a breaking. However, this is not excepted to by bill or motion for new trial. We mention this in view of another trial.
